Ronald L. Williams | The Legal Intelligencer | August 12, 2016
Successfully trying a construction case to a jury requires thoughtful selection of a jury, effective utilization of technology and preparation of expert testimony that is utilized persuasively. Trial counsel who utilize and complete these tasks effectively have an excellent opportunity to prevail at trial.
When it comes to jury selection, trial counsel cannot wait until the eve of trial to think about the composition of a jury. Nor can trial counsel walk into voir dire without knowing all of the rules for jury selection, which may be unique to that specific tribunal. That may sound easy, but both are critical to complete effectively. Remember preparation and opportunity in jury selection can lead to success in the identification of jurors inclined to find your case attractive.
Trial counsel must know the manner in which the judge will hold voir dire. Sometimes the judge conducts most of voir dire, sometimes it is left to others, including, but not limited to, counsel. Trial counsel also needs to know what type of information will be supplied about prospective jurors and be able to assimilate that information in a manner that allows the best use of trial counsel’s ability to strike jurors. Striking jurors to avoid more “problematic” jurors must be done sparingly—and with great precision.
Trial counsel must demonstrate during voir dire an ability to introduce trial themes. During this process, trial counsel must begin the appeal to the jury by virtue of the themes, understanding that some jurors, bringing their own experiences to the case, will find some themes appealing and others less attractive. Additionally, trial counsel needs to carefully record with precision responses to each question posed so as to utilize strikes for cause. Of course, jury selection constitutes a team effort. The team must consist of trial counsel, the client, and, if appropriate, a jury consultant. Each must understand the pros and cons of each prospective juror and be able to exercise judgment to help formulate the best possible panel. At the end of the day, common sense in selection cannot be understated. Selection of a jury, after all, is not just the first opportunity to introduce the case and its themes, but it is also an opportunity for trial counsel to introduce the client and entire trial team. Remember, jurors usually reach the right result and having an appreciation for this portion of the process can lead to a jury panel that heightens the probability of success. Trial counsel must, as well, take the process very seriously.
Notwithstanding these recommendations, the case can take a turn for the worse even with the best jury. Once in defending a case, opposing counsel gave a 60-minute opening at the end of which almost half the jurors were asleep. Needless to say, the judge took a break so that the jurors could freshen up and the case settled shortly thereafter with a recognition by the parties that even a good jury panel can be bored to tears by one side or the other or both.
On the subject of technology, trial counsel must recognize that effectively utilizing a technology expert and high-level equipment will entertain a jury and heighten the probability that the case ends in a positive result.
Today, trial courts rely heavily upon trial counsel who recognize the importance of effectively using technology. Therefore, trial counsel must impress upon a client that it is critical to maximizing the probability of success to retain a technology expert and have that expert engaged in the case as early as possible. Obviously trial counsel and clients have a sensitivity about costs, which can and should be contained. However, having a technology expert absorb and understand the exhibits will enable the effective presentation of witnesses, both lay and expert, introduction of the documents, as well as solidifying openings and closings. Trial counsel should not give up utilization of exhibits in hard copy form. However, use of exhibits in hard copy form should be more for effect. There are technology experts who demonstrate a high level of understanding of the subject matter of the litigation and the law, and then there are technology experts whose expertise is more confined to everyday technology. So long as it is feasible, it is better to have an expert who is willing to understand the subject matter and understand the law than it is to simply have somebody whom trial counsel might refer to as a technology expert alone. The difference can manifest itself in a way as basic as a technology expert putting an exhibit before a jury that has been precluded by a prior ruling of a judge. In such an instance, it is hard to reverse course once the exhibit is in front of the jury as jurors typically pay close attention to the documents themselves and the language on the screen. A highly skilled technology expert does not make such a mistake. A technology expert must know the exhibits that will be utilized in openings, with each witness, with each cross, as well as closings. If the technology expert understands the script for each witness, then no time will be lost and the presentation proceeds smoothly. However, if the technology expert is flailing for documents, unsure of which exhibit to put up or simply cannot get the document to appear on the screen, the court and the jury will be less than impressed. Likewise, the client will draw its own conclusions. Therefore, orchestration is everything, and the client has to understand that. For this reason as well, early involvement of somebody highly qualified can maximize the probability of a desirable result for the client.
Finally, the utilization of experts in construction litigation constitutes a critical step that all too often is not completed effectively. Obviously, clients frequently do not want to spend money on retention of an expert early and yet the payoff or return on investment can be huge. After all, retention of an expert early and utilization of that expert during the discovery process can afford trial counsel the opportunity to request precise discovery. Further, early retention of an expert can educate trial counsel on all aspects of the presentation and, frequently, the need for retention of additional experts.
In this day and age, jurors expect, as do courts, specialists. Even if an expert survives an appropriate motion, you need to ask the question early—is the expert that has been retained truly a specialist or a jack of all trades? The latter can leave a jury unimpressed and, potentially, lead to a bad result.
Through early involvement, the expert can provide a comprehensive report that addresses all necessary aspects of the case. Frequently, experts do not appear to understand their role in a litigation and, as a result, can issue reports that contain opinions that are not helpful or, worse, embarrassing. A good expert report can contain less content rather than more. Sometimes experts think that a book with numerous exhibits will carry the day. However, exhibits poorly prepared can provide effective ground for cross-examination by trial counsel who can undercut the expert’s credibility through the opinions offered in the exhibits provided.
Of course, if trial counsel obtains the consent of the client for early retention, and trial counsel cannot obtain the opinions through an expert that are needed, sound alternatives can be considered on a timely basis. Frequently, because of client concerns about costs, an expert is retained after considerable legal fees are expended. That should be avoided.
Assuming that the expert can prepare a report that can withstand scrutiny, the expert needs to be able to present the findings of the report in a manner that is entertaining and, in effect, in a manner that involves teaching and not simply lecturing. The jurors, like most people, do not appreciate the “lecture” as much as they appreciate someone who takes the time to teach. All too often, experts can be so impressed by their own credentials that jurors are left unimpressed.
Of course, through effective voir dire, ferreting out the true credentials of an expert can be effective. Effective voir dire or appropriate motion can narrow the opinions that can be offered by an expert.
Finally, if an expert has the opportunity to observe the testimony in court, the expert can be more comfortable, more persuasive, and, of course, potentially lead to a much better result. Naturally, if an expert can be present during opposing counsel’s expert testimony, the expert can then offer meaningful rebuttal if appropriate. Through being present, at the very least, the expert can provide trial counsel meaningful input for purposes of cross-examination.
In summary, trial counsel who carefully and thoughtfully prepare for jury selection increase the likelihood of success at trial. That likelihood experiences further enhancement by trial counsel who utilize technology and a technology expert effectively. Finally, utilizing the appropriate experts effectively will enable the client to have maximum opportunity for success.