Winning on the Road

Trials are slugfests, and juries and judges know that. But they also expect the lawyers to stay collected and to be respectful to the court, its personnel, the witnesses, and their opponents. Lose sight of that, lose your cool, and you can lose the jury. You want to be the side that the jury is rooting for, even if you are the target of accusations from the other side as a defendant in the case.

2. Invest in Experienced Local Counsel

A local trial lawyer is the best resource that out-of-town lawyers and out-of-town defendants have for identifying the right jurors for the case. There's no substitute for their inherent understanding of the community's history and relationships that may influence some jurors one way or the other. In addition, some jurisdictions allow much more direct engagement with the jury pool in the jury selection process. The local lawyers we work with are masters of the dying art of voir dire, and they can give you tips on how to best relate to the members of the community whose hands your company's fate is in.

3. Bring a Relatable Corporate Representative to Trial

For many defendants — and even some plaintiffs — the first instinct is to bring a high-level executive to represent the company at counsel's table. Often, an employee with a hands-on relationship with the facts of the case may be a better representative for the company. In a patent or products liability case, consider bringing an engineer who worked on the product. Such a representative is the “show, don't tell” version of the typical defense “my client is a good company” line.

4. Choose Your Own Adversary

Successful plaintiffs' lawyers know how to present their clients. In patent cases, for example, plaintiffs are often individual inventors who counsel should portray in the best and most favorable light from the beginning of trial. In these circumstances, a defendant who goes on the attack against the plaintiff — who jurors already see as a victim — will almost always look like a bully. The truth is, however, that those inventors are often not the drivers of the litigation. Behind many of today's patent plaintiffs are litigation funders, hedge funds, trolls, and other companies that have nothing to do with the plaintiff's story of innovation. If you think that direct attacks on the motives and credibility of the plaintiff may backfire, you may be able to find another target, such as a key witness who isn't so sympathetic

5. Embrace Your Client's Identity, Supposed Warts and All

It's never a good idea to run away from who your client is. If your client is a large, out-of-state company, the jury is going to find that out one way or another. Don't be afraid of embracing that identity. In an increasingly “connected” world, appeals to local prejudice are becoming more and more ineffective. Gallup's recent polling on confidence in corporations shows that less than 40% of Americans have “very little” or “no” confidence in big business. Locally biased/anti-big-business jurors in the pool can be easily identified, and usually eliminated, in voir dire.

6. Give Every Lawyer a Speaking Role at Trial

We are firm believers that every lawyer at counsel's table should have a speaking role. Usually, that means taking at least one direct or cross-examination, even for the most junior on the team. This policy is not just good for junior lawyers' career development — it's also good for the client. First and foremost, if just one or two lawyers dominate the presentation of the trial, and it turns out the jurors don't like or trust them, your case may be finished. Jurors also appear to pay more attention when there's a mix of voices and personalities throughout trial. Finally, younger jurors may identify more with a young associate on the trial team than a senior partner — hard as that is for senior lawyers to imagine.

7. Be As Succinct As Possible at All Times

We adhere to the “less is more” approach at trial, starting with the selection of trial witnesses and exhibit lists. Tempting as it may be to throw every helpful document up before the jury during lengthy direct examinations, the reality is that the jury is more likely to be on your side if you focus its attention (and memory) on just a few documents and facts that make the biggest difference. Being succinct (and exceedingly polite) is particularly important during cross-examination. Ten minutes of pointed questioning is usually more effective (and memorable) than hours of in-your-face attacks.

8. Focus on the Facts, and Never Pander to the Jury

Last, but certainly not least, our recent trial experience only increased our faith that jurors pay attention to, and care most about, the facts. This is particularly true during closing arguments. In our view, jurors don't want to hear rhetoric about who's right and wrong — they want to hear (and see) a summary of what the important documents say and what the witnesses actually said. Jurors also appear to have better recollections of what actually happened during trial than cynical trial lawyers may expect — meaning the worst mistake a lawyer can make is to misstate or distort what the witnesses actually said in any way.

Conclusion

A business that's willing to accept the uncertainty of the jury trial opens the door to the reward of a public exoneration. No settlement can ever bring that “not liable” headline in the legal and industry press — which may well deter others from suing the company in the future. We think following the strategies above may increase the odds of achieving that priceless result.

*****
Jacob Buchdahl and Arun Subramanian are partners and Mark Hatch-Miller is an associate with Susman Godfrey LLP. They can be reached at [email protected], [email protected] and [email protected].

Many in-house counsel and outside lawyers have experienced something like the following: After navigating your client's defense-side civil case through months or years of contentious discovery, the plaintiff survives summary judgment. Nevertheless, you and your client remain confident that the law and the facts are on your side. There's one big problem, though. Your client faces a jury trial in an unfamiliar jurisdiction, where a jury might be inclined to side with the plaintiff's David over your client's Goliath, and as the old adage goes, “The only certainty with a jury is uncertainty.

