By Donald E. Woody

Trial strategy is the overall plan to be executed with the most likely opportunity for success in the case. Trial tactics are the specific tools used to implement the overall trial strategy. Do not become bogged down in tactics so that sight is lost of the overall trial strategy. A single cross-examination that went unusually well will not usually carry the day. Attention must be paid to what, in the large scheme of things, must be accomplished throughout the life of the case to ensure success at the end of the day. Every case is different and so every trial strategy will be different. However, certain universal principles can be applied in every case to lead to the best trial strategy for that particular case.

Practice Tip

Consider the trial strategy of the case as similar to a highway onto which all trial tactics merge on the way to a successful destination. Mapping of the highway will permit counsel to maintain an overall view of the case much like viewing a road map from beginning to end.

Key Factors Affecting Trial Strategy

A.    The Client, Liability, and Damages

§1:20   The Client

Although both liability and damages are important elements in developing trial strategy, one of the most important elements is the client.

The plaintiff’s attorney has a distinct advantage over defense counsel in this regard because the plaintiff’s attorney is free to pick and choose his or her client. Defense counsel, who has been retained by an insurance company (through which defense counsel normally receives clients) to represent a defendant, is not. In that instance, defense counsel is stuck with whomever the plaintiff wishes to sue unless they choose to decline to represent a particular defendant. However, they then run the risk of the insurance company choosing other attorneys to represent their insureds’ interests who are not so choosey. The plaintiff’s attorney should take advantage of this opportunity and be selective in whom he or she chooses to represent.

The most important factors to consider with the client are trustworthiness and believability. It is important to be able to project the client as compatible with the jury’s middle-class values and consciousness. A solid, respectable, stable, believable, ordinary person is most capable of being identified with the jurors. Jurors will be more inclined to help someone who is most like them and with whom they can personally identify.

One of the most important aspects of trial strategy is making the client the centerpiece of the trial and the case. The client should be portrayed as the victim in the case from beginning to end of the trial. Obviously, victims and clients are not perfect. However, they all have their good points and values. Those should be developed and emphasized throughout the trial, beginning with voir dire.

Example: Plaintiff’s Attorney in Voir Dire

“Good morning ladies and gentlemen. My name is Don Woody and it is my privilege to represent the plaintiffs in this case, Mr. and Mrs. Jones. It was their son Charles who was killed in this automobile wreck.

“Let me tell you a little about Mr. and Mrs. Jones. They have been married for 31 years. They met when Mr. Jones was in the Army. They were married and Mr. Jones attended college at Missouri University under the G.I. Bill and got his business administration degree. He then began his own business known as Fulcrom Enterprises here in Springfield. While he was working to develop his business, Mrs. Jones worked as a full time housewife and mother to their two children.

“Mr. Jones was born in Fulton, Missouri where his father ran the hardware store. Mrs. Jones was born in West Virginia where her father worked for the railroad.

“Charles was their youngest child and only son. He was born in the Ft. Leonard Wood Hospital while Mr. Jones was still in the service. After he got out of the service, they moved to Springfield because they thought it would be a good place to raise a family.”

Any of the weaknesses of the client that will be exposed during trial should be disclosed by the attorney early in the trial and should be placed in a positive light as the facts permit. Also stress his or her strong attributes.

Example:Defense Counsel in Voir Dire

“You know, my client Bill Johnson is a recovering alcoholic. He has two prior convictions for DWI. The last of those convictions was eight years ago and resulted from an automobile accident that he admits he caused. However, since that time, he has managed to get help for his drinking problem, joined A.A., and he has been sober and has not had a drink of alcohol since. He learned his lesson from that dark period in his life. He has since been steadily employed, married, and has a beautiful three-year-old daughter.”

Many jury studies have shown that jurors have a distorted view of plaintiffs’ motivational goals in litigation. Many jurors believe that plaintiffs are simply looking for a windfall, and that many frivolous lawsuits are filed. [Hans, Valerie P., Business on Trial: The Civil Jury and Corporate Responsibility (Yale University Press 2000); Civil Jury Study Seminar by Stanley B. Greenberg, Ph.D., Greenberg-Lake, The Analysis Group, Inc., 515 Second Street, N.E. Washington, D.C. 20002. Presented by the Academy of Florida Trial Lawyers (February 16, 1989).] It is extremely important that counsel dispel that view of his or her client by making it part of the trial strategy to convince the jury that the client is the exception to any preconceived notions about plaintiffs in lawsuits.

