If the wheels begin to fall off your case, grab the ratchet

A friend of mine who is an outstanding plaintiffs' attorney recently gave a speech on the subject of perceiving the unmistakable deterioration of your case.

When this subject comes up, I always think of the great New York plaintiffs' lawyer Moe Levine. He once wrote that he was involved in a trial before an abusive judge who did everything he could to undermine his case. Several days into the proceedings, while the judge and jury were present, Moe began packing his briefcase, prompting the judge to ask what he was doing. Moe responded that it was clear to him that there was no chance of a fair trial, so he was leaving. He indicated he was taking a non-prejudicial dismissal and left.

Maybe Moe was being apocryphal, but surely at some point we've all wanted to just pack up and leave when a trial starts to devolve into disaster. However, such a dramatic courtroom walkout is not likely in the cards.

My friend asked me for some thoughts on the matter, and I came up with 10 suggestions.

1) A trial is a battle of impression, not law or logic. What is the general impression that you, your client and your witnesses are making? What about your demeanor, reactions and body language? Those are the most important factors that influence the jurors and how they perceive your case. You need to maintain a consistent, strong demeanor with a constant theme, and project the righteousness of your case at all times.

However, you also need to have a sense of humor at appropriate moments, and be willing to acknowledge, without attempting any cover-up, when things have clearly gone wrong. Otherwise, you lose the impression of sincerity and trustworthiness that you must maintain with a jury.

In the same way a professional poker player must demonstrate a consistent demeanor, yours needs to be unchanged, because like a runner in a race, if you project that you have given up, you have - and the case is over.

2) If the case has taken a bad turn, take the time to analyze why. When we continue to do the same thing in the face of a lack of success, we continue to get the same bad result.

You must have a willingness to objectively analyze what you can change in an effort to try to put the case back on track again. You must face the truth, not continue to project a fantasy - and you may have to do it more than once over the course of a trial.

3) You may require an objective third party to analyze the problem. You need to be totally open to the criticism that it is not the facts of the case that have turned against you, but your attitude, mannerisms or communication skills.

Is arrogance, a smart-aleck attitude or general anger part of the problem? Could a simple change in attitude and demeanor turn the tide in your favor?

If so, that could be a relief, albeit a humbling one: There may be nothing wrong with the work you've done, just the way you've been conducting yourself in court. Be willing to change.

4) Evaluate whether there is a change of legal position you can make to improve your chances. Is one of the weaker parts of your case a claim that you could simply drop? Are there witnesses you can call or not call who would improve your position with the jury? Is there any alteration you can make in approach, while still being consistent with the main theme?

5) Evaluate whether you can focus evidence or witness testimony to concentrate on some weakness in the case. Would a change emphasis be of benefit to you? In general, what we talk about the most becomes the most important thing that jurors see in our case.

Where is the emphasis in your case, and is that part of the problem? Should you refocus in that regard? You need to be willing to modify your approach, not rigidly adhere to your best-laid trial plans.

6) Acknowledge that you may have ignored the jury. You've tried the case expertly, through extensive preparation and genuine passion. But have you tried it as if just you and a witness were present before the judge?

Too many lawyers don't maintain appropriate eye contact with jurors, involve them in the process, and make clear that they are fully aware of their indispensable involvement in the case.

Consider whether you need to involve the members of the jury through direct engagement and general acknowledgement of their role. If there are particular jurors who seem to be problematic to your case, is there anything you can do to appeal to them, through eye contact, humor, tone or another approach?

7) Make a special effort to arm jurors who are on your side with arguments they can use against adversaries in the jury room. While jurors tend to make up their minds early in the case, be sure to specifically give the jurors on your side arguments to use in the jury room for your position.

For example, you might tell a jury: "One of your fellow jurors might say in the jury room, 'Dr. Smith was caught in too many inconsistencies,'" and remind them of all the supporting evidence and testimony that could contradict a potential foe.

8) Remember that truth is the most powerful persuader in a jury trial. I had a friend in Spokane, Washington, who was a great trial lawyer. He was presenting a case when his key expert completely came apart on the stand, to the point of embarrassment.

In his argument, he took full responsibility and apologized. He told the jury that he was totally mortified, ashamed and embarrassed by the witness because he took full responsibility for presenting only valid, truthful testimony, and he had failed to do so.

What really bothered him was that his innocent client would likely suffer the consequences of his failure to screen the witness properly. He ended up recovering a very good verdict because of his sincerity in acknowledging the disaster and taking responsibility for it.

9) If the situation is serious enough, consider settling. Mike Koskoff, a great plaintiffs' lawyer, said that his father, Ted, an outstanding plaintiffs' lawyer in his own right, had a rule: Never settle on the day you have had a trial problem. If settlement is a compelling alternative, it will be compelling after a good day as well.

10) As a last resort, if your trial has become a true disaster, consider a voluntary dismissal with a plan to refile. Clearly this is a last-resort alternative, but it may be appropriate under the right circumstances.

Michael Sterbick was an outstanding plaintiffs' lawyer who was involved some years ago in a trial gone wrong. After more than several days, he elected to take a voluntary nonsuit. He later refiled the case and tried it to a very good verdict.

When I talked with him about it, he said that the expense and additional effort had been worth it because it allowed him a chance to reframe his entire case and how he approached that trial. Sometimes, in rare circumstances, that may be the only alternative.


Paul N. Luvera is the founder of Luvera Law Firm in Seattle. He was elected to the American Trial Lawyers Association Hall of Fame in 2010.

Published: Thu, Jun 23, 2016