Science and medicine are rapidly evolving and so are the products developed by many of our clients.
This makes our jobs even more difficult as we try to distill complicated issues in an ever-changing and evolving field or fields for juries in the courtroom.
I’m Hildy Sastre, a partner at Shook, Hardy & Bacon.
I’m Hassia Diolombi, also a partner at Shook. We’re a 130-year-old premiere trial firm with 12 offices across the country and in London. We are speaking to you today from Miami, Florida.
For the next few minutes Hassia and I are going to discuss some of the experiences we’ve had in the courtroom and how they impact our development of trial strategy.
Hassia, you have spent much of your career in the consumer-product industry with a very heavy focus on science and medicine. How have you found that you boil down complex and technical issues so that juries are able to understand what you’re talking about?
I think the first thing is understanding that jurors, for the most part, this will be the first time they will be walking into a courtroom, in an unfamiliar environment, and having to deal with complex information. I think the key in doing that is, first of all, not talking down to the jurors but understanding you have to “unpackage” and break out complex concepts into easy, digestible pieces, and then while doing that, connect those easy, digestible pieces to analogies in a juror’s daily life, hopefully, that they can really access and relate to in understanding the concepts that you are trying to put together. And then build everything back up for the jurors so they understand what it is, at the end, that you’re trying to convey to them.
Right. I totally agree with that. I think that as lawyers who spend years working on a single case, we become experts within that given field for what’s a fairly brief period of time. During that period of time, I think that when we are talking about everything we have learned and mastered, and I think we forget how to speak English to people when we’re talking about things. So, for example, when you’re trying a case, you can never use an acronym. We have to use the words. So I think that as lawyers we’re very focused on being technically correct and precise, and I think that in the courtroom, that’s not really a place for precision during a jury trial and instead you need to find ways to speak about things that are meaningful, that describe what they are in straightforward, non-legal, non-medical terms. You have to talk about complex issues in a way that jurors can—obviously, first we say you have to be able to understand them because they haven’t spent five or six years working on the case like we have and I think we forget that. It has to be talking about issues in a way that is meaningful, easy to understand, and of course we are always trying to be persuasive. But it has to be information that the jurors themselves can remember and ideally regurgitate and repeat on your behalf while they’re deliberating. That’s the idea. If you’re not accomplishing that, then you’re not accomplishing anything during the course of the trial.
Now, Hassia—lawyers love war stories. They love to tell them, of course. Do you have a favorite story that you’d like to share?
I think my favorite stories in the courtroom are those when something completely unexpected happens and you end up using that to your advantage in the course of the trial. Although it’s not a hyper-technical issue, I think my favorite moment in the courtroom was cross-examining a pastor that had been put up by plaintiff to lend credibility to a very damaging piece of evidence for us. And so, of course, they put this pastor on, and you could tell through the course of the direct examination that they’re relying heavily on the fact that this was a pastor and no one was going to impugn his credibility. And so quite frankly, I didn’t think I was ever going to impeach him. So I get up there for the cross, it’s going along and lo and behold this self-proclaimed man of God, this man of the cloth lies. I was flabbergasted! And it just so happened I didn’t have the right transcripts up there with me. And so there’s this pregnant pause where I am wondering, “Did this just happen? Oh my goodness, I don’t have the transcripts.”
I have to go back with the paralegal rummage through the boxes. The judge was amused and the jurors knew something was about to happen. The judge told me “Take your time.” I finally found the transcripts. I went back up and it was the drama. It was nothing I had planned and I got to impeach this pastor. It was amazing. But the best part of it was when I was done, this pastor walked past, when he was done being on the stand, he walked past plaintiffs’ counsel, came up to me, exchanged some pleasantries, handed me back my transcripts and bid me a fair day in front of the jury! That was really icing on the cake. Those moments that tell you trial is never boring, you never know what’s going to happen and really that’s one of my favorite stories.
To be honest, I think that we’re always wondering about the outcome of a trial. The cases that we try are high-exposure cases; a lot of money is at stake by any measure. They are dangerous cases. That’s the only way to describe them. If the facts were so perfect and terrific and great for us, there probably wouldn’t be a trial in the first place.
I just think as a trial lawyer, never fall in love with your case, never fall in love with your defense. And I think the most important thing to do—you know, we’re always looking for how do we meaningfully talk about the defenses, so the pros of the case. But the real trick is—the stuff that we worry about is—how do you talk about what plaintiff is saying the problem is and how do you get the jurors to give that the back of their hand. So that’s something that is difficult, and it really ties into the comments earlier—sometimes two or three very simple phrases that summarize what plaintiffs’ think the strengths of their case are. If you are able to talk about them in a persuasive way and puts them in a context for jurors to understand. “Maybe that doesn’t sit right with me? I don’t think this defendant or client is perfect. I may not even like what they do as an industry but I’m going to put that aside because now I understand that that’s not what this case is about. I’m not going to see this as a question on the verdict form.” I think getting past that stuff that keeps us awake at night.
One of my partners here, a guy named Ken Reilly, describes the work we do as “juggling hand grenades.” So when you juggle hand grenades, your hands always get a little sweaty, your heart is beating a little bit fast. Because sometimes, just like these cases, one is going to blow up in your face, and you hope it’s not often and hope it’s not very painful.
So always wondering, never over estimating and never being over confident and too in love with your case.