§1:21   Liability

Obviously, liability plays an important role in developing trial strategy. From the plaintiff’s perspective, the clearer and more compelling the defendant’s liability, the more central should be its role in trial strategy. The key in trial strategy for the plaintiff is to present as clear a case of liability as is possible. Elements of contributory fault or negligence will affect the plaintiff’s trial strategy. Typically, the liability issue or weakness of liability will play a primary role in the presentation of evidence. Because of the skepticism of many jurors, it is important for the plaintiff’s attorney to convince jurors as early as possible that this is not one of those frivolous lawsuits.

The reverse is true for the defense. The weaker the liability case is, the more important it is for defense counsel to make that weakness central to trial strategy. Defense counsel should make it a top priority to exploit the liability weaknesses of the case, to prevent the jurors from ever reaching the issue of damages. In a case of strong liability and weak damages, defense counsel may want to admit liability and try the case on the issue of damages.

Consider the relative strengths and weaknesses of the liability issues and contributory-fault issues in developing trial strategy. Under no circumstance should the plaintiff’s attorney ignore a weak liability issue in hope that, if it is not emphasized, maybe the weakness will not be noticed. Obviously, that is not going to happen. Defense counsel will see to that. Considerable analysis should be undertaken to develop the best way to minimize the liability weaknesses, to rationally explain them away, or to eliminate them, if possible, with the help of expert testimony.

Example

In a semi-truck and automobile accident case, two possible weaknesses on liability were minimized or eliminated through the help of expert witnesses. The semi-truck backed across a four-lane highway late at night, in the rain, in a rural area, and the auto driven by the plaintiffs’ decedent went under the trailer of the truck. He was decapitated. The trucking company sought to admit a videotape of a demonstration it conducted showing how visible the lights and visibility tape were on the tractor and trailer at night in the same area from a similar car driven toward the same truck. However, the plaintiffs’ visibility expert was able to successfully demonstrate and explain to the trial judge the significant differences between the conditions under which the test was conducted and the conditions on the evening of the accident. The trial judge did not admit the videotape, thereby helping to minimize any contributory negligence. Meanwhile, the plaintiffs’ accident reconstructionist was able to establish that the backing truck was traveling at a higher speed than the driver told the highway patrolman at the scene, thereby lessening the distance at which the plaintiffs’ decedent could have seen the truck backing across his lane of travel.

§1:22   The Injuries and Damages

Just as with liability and causation, the severity of the plaintiff’s injuries and damages will greatly affect the role that these factors should play in trial strategy. Obviously, the more severe the injury and the greater the damages, the larger the role those factors will play in the plaintiff’s trial strategy. The reverse will usually be true for the defense—the greater the injuries and damages, the smaller the role they should play in the defense trial strategy.

With injuries and damages, the plaintiff’s attorney will want to provide as much visual evidence as possible. Use as many exhibits and charts as reasonably possible in order to emphasize in jurors’ minds the physical, emotional, and financial effects that the incident has had on the plaintiff. Exhibits provide an excellent opportunity for the attorney to move about the courtroom to and from the witness and the exhibits, demonstrating control and emphasis.

Photographs and charts are extremely helpful, particularly in wrongful-death cases. They are excellent exhibits when used in closing argument and are often requested by the jury to review during deliberation. Videotapes may not be as useful because they cannot easily be used during closing argument or taken into the jury room. [See Ch. 4.]

Defense counsel will generally want to focus on any overreaching, exaggeration, or inconsistencies in the plaintiff’s damages case, as well as any miscalculations or mistakes in the plaintiff’s expert’s calculations, to make the plaintiff and counsel appear, as many jurors perceive them generally, to be greedy and wanting a windfall.

Practice Tip

The difficult damages cases—those with the least obvious physical presentation, or with complex, pre-existing conditions—present the greatest challenge to the plaintiff’s attorney and provide the most fertile ground for defense counsel as far as trial strategy is concerned. Reliance on strong expert testimony is usually essential for both sides in such cases, and care must be taken to simplify and explain exactly what the complex medical situation is or how the injury is much more serious than it may appear on the surface.

[§§1:23-1:29 Reserved]

B.     Other Factors

§1:30   Venue and the Trial Judge

Certain elements of trial strategy are dictated by the venue of the case and the personality and character of the judge who tries the case.

