How to Win a Trial: Part One
Most clients Bell Law Firm works with do not want to go to trial. They’d prefer to settle their case for fair value and avoid trial altogether. While that happens fairly often, about 10-15% will ultimately be presented in a courtroom, in front of a jury and a judge.
This raises important questions for the representing council: how can we best prepare, present, and convince a jury to return a righteous verdict for the plaintiff? How to win a trial? Lloyd Bell answers these questions and more, while sharing key tips and tricks below.
It takes an enormous amount of preparation and work to put your case in the best possible position for a favorable outcome. And while there are many elements that go into a jury trial, it’s important to realize trial is only the tip of the iceberg.
Preparation starts from the moment you first meet the client. There has to be a connection with the client’s story. One test to judge this connection is the “personal outrage test.” If their story hits me to where I have a visceral reaction of shock, then that tells me this case is likely worth exploring.
Next comes discovery. My job as the advocate is to discover my client’s story, which means going beyond the “what happened” and uncover the details of why it happened. A client’s story lives in the “why” of the case, and we put a lot of energy into discovering that story.
There are a number of ways of discovering the story:
- Simply ask the client or family what happened.
- Put people in motion to reenact different scenes of the medical care. By putting in action the client and different players of the case, amazing things start to happen. In some cases, people start remembering things they couldn’t before.
One of the guiding principles in the discovery phase is to identify the moral core of the case. This means identifying the human heart of the case that resonates with our common morality. As a society, we have certain universal moral truths. For example, respecting elders, treating people with kindness, the importance of keeping a promise.
In a medical malpractice case, we discuss the moral core of trust that a patient puts into their health care provider. A jury is less likely to forgive a mistake if it’s driven by a moral failing – by greed, selfishness, or laziness. Part of my job in discovering a client’s story is identifying where those moral failings are.
An accomplished storyteller focuses on the details that drive emotion and drive the narrative. Those factual and moral details are exactly what I look to uncover – the details that help the jury understand the point I’m trying to convey.
While the details and moral core of a case are vital, cases are ultimately proven and won on the evidence. The most obvious source of evidence in a medical malpractice case is the medical record or electronic medical record (EMR). The EMR contains about 75% of the evidence necessary to prove whether a healthcare professional did something wrong.
But that’s only part of what’s needed for trial. Other important sources of evidence include your client’s cell phone record and text messages, the cell phone record of the defendant(s), cell phone location data, and the healthcare audit trails that document the timeline of events.
A lot of the evidence that can be most useful in a trial is evidence you discover through hard work, talking to relevant individuals, and thinking creatively about where to get more facts to support your case.
Preparing for Trial
Once you’ve reached the end of the discovery period, all parties should have a complete understanding of the central facts of the case. So, why does the case go to trial? Why doesn’t the case just settle at that point if the facts are fully laid out and point to a rightful conclusion?
You go to trial if you can’t resolve your case through a settlement, if the defense doesn’t offer a fair amount, or if the plaintiff demands more than the case is worth. For every case going to trial, there’s a miscalculation on one side or the other. If both sides view the facts in the same way and understand the importance and relevance of the facts, those cases tend to settle.
In most cases when preparing for trial, the judge will sign a scheduling order which dictates the deadline for discovery to be completed, expert witnesses to be deposed, and a start date for the trial. In medical cases, a lot of the witnesses are professionals who need advanced notice of the trial date to account for their busy schedules.
It’s hard to overstate the logistics that go into presenting and preparing a case for trial, including the witnesses that are involved, the exhibits that need to be pre-marked and organized, the personal work that takes place, the practice of opening statement and practicing of direct and cross examinations. All of these pieces receive many hours of preparation before we show up in the courtroom.
Winning a Trial
In a trial, there are things you can control, and there are things you can’t control. Things that are in your control include preparation, the hard work of organizing the evidence and presenting it in a way that’s interesting and compelling to a jury. This brings us to the first step of winning a trial: jury selection.
The first concept in a successful trial is understanding the audience and what they need from you to reach a favorable decision for your client. This is why jury selection is so important. It’s an opportunity to talk to potential jurors and find out more information about their background and assess if their core values align with the values of the case.
Once the jury is selected and settled in, opening statements begin.