Facing the prospect of a trial in a supposedly unfavorable venue, many defendants will agree to settle to avoid an unknown but potentially expensive and reputation-harming verdict. We think there's a better way. We recently tried a defense case in the United States District Court for the Eastern District of Texas and won a conclusive no-liability, zero-damages jury verdict for an out-of-state corporate defendant sued by a local plaintiff. See Flexuspine, Inc. v. Globus Medical. Here are a few of the strategies we found helpful in that win — many of which we learned from our firm's experience as a plaintiff in the same venue.

1. Stay Cool

Trials are slugfests, and juries and judges know that. But they also expect the lawyers to stay collected and to be respectful to the court, its personnel, the witnesses, and their opponents. Lose sight of that, lose your cool, and you can lose the jury. You want to be the side that the jury is rooting for, even if you are the target of accusations from the other side as a defendant in the case.

2. Invest in Experienced Local Counsel

A local trial lawyer is the best resource that out-of-town lawyers and out-of-town defendants have for identifying the right jurors for the case. There's no substitute for their inherent understanding of the community's history and relationships that may influence some jurors one way or the other. In addition, some jurisdictions allow much more direct engagement with the jury pool in the jury selection process. The local lawyers we work with are masters of the dying art of voir dire, and they can give you tips on how to best relate to the members of the community whose hands your company's fate is in.

3. Bring a Relatable Corporate Representative to Trial

For many defendants — and even some plaintiffs — the first instinct is to bring a high-level executive to represent the company at counsel's table. Often, an employee with a hands-on relationship with the facts of the case may be a better representative for the company. In a patent or products liability case, consider bringing an engineer who worked on the product. Such a representative is the “show, don't tell” version of the typical defense “my client is a good company” line.

4. Choose Your Own Adversary

Successful plaintiffs' lawyers know how to present their clients. In patent cases, for example, plaintiffs are often individual inventors who counsel should portray in the best and most favorable light from the beginning of trial. In these circumstances, a defendant who goes on the attack against the plaintiff — who jurors already see as a victim — will almost always look like a bully. The truth is, however, that those inventors are often not the drivers of the litigation. Behind many of today's patent plaintiffs are litigation funders, hedge funds, trolls, and other companies that have nothing to do with the plaintiff's story of innovation. If you think that direct attacks on the motives and credibility of the plaintiff may backfire, you may be able to find another target, such as a key witness who isn't so sympathetic

5. Embrace Your Client's Identity, Supposed Warts and All

It's never a good idea to run away from who your client is. If your client is a large, out-of-state company, the jury is going to find that out one way or another. Don't be afraid of embracing that identity. In an increasingly “connected” world, appeals to local prejudice are becoming more and more ineffective. Gallup's recent polling on confidence in corporations shows that less than 40% of Americans have “very little” or “no” confidence in big business. Locally biased/anti-big-business jurors in the pool can be easily identified, and usually eliminated, in voir dire.

6. Give Every Lawyer a Speaking Role at Trial

We are firm believers that every lawyer at counsel's table should have a speaking role. Usually, that means taking at least one direct or cross-examination, even for the most junior on the team. This policy is not just good for junior lawyers' career development — it's also good for the client. First and foremost, if just one or two lawyers dominate the presentation of the trial, and it turns out the jurors don't like or trust them, your case may be finished. Jurors also appear to pay more attention when there's a mix of voices and personalities throughout trial. Finally, younger jurors may identify more with a young associate on the trial team than a senior partner — hard as that is for senior lawyers to imagine.

7. Be As Succinct As Possible at All Times

We adhere to the “less is more” approach at trial, starting with the selection of trial witnesses and exhibit lists. Tempting as it may be to throw every helpful document up before the jury during lengthy direct examinations, the reality is that the jury is more likely to be on your side if you focus its attention (and memory) on just a few documents and facts that make the biggest difference. Being succinct (and exceedingly polite) is particularly important during cross-examination. Ten minutes of pointed questioning is usually more effective (and memorable) than hours of in-your-face attacks.

8. Focus on the Facts, and Never Pander to the Jury

Last, but certainly not least, our recent trial experience only increased our faith that jurors pay attention to, and care most about, the facts. This is particularly true during closing arguments. In our view, jurors don't want to hear rhetoric about who's right and wrong — they want to hear (and see) a summary of what the important documents say and what the witnesses actually said. Jurors also appear to have better recollections of what actually happened during trial than cynical trial lawyers may expect — meaning the worst mistake a lawyer can make is to misstate or distort what the witnesses actually said in any way.

Conclusion

A business that's willing to accept the uncertainty of the jury trial opens the door to the reward of a public exoneration. No settlement can ever bring that “not liable” headline in the legal and industry press — which may well deter others from suing the company in the future. We think following the strategies above may increase the odds of achieving that priceless result.

*****
Jacob Buchdahl and Arun Subramanian are partners and Mark Hatch-Miller is an associate with Susman Godfrey LLP. They can be reached at [email protected], [email protected] and [email protected].