If more than one venue can be selected for the case, consider how venue may affect trial strategy. If you are unfamiliar with the particular venue, consult other attorneys who have practiced and tried jury cases in the venue, to learn what to expect and to get a general feel of the venue and how it may affect the case and trial strategy. Although the overall trial strategy you would use in St. Louis may not differ from what might be suitable in Manhattan or in Gainesville, Missouri, the manner and means you would employ to implement that trial strategy may differ depending on whether you are in a rural or urban venue, a conservative or liberal venue, or a blue collar or white collar venue. For example, the type of experts you would select and where they are from might be influenced by the venue. An economist from Manhattan may play well in Philadelphia but he would probably not play as well in Gainesville, Missouri as an economist from Kansas City. Also, calling an economist may be more helpful in a conservative venue where he or she can help set a floor on damages than in a liberal venue. Also, the amount you may seek to recover could certainly be influenced by whether you are in a blue collar or white collar area. The point is that a particular case, for instance, a medical negligence case concerning a botched abortion, would obviously receive a different jury audience if brought in Queens, New York than if it were brought in Ozark County, Missouri. A tobacco product liability case brought in Los Angeles would be received differently than if it were brought in Durham, North Carolina. You should pay attention to the differences posed in approaching your trial strategy that are dictated by your venue.

If you are unfamiliar with the trial judge, be sure to contact other attorneys to learn all of the information about the judge that can be obtained and especially how the judge may impact the presentation of the particular case. Sometimes subtle changes in the presentation of trial strategy can be made to accommodate quirks or eccentricities of the trial judge, thereby preserving the overall best trial strategy for the case. For instance, if the particular judge is defense oriented, you may want to be more conservative in the type of photographs you seek to introduce in order to be assured you can get the photos in. If you have some photographs that are less graphic than others in showing the plaintiff’s injuries, you may want to try to introduce the less graphic photographs into evidence in order to avoid the probable exclusion of your more graphic photographs because the judge will be less inclined to exercise his or her discretion to exclude them from evidence. In that way, you are modifying in a subtle way your preferred means of trial strategy in order to adapt to the known characteristics of your trial judge. This is a preferred approach than trying to confront the judge with more graphic photographs which he or she has shown a proclivity to exclude in past experience.

§1:31   Jury Instructions

Jury instructions can play a useful role in developing trial strategy because they reveal the important skeletal legal elements of the particular case around which the evidence must be presented. The jury instructions will set the perimeters of relevant and admissible evidence in the case.

Because the important jury instructions make up the last information the jury is given by the court, they are a good foundation on which to develop the ultimate trial strategy.

Practice Tip

If the court uses model-verdict-directing instructions (i.e., the instructions that direct the jury on who they must find for if certain things are proven) and damages instructions, you should carefully examine, analyze, and research them to reveal what the ultimate goal of the trial strategy needs to be. Once that goal is identified from those instructions, the means to achieve the goal—the trial strategy—can be fleshed out and filled in around those instructional requirements.

Example

The plaintiff’s attorney is exploring the filing of a premises liability lawsuit over a slip-and-fall situation that occurred when the plaintiff fell in a puddle of water at a local grocery store.

The particular jurisdiction, Missouri, has a model-verdict-directing instruction that must be given in virtually all premises liability cases involving invitees. It is MAI 22.03 which reads as follows:

“Your verdict must be for plaintiff if you believe:

First, there was (here describe substance on floor that caused the fall) on the floor of defendant’s store and as a result the floor was not reasonably safe, and

Second, defendant knew or by using ordinary care could have known of this condition, and

Third, defendant failed to use ordinary care to [remove it] [barricade it] [warn of it], and

Fourth, as a direct result of such failure, plaintiff sustained damage.

*[unless you believe plaintiff is not entitled to recover by reason of Instruction Number ___ (here insert number of affirmative defense instruction)].”

Obviously, this instruction clearly frames for plaintiff’s attorney what the exact issues in the case will be and clearly sets forth what the ultimate goal of the plaintiff’s trial strategy is because this is what the jurors will be instructed the plaintiff must prove to their satisfaction in order to be successful.

Therefore, the plaintiff’s attorney should build the entire trial strategy around the elements of the verdict directing instruction.

§1:32   Truth and Emotional Reality

Despite whatever are the legalities of the particular case, every trial strategy is subject to the practical requirements of dealing with the truth and emotional realities. Stated another way, even though the legal requirements of proving the fact situation can be met with sufficient evidence and argument, the truth and emotional reality of those facts will pose certain limitations on trial strategy. For instance, the plaintiff can make a submissible case in the fact situation where the plaintiff was drunk (with a blood alcohol reading of 0.25) and passed out in his car on the side of the roadway with the ignition switched off, when he is unfortunately rear ended by an inattentive semi-truck driver.

However, the truth and emotional reality of the situation are that the plaintiff’s conduct, although not contributing to cause the wreck, will be admissible on both liability and damages in many states. For example, the plaintiff’s drinking would be admissible in Missouri because it goes to the plaintiff’s ability to see, hear, perceive, and observe, and it is therefore relevant to the plaintiff’s credibility. [Rodriguez v. Suzuki Motor Corp., 936 S.W.2d 104, 106-109 (Mo. En Banc 1997).] It is admissible despite arguments that it is more prejudicial than probative. [Zempler v. Slater, 182 S.W.3d 609, 616 (Mo. App. E.D. 2005).] The plaintiff’s drinking, regardless of the injuries, will have a very adverse impact on the overall value of the case in the minds of many jurors.

Such circumstances as these must be seriously considered and taken into account in evaluating the case and developing a trial strategy. This is an instance in which you might not see the forest because of looking at the trees. Your strategy in such a case could be to emphasize that the plaintiff had done the smart thing and he had pulled safely off the highway rather than continuing to drive after drinking and his drinking had nothing to do with what happened. It would have happened if he was off the highway because he was tired and was sleeping. He shouldn’t be penalized by doing the right thing.

On the other hand, trial strategy is much easier to develop when the truth and emotional reality favor your side of the case. Those intangible elements will favor a very basic and simple trial strategy—that the jury should want to find in favor of the client who was simply a non-contributing victim in the case and has suffered dearly for it.

§1:33   Mediation

Mediation of cases is becoming more accepted and prevalent throughout the entire country. Many states have legislation that permits the courts to require that the case be submitted to non-binding mediation prior to trial. More and more attorneys who have experienced mediation have found the process not intimidating and, for the most part, worthwhile in resolving personal injury cases. Mediation can result in a voluntary settlement of the case without the expense and unpredictability of a trial and sometimes before expensive discovery.

Mediation is the process by which an impartial third-party, usually another attorney or former judge paid by the parties, confers with the parties in an attempt to get them to settle the case. Mediation can be particularly helpful in cases where one or more of the parties or their counsel has unreasonable expectations, or counsel is having difficulty with the client in terms of settlement. A well respected mediator can have a profound effect on a party or insurance company in instances where counsel has been unsuccessful or reluctant to press the party or the insurance company about the realities of the case.

Mediation can also play an important role in trial strategy. While all parties are in the room at the same time discussing the case with the mediator, counsel can communicate information directly to the other party or the insurance company representative without being censored or filtered by opposing counsel. During mediation you get to state your comments directly to the opposing party and you can tell that party things in strict confidence that cannot be used against you in trial (because you sign a confidentiality agreement). If you represent the defendant, for example, you can tell the plaintiff that your client truly is sorry about the plaintiff’s injuries and you are at the mediation to make things right (comments you would never make at trial). By diffusing the plaintiff’s emotions, this strategy has often resulted in settlement of cases that otherwise would not have settled.

Finally, mediation is also an important vehicle by which the opposing counsel’s trial strategy and knowledge about certain evidence and issues can be flushed out well in advance of trial. The usual procedure in mediation is for both sides to present to the mediator their strongest points in an effort to sway or influence the other party or the insurance company representative as to the strength of their position so the other side will be more inclined to settle the case at mediation rather than trial. During the presentation through each party’s mediation briefs (if that is the procedure used), during the oral mediation presentations, and even during the negotiations by both sides through the encouragement of the mediator, each party may be inclined to lay all their cards on the table in an effort to reach a settlement. Oftentimes, information may come to light that the other side was not aware of that will become the focus of further formal discovery if the mediation is unsuccessful.

If both parties or their insurance representatives have agreed to mediate, a sense of urgency to finally resolve the case during mediation develops, and often cases that appeared unlikely to be settled can be settled.

Practice Tip

Never be afraid to mediate the case, regardless of which side of the case you represent. A settled case is always better than a tried case. There are always some benefits to mediation, and almost never is it a total waste of time, emotion, and expense.

§1:34   Partial Settlements and Plaintiff’s Trial Strategy

Most trial strategies are formulated universally against all parties when there are multiple parties. There may come a time in the case when an irresistible opportunity will arise to settle with one or more of the parties, but that will leave the case to be tried against one or more remaining parties. Care should be given to developing a trial strategy and the corresponding evidence that will permit part of the case to be settled with certain parties without substantially hurting the case against the remaining parties. Such a possible strategy must be considered early in the case so that the evidence and the testimony of witnesses, particularly experts, can be structured with this possibility in mind.

