In the last “Mediation Circus” column, I discussed aspects of trial strategy with U.S. District Judge Thomas M. Durkin, my former law school classmate. We talked for a long time, and that conversation continues below.
In this section, we dive into the ways an attorney can prepare information to be presented in a courtroom.
Panter: Let’s talk about trial. What do you think is effective in trial and what don’t lawyers do enough of?
Durkin: What lawyers don’t do enough of — and what is effective at trial, and that’s why I don’t know why they don’t do more of this — is put up a timeline. Every case has a timeline. Every case has a story.
Lawyers are so familiar with that story that they forget the jury isn’t, and that the judge isn’t.
Durkin: It can be simple. In fact, a complex timeline is no good either because it’s too busy.
A simple timeline with the key dates of the case that you put on a poster board — not on an Elmo [projector], not on a video and some kind of screen where it’s up for a few seconds.
Put it on a poster board and leave it in front of the jury as long as the judge will let you do it, until the other side complains and says, “Take it down.”
The better approach is to come up with a neutral timeline where both sides agree, and you leave it on a poster board throughout the trial. The toughest thing a jury has to do is put in their mind the spatial relationship of the parties with the events. I think a name chart and a timeline are helpful for this.
When I was an assistant United States attorney, I tried a case involving 19 Nigerian heroin dealers. the most effective chart I had in that case — it was a two- to two-and-a-half-month trial in Ceremonial Courtroom — was a name chart.
All the defendants had difficult-to-pronounce names. They were hard to pronounce, and hard to remember. I put up 19 names on a big poster board and put something next to each one: “runner,” “money man,” “importer,” “street distributor,” “wholesale distributor,” describing what their role was in the conspiracy.
I left it up until the defendants kept telling me to take it down, and then put it up again for the next witness. I had it up probably 20 times during that trial, including during opening and closings. It familiarized the jury with the names of the defendants, which was hard, because there were so many of them, and with their roles in a single word or two.
A name chart like that, coupled with a timeline, helps the jury. Every time they hear about a date from a witness or see a date on an e-mail, it’s meaningless unless they put it in the picture of a larger timeline.
Panter: Something else lawyers don’t do enough of?
Durkin: I think they don’t take advantage of a couple things I offer them. One is I allow interim statements for trials of a week or longer. It’s a chance to tell the jury what they’ve heard and what you expect them to hear.
Panter: What are the rules?
Durkin: I give them about 10 minutes a side per week, sometimes a little less, sometimes a little more.
The other side is the timekeeper. You can use all 10 minutes at once. You can use it one minute at a time. You can’t interrupt a witness. In other words, a witness has to be done before you do it.
It’s often best done toward the end of a week before the jury goes away on a weekend for example, saying, “You’ve now heard from the liability witnesses. Next week you’re going to hear damage witnesses,” and to recap with the liability witnesses said, “X, Y, Z.”
Usually the other side gets up to respond, but sometimes they don’t. I think that’s a missed opportunity. If you don’t use every minute of your 10 minutes, you’ve lost the ability to advocate.
The other thing I do is allow jurors to ask questions in civil cases. That may not seem innovative to some judges, but I never had that opportunity when I was a trial lawyer in federal and state court. The jurors do it in writing. We go to sidebar and I go over them with the parties.
I know you’re nodding your head because you used to allow this when you were a trial judge. I’m not sure a lot of judges do. Some lawyers are afraid of it. They think somehow there’s something wrong with this.
It is the absolute best way of knowing if you’re making an impact on the jury or not. As trial lawyers, we live and die with the frowns and smiles of jurors — and we hope when they’re frowning at us it’s not because of something we did. When they’re smiling at us, we hope it is because of something we did. Often it’s neither.
We think, “OK, I have that juror. That juror is with me because they’re smiling with me.”
It could be they’re smiling about how ridiculous my argument is, for all I know. But a question from a juror tells you what was effective and what’s not working.
If you’re smart, you can look and see who the juror was that wrote that question, and you can subtly at least look at that juror when you make a point later. Importantly, it allows you to change your trial presentation midstream if you think you’re not making your points effectively.
