In the lead-up to trial, a good trial lawyer has many checklists. Some deal with motions to the court. Some deal with disclosure deadlines, some with witness notifications. In this article, I would like to address the broader question of preparation for your jury: What is the checklist to make sure you are ready for your panel of fact-finders? The following quick list includes my view of the 16 most common considerations. Many to most of these should be common sense, but that is the beauty of a checklist: It still helps to see them all in one place.
1. Have I Pared the Evidence?
Shake off the discovery-driven tendency to expand the case and begin to contract it to a manageable number of exhibits and witnesses. For each, you should be able to say, “This will show….” and complete that sentence with a simple statement of relevance to the jury.
2. Have I Proposed a Jury-Centered Verdict Form?
Ask the court for a form that follows the logical path you want your jurors to take. For plaintiffs, that is often a short and direct path, and for defendants, it is usually a more considered one.
3. Have I Simplified the Instructions?
Boil the legal instructions down to their essentials, if possible, written in the plainest English your court will accept, and delivered at the earliest point the judge will allow.
4. Do I Have a Jury Profile?
Analyze the characteristics of the higher risk jurors, based on their attitudes and experiences (not primarily demographics). Use that specific analysis as a guide to voir dire and a basis for your strikes and challenges for cause.
5. Have I Asked for a Questionnaire?
The recent courtroom restrictions have further confirmed what many of us already knew: A supplemental juror questionnaire can be a very efficient way to get better information, and in most cases, your selection will benefit.
6. Have I Asked for Innovations That Make Jury Service More Participative?
Think in terms of a juror’s bill of rights focusing on everything that makes the experience worthwhile and engaging from their perspective. That includes the abilities to be more active by taking notes and proposing questions to witnesses.
7. Do I Reasonably Know the Jury’s Likely Reactions?
If you have fully analyzed your case, and potentially engaged in formal or informal mock trial or focus group research, then you should have a grounded sense of how jurors will respond to the broad outlines of your story. This should include your strengths but also include the bad stuff.
8. Do I Have a Theme?
Boil down your case to a simple and memorable message that can be delivered in two minutes or less. You should consider many ways to develop that message creatively, and further streamline the persuasive appeal.
9. Have I Accounted for the Biggest Weakness?
One of the bigger steps is to deal with the inevitable: Not every part of your case is good. Address the weaknesses not by avoiding them, but by explicitly addressing, and perhaps, even embracing them.
10. Have I Divided My Case into Meaningful “Chunks”?
Jurors don’t do well with an uninterrupted stream of information. So take your case and divide it into bite-sized segments that are meaningful, memorable, understandable, and linked together.
11. Do I Have a Story?
To inform and engage jurors, you need a story — not just a sequence of events, but a true narrative arc with character, conflict, climax, and resolution.
12. Are My Witnesses Prepared?
Your witnesses should be ready not just to testify, but to truly communicate and educate the jurors. They will also need to be savvy enough to protect themselves against the other side. Preparing for direct and cross-examination is a step that requires both discussion and practice.
13. Do I Have a Cross Plan for Each Important Adverse Witness?
For every important opposing witness, you should have a plan for what you expect the jury to do with them when they decide in your favor. For example, plan for at least one major credibility-sapping moment during examination.
14. Have I Made the Case Visual?
Plan to show and not just tell. Based on our own Persuasion Strategies study, using a variety of visuals throughout an opening statement makes for better attention and comprehension, and shows the jury you are prepared.
15. What Is My Closing Process?
Even before trial, you should have a pretty specific plan on how you hope to close. Then, throughout trial, you should be building that closing by noting, saving, and creating slides on each of the moments you want the jury to remember and put together.
16. Have I Asked To Talk to the Jurors Afterward?
When the trial is over, the opportunity for learning is not. If the judge and local rules allow it, plan for someone on your team to talk with the jury to learn what worked and what didn’t, and what you can do better next time.