Generally, it is best to settle with all parties to avoid the possibility for the remaining parties to depict the party in the “empty chair” as solely causing the incident. However, it may be possible to settle the case with the less culpable parties while leaving a strong and prosecutable case against the more culpable parties. This situation arises frequently in medical negligence cases where more than one doctor, nurse, or other health-care giver participated in negligent conduct that can be viewed as having contributed to cause the injuries or death.

Practice Tip

In a case against multiple defendants, you may want to attempt to arrange your expert witness testimony in such a way that you have a separate expert witness for each defendant and each expert witness is only critical of a single defendant so that if you choose to settle with some defendants and continue to pursue others, you will have expert witnesses at trial who will only be critical of the remaining experts.

Example:Medical Negligence

A 36-year-old woman dies from an undiagnosed cecal volvulus (twisted bowel) after being admitted to the hospital for 36 hours through the emergency room into the care of two third-year residents. The plaintiffs sue the emergency room doctor for failing to call in a surgeon, and the hospital for the conduct of the two residents who diagnosed constipation and ileus (bowel obstruction). The plaintiffs’ two emergency room experts are critical of both the emergency room doctor and the hospital’s two residents, and testify in deposition that the conduct of all three doctors caused and contributed to the woman’s death. The case is presented to a focus group which concludes that the emergency room doctor is 80-percent at fault for not calling a surgeon into the emergency room to examine the woman. The emergency room doctor’s experts testify, in deposition, that the emergency room doctor met the standard of care in that he contacted the next on-call physician to handle the patient, and his responsibility ended there. The hospital offers $750,000 to settle for the two residents, which is accepted by the plaintiffs. The emergency room doctor offers nothing in settlement. The case is tried against the emergency room doctor only. The emergency room doctor’s counsel now blames the two residents through the plaintiffs’ experts who must admit they are highly critical of the two residents, but none of this would have happened if the emergency room doctor had called a surgeon. The plaintiffs’ attorney is now shifting all of the blame to the emergency room doctor, although his experts are still critical of all three doctors. A defense verdict results.

The only way this example situation could have been avoided would probably have been for plaintiffs to have decertified their original experts after the partial settlement and to have sought entirely new experts who were only willing to be critical of the emergency room doctor. This demonstrates, however, the difficulty of settling with only certain defendants and proceeding against others.

Techniques for Advancing Your Strategy

§1:70   Developing the Case Theme

The theme of the case is a condensed, simple, in-a-nutshell explanation to the jury of why the client should prevail in the case. It can encompass liability only or both liability and damages. It is probably the single most important element of developing trial strategy. Careful and significant consideration should be given to the development of a very concise, yet encompassing, theme for the case.

It should be something that is easy to understand and in the most basic terms possible. The very success of the trial strategy can hinge on the theme of the case. The theme should be coined in terms of something noble and just for the client. It should invite the jury to embrace the advocated theme. It should be premised on both emotion and common sense.

The theme of the case cannot be finalized until all of the essential evidence of the case has been discovered, developed, and analyzed. At the end of the case, the jurors should have bought into the theme and accepted it as completely plausible. Once the theme has been developed, the strategy of how to best present the theme with the various pieces of evidence can be finalized.

Practice Tip

Start the final trial strategy with development of the theme of the case and work backward to how to best present the evidence to support the theme.

Example:Medical Negligence Case

A doctor did not consider the patient’s adverse risk factors and operated without medical necessity, resulting in the patient’s death from surgical complications.

Plaintiff’s Theme: “This is a case of a doctor who refused to obey the road signs of medicine and unnecessarily operated on Mr. Jones’s leg for an otherwise non-life threatening condition that led to the complications that took Mr. Jones’s life.”

Defendant’s Theme: “This is a case of a very conscientious doctor who thought at the time, based on the information he had, that he needed to operate on the plaintiff’s leg and it is now only in hindsight that plaintiff’s attorney and hired experts claim that was a mistake. In any event, Dr. Johnson did everything he could to save Mr. Jones’s life.”

Example:Truck Accident Case

The truck driver exceeded federal regulations on hours of service, resulting in driver fatigue that contributed to the driver’s inattention when he struck the plaintiff’s car from the rear, resulting in her quadriplegia.