Some lawyers are afraid of juror questions. I think they’re a wonderful innovation. If the jurors come up with questions that hurt your case, wouldn’t you rather know it now than later when you get a bad verdict? At least you have a fighting chance of changing their mind. Lawyers are getting more used to it. I think more judges are doing it.
In criminal cases, I will not allow it if the defense objects. Some defendants in criminal cases have agreed to it, and I think it’s a good practice.
The U.S. Attorney’s office is not in favor of it. The U.S. Attorney’s office believes there’s potential error involved in it. I’ve looked at the area. The jury is carefully instructed to not begin deliberating just because they get an answer to a question and to keep an open mind.
If the question they’re going to ask is not asked, they are told not to share it with other jurors. With that kind of instruction, I think all the fears of premature deliberation are taken care of.
I also now give substantive jury instructions before openings. I think that’s a good practice. I’ve had jurors tell me later that they wished they knew what they were supposed to be deciding when they sat and listened to a case.
I show them a sample verdict form and also given them not just cautionary but substantive issue instructions. I think that’s a good practice.
We read instructions before our closings so the lawyers don’t have to use that tired phrase of, “I expect the judge will instruct you as follows.”
The jury then knows the instructions. You can put the instruction up on the Elmo without fear that somehow it hasn’t been read to the jury yet, and underline something or highlight something or point out, “Here are the five things they had to prove, and here are three of the five they didn’t prove,” or vice versa; “Here’s the five things we had to prove and here’s how we proved each one.”
That’s a very effective closing, I think, because it directs the attention of the jury to the instructions, which is really what they ought to be doing when they go back to deliberate rather than just a gestalt feeling of, “I think he’s guilty,” or, “I think he’s not guilty.”
They ought to be going through the elements to see if the government or plaintiff has met their burden.
Panter: You just read them the one time, but you read them before the closing? I mean in the beginning you read some, but then …?
Durkin: At the beginning I read nearly every instruction except the ones about deliberating. I read those at the beginning of the case, and they have a copy with them throughout trial.
I tell them if they’re going to take notes on the instructions they’re free to do so, but they will not be allowed that set of instructions back in the jury room, so transfer any notes to their notepad, which they do take back for deliberations.
Panter: Why don’t you let them take their notes on the instructions?
Durkin: They can, but I don’t allow two sets of instructions back in the jury room, because if they’ve changed, there will be an issue about which set of instructions they use to deliberate.
I hand out 12 sets of instructions, and then I retrieve 12 sets before I give them the final instructions, where I hand them a new set of 12. They’re often the same. Sometimes they change. All I’m telling them is if I’m retrieving the set they’ve had throughout the trial and there are notes on them, make sure you transfer your notes to your notepad, because you’re not going to have that set back in the jury room.
Durkin: If you’ve changed an instruction that you already read to the jury and that they had, do you make a point of …?
Durkin: I tell them up front, “These are the ones I expect you will get. If there’s a change in any material way, I will note that for you.”
Once and twice we’ve had changes or we had some additions, and as I read them to them, I say, “This is different than the one you had originally,” or, “This is new.”
Panter: Is it ever a problem that there’s a big change?
Durkin: No. We almost always use in 7th Circuit’s pattern jury instructions. They cover most of the cases we try, just like IPI covers most of the state court cases. We do an instruction conference before trial. We spend a lot of time up front on instructions.
That serves two purposes. One, it allows us to read substantive instructions before the openings. Two, the worst time in the world for a trial lawyer is 5:00 the day before closings, where all you want to do is get back to the office and work on your closing, and the judge said, “Let’s do our instruction conference.”
So you’re there till 7 or 8 going through an instruction conference. You’re tired. The judge is tired. The legal arguments are not being communicated properly between both sides, and all you’re worried about as a trial lawyer is, “When can I get out of here so I can work on my closing?”
That’s not a good recipe for crisp, correct legal instructions.
We do them up front in the final pretrial conference a week before trial, and it saves a lot of heavy lifting and means that the night before trial closings we have a brief instruction conference where we go through them one more time.
The big arguments have all been taken care of. I think it’s a good thing for people who try cases. I used to try them, and I remember the night before closings was always a bad time to do a complicated instruction conference. Do it ahead of time and you’ll save a lot of time later.
In the third and final portion of Mike Panter’s conversation with Durkin, the two will discuss keeping up with the latest courtroom technology trends.