Some cases are hard to try. These cases demand our best. What follows is not even close to a complete set of rules of the road for trial practice. Instead, these are points to remember when your case is extra tough and you must be extra tough, too.
1. Polarize the trial when credibility is the key issue. Winning almost always depends on the jury believing your client and disbelieving the other side’s main witnesses. Do not make the choice mushy. You do not want the jury to believe anything the other side says. You must convince the jury they are lying even when telling the truth, i.e. that even the facts they may be right about were selectively chosen and slanted. Don’t give an inch.
2. Find your narrative. Your case has weaknesses, if it did not, it would have settled. It is not enough to acknowledge rough patches before the other side does it for you. Your winning narrative must take account of your weaknesses. Put another way, you know you have a tough case, and so does the judge and your opponent. But there is no reason to let the jury in on this secret.
3. The jury wants to see you fight. The jurors have been pulled reluctantly from their lives. They need to see your passion for your case and client. They expect to be entertained.
4. Find your right voice. Different cases evoke different emotions or emotional ranges. In your voice and manner you must calibrate the right emotional balance, say, between anger and sympathy, for the jury to adopt.
5. Make the judge earn her pay. Today many judges exercise tighter control over the lawyers. You must respect the bench but don’t live in fear of being smacked, and don’t be deterred from trying your case as you deem best.
6. Don’t let bad rulings stop you. The tougher the case, the more likely that the admissibility of evidence or the propriety of arguments will be contested, and therefore, the more likely you will suffer rulings, in limine or during trial, that you disagree with. Don’t be content making your record. Wait for the opportune moment to try again. As often as not, your opponent will overplay his hand and inadvertently open the door to what previously was excluded.
7. In a long trial, guard against fatigue. In trials lasting more than a week the jury and even the judge can become impatient. Do not respond by rushing. Important points will be lost. Worse, you (of all people in the courtroom) do not want to endorse a “let’s get this over with” attitude.
8. Close with a bang. You have one last shot, don’t waste it. Don’t assume the jury is troubled by the things that troubled you. Give them the most powerful statement of your case you can muster and make them believe that the world depends on getting the right verdict. Don’t waste a single word.
This list is not exhaustive and it is not exclusive to proverbial tough cases. But the tougher the case, the more important these rules become.