Plaintiff’s Theme: “This is a case of a trucking company that not only ignored federal regulations concerning its driver’s hours of operation but, worse, encouraged its driver to violate those regulations to make more money; and that resulted in the plaintiff being in this wheelchair for the rest of her life.”

Defendant’s Theme: “This is a case where my client, Johnson Trucking, tried to make sure their drivers complied with all of the federal regulations, but they can’t always control what their drivers may do in isolated circumstances. In any event, the cause of this accident was a wet roadway and not the number of hours John Jones drove his truck.”

Example:Premises Liability Case

A construction company failed to clean up the job site, and the plaintiff was seriously injured.

Plaintiff’s Theme: “This is a case where the construction company could have paid one of its employees $50 to clean up the job site but it did not, and if the defendant had cleaned the job site, Mr. Williams would not be sitting before you today, a victim of these terrible injuries that will plague him the rest of his life.”

Defendant’s Theme: “This is a case where there is certainly enough blame to go around, including to the plaintiff. He could have completely avoided this whole accident if he had only watched what he was doing and reacted to the trash he saw at the job site.”

Practice Tip

Keep the theme brief and simple, and repeat it often throughout the trial, either in words or in the evidence.

§1:71   Creating Vivid Images in the Minds of Jurors

One of the important back drops for any trial strategy is creating in the jurors’ minds visual pictures of your case. It has been demonstrated time and again that jurors are attracted to and absorb visual information more readily than sound recordings and testimony. This is because many jurors tend to think of things in terms of mental pictures. Getting the jurors to visualize your case should begin in voir dire and should encompass the creation in the jurors’ minds of visual pictures of your case through pictures, computer images, various exhibits and even the use of words that help them paint a mental picture.

You should try to plant a mental picture of the overall theme of your case in the jurors’ minds from the beginning of the trial.

Example

In an automobile case where the plaintiff or the defendant had been drinking, but no field sobriety, blood or breathalyzer tests were performed, and no arrest was made or conviction for driving while intoxicated was obtained, getting the jury to start to visualize the case could begin as follows, in voir dire:

“If evidence were presented in this case that one of the drivers had been drinking at a bar and had consumed four beers over two hours before the wreck, do any of you feel that that evidence alone would affect your ability to fairly and impartially decide this case?

“Have any of you, or members of your family, been injured or involved in a wreck with a driver who had been drinking?

“Do any of you have personal feelings about drinking that you feel would make it impossible for you to be fair to both parties in this case?”

Example

In a wrongful death case where the deceased is a young single mother killed in a car wreck, leaving a five-year-old daughter to survive her, getting the jury to start to visualize the case could begin as follows, in voir dire:

“This case involves the death of a single 28-year-old mother of five-year-old Lorna Bolton. Her mother’s name was Jennifer Bolton.

How many of you remember when you were a very young child ever seeing your mother sleeping?

I am sure we all may recall our mothers tucking us in at night, but do any of you ever recall when you were little seeing your mother go to sleep before you did?

Who of you were, as a young child, very attached to your mother?

Do you believe that despite the feelings for your own mother that you had as a child, you can separate those feelings and decide this case based on the evidence you hear and see of the relationship Lorna had with her mother when her mother died?”

Helping the jurors create an image of the case also involves painting a vivid picture of the case with use of one or more of the following:

  • Blown-up documents, charts, graphs or photographs of the scene, parties, vehicles, products and other important objects of the case.
  • Presentation of the actual objects of the case or scale models of the objects of the case.
  • Computer simulations or reconstruction of the event at issue in the case through expert testimony.
  • A request that the trial court permit the jury to visit the scene or to step outside the courthouse to view the vehicle or product involved, under controlled conditions.
  • Large-projector, screen images of photographs and documents in the case generated through presentation equipment such as an ELMO or projector.
  • Videotape presentations of the day-in-the-life film, the wreck-scene film or the drive-to-the-scene-in-an-identical-vehicle film, or similar video footage.
  • ndividual notebooks for each juror, to which are added individual copies of the photographs, documents, and other exhibits as they are introduced into evidence.
  • Audio presentations of the 911 recording of one of the parties reporting the wreck or incident, or portions of a recorded statement of a witness.

Practice Tip

Be careful not to present so much for the jury to visualize that it loses its uniqueness and appeal with the jury. Use visual aids for only the important aspects or issues of the case.

§1:72   Using Concepts of Primacy and Recency

Primacy is the sociological and psychological principle that people (and hence jurors) tend to adopt and be most receptive to the first (that is, primary) information they are presented about an issue or topic. Therefore, it is believed that the earlier a point is presented, the more likely the jury will be to stick with it. The principle of primacy is an important principle of any trial strategy and would obviously tend to favor the plaintiff’s attorney although, of course, many jury trials are won by defense counsel. However, the principle has no real downside, and therefore attorneys should try to impress on the jurors not only the strengths of their position as soon as possible but also a logical explanation and a positive spin on any weaknesses in their position. It is hoped that by stealing the other side’s thunder on any weaknesses, at least the party has admitted them, thus building credibility, and has had the first opportunity with the jury in explaining away the apparent weaknesses.

Recency is the sociological and psychological principle that people (and hence jurors) will remember longest and most clearly the last information that they are presented on an issue or topic. Thus, it is believed that the side of a case with the last word with the jury has an advantage because of the ability to present the most recent information jurors hear. While philosophically, it is possible for the doctrines of primacy and recency to be in direct conflict with each other, the plaintiff’s attorney normally enjoys the unique opportunity to have both the first opportunity (opening voir dire and opening statement) and last opportunity (rebuttal closing argument) to present information on the case to the jury.

This should present the plaintiff with a distinct psychological advantage over the defense with the jury.

Practice Tip

The plaintiff’s attorney should take full advantage of the first and last opportunity to provide the jurors with information about the plaintiff’s side of the case. The first and last information presented should be consistent and should tie the case together from beginning to end.

§1:73   The Order of Proof

The order in which the evidence and witnesses are presented is an important element of trial strategy. Although there will be occasional exceptions to the general rule, it is usually, in every personal injury case, important to start the case with the strongest liability witness and/or evidence, and end the case with the strongest damages witness and/or evidence. In between should come all other witnesses and evidence.

Likewise, each trial day should, as far as possible, start and end with the strongest witness or evidence for that day. Ideally, more complex and involved evidence should be presented in the morning when the jurors will be more attentive.

It is also important to present any important liability or damages testimony with witnesses at trial as opposed to witnesses whose testimony is presented through a videotape or a deposition transcript.

It is probably important for the plaintiff to arrange the presentation of proof so that the jurors hear about the egregious conduct of the defendant first. This permits the jurors to more readily empathize with the plaintiff and forgive any minor indiscretions, because the jurors have concluded that the defendant’s conduct is reprehensible.

Consider calling the defendant early in the plaintiff’s case if there is strong evidence to make the defendant look bad or he or she is a weak witness. It permits the jurors to dislike the defendant from the very beginning of the trial. However, if you do, you present the defense attorney with the opportunity to then “rehabilitate” the defendant with cross-examination during the plaintiff’s case in chief.

[§§1:74-1:79 Reserved]

Practice Tools: Sample Trial Strategy

A.    The Case

§1:80   Facts of Jones v. Thomas

This is an intersectional automobile-collision case. William Jones is a 35-year-old man who was on his way home from an auto parts store where he works as a clerk selling auto parts. Wilma Thomas, who is 65 years old, and her husband were on their way out to dinner and were trying to get to the restaurant in time for the “early bird special.”

According to Jones, as he was driving at about 25 miles an hour, westbound on Main Street at the intersection with Springfield Street, the signal light turned yellow. Since he was about three-and-a-half car-lengths from the intersection and it was too late to stop, he proceeded into the intersection on the yellow light. Just as he entered the intersection, the Thomas car, which had been stopped eastbound on Main Street at the intersection waiting to make a left turn onto Springfield Street, suddenly made the left turn in front of the Jones car while the light for Main Street was still yellow. Jones slammed on the brakes but was unable to stop, and his car collided with the right front and side of the Thomas car.

According to Thomas and her husband, she was stopped at the intersection waiting to make a left turn onto Springfield Street. The oncoming cars prevented her from making a left turn until the light turned yellow. As the light turned yellow, she waited until the light turned red and then made her turn. As she was making her left turn, a car westbound on Main Street ran the red light and collided with the right front and side of her car.

Neither of the Thomases was injured. Jones, who was wearing his seatbelt, locked his arms on the steering wheel but the force of the collision broke his left upper arm and left elbow. He also sustained a classic whiplash injury to his neck.

In addition to the occupants of the two vehicles, a pedestrian on the corner witnessed the wreck, and his observation was consistent with Jones’s account of the wreck.

The police were called. The police officer observed approximately 12 feet of skid marks that he attributed to Jones’s vehicle. He verified that the signal light had a three-second yellow light.

Jones was taken by ambulance to a local hospital. His arm was examined, x-rayed, diagnosed as an elbow dislocation and humeral fracture, and put in a cast. His neck was x-rayed showing no fractures, and he was diagnosed with a moderate subluxation of the cervical spine. He was discharged the next day.

For a month, Jones recuperated at home. His neck injury slowly improved but his neck and arm injuries still cause him significant pain. He has continued using prescribed pain medicines.

Jones had seen an orthopedic surgeon two years before the wreck for neck pain attributed to mild osteoarthritis, which responded to heat and medication. A month after the wreck, his left arm cast was removed, and he underwent rehabilitation for his arm but discontinued it after several weeks because of severe pain in spite of medication. The doctor ordered more rehabilitation, which Jones again stopped because of the severe pain. Today Jones’s elbow remains tender, especially after he uses it a lot, and the range of motion is still significantly diminished. He continues to have a dull, throbbing pain in his neck and somewhat limited range of motion on turning his head to the left.

The defense had Jones examined by an orthopedic surgeon who said that Jones should be able to regain full, pain-free use of the arm if he would continue in the rehabilitation program.

Jones is married with three children and before the incident worked as an auto parts store clerk. He has tried to return to work but the pain and 50% reduced range of motion have prevented him from being able to do the physical work he must do. He was fired reluctantly from his job, and he and his family have been living on his unemployment benefits, his small savings, and his wife’s part-time earnings.

Jones’s medical expenses total $18,000 and his lost wages to date total $56,000. Thomas is 65 years old. She and her husband are retired and moved to this city six months before the wreck. Jones’s complaint/petition alleges violation of the signal-light law, failure to keep a careful lookout, and failure to yield the right-of-way. Thomas’s answer, under the state’s comparative negligence law, alleges violation of the signal-light law by Jones, failure to keep a careful lookout, and failure to yield the right of way.

Plaintiff’s Trial Strategy

§1:90   Strengths and Weaknesses

Trial Strategy Balancing Chart: Strengths and Weaknesses Jones v. Thomas

Strength How to Emphasize This Strength Weakness How to Neutralize / Minimize This Weakness

A. Client & family are by far the best part of the case—very likeable & honest.

A1. Have client, as well as his family, displayed prominently throughout the trial.

A2. Have the client & wife testify early in the case.

A. Liability is the weakest part of our case since our client was going through the intersection on a yellow or red light.

A1. The defendant has the same problem except she failed to yield the right-of-way and this should be emphasized.

A2. Emphasize that the defendant failed to yield the right of way by trying to make a turn in front of our approaching car.

B. The jury aspect of the dislocated elbow and its attendant economic damages and severe pain.

B1. Make this the main focus of the damages aspect of the case by focusing client and physician’s testimony primarily on this.

B2. Focus damage exhibits on this injury with blown up x-rays and elbow model.

B. Our neck injury is weak because there is no objective evidence of neck injury and our client had a lot of pre-existing neck problems.

B1. Primarily focus on our dislocated elbow and its attendant problems as the cause of medical bills and lost wages.

B2. Don’t spend much time in testimony of client or doctor about this injury. Bring it up and go on to the elbow.

C. The nature and extent of damages that can be shown, both medical and wage loss.

C1. Use charts to feature the amount of medical expense and lost wages.

C2. Use of both vocational expert and economist to maximize the amount of wage loss, both past and future.

C. Defendant’s examining doctor will make a good, personable witness.

C1. We need to cross-examine him strongly on his close ties to defendants and insurance companies.

C2. Cross-examine this witness on what he will say to help us and make use of his credibility.

 

 

D. Defendant and her husband will make good, honest-appearing witnesses.

D1. Attempt to keep focus from them.

D2. Do not talk in terms of “against the defendant.” Emphasize it is a finding for the plaintiffs and not against the defendant.

§1:91   Liability Theory

Rather than becoming ensnared in who wins the red light issue, the plaintiff’s attorney should focus on the defendant’s failure to yield the right of way. This is because it is easier to explain that the real crux of the defendant’s negligence is not dependent on whether she was running a red light or not. It is the fact she failed to yield the right of way when she tried to turn directly in front of a car that was obviously approaching from the opposite direction. This helps to blunt the whole issue of whether the light was red or yellow because it doesn’t really matter since the defendant’s real transgression is quickly turning in front of an approaching car which you should not do in any event.

§1:92   Damages Theory

The neck injury should not be the main focus of damages because of the pre-existing problems and the soft tissue nature of the injury. To force this issue will appear overreaching, and credibility will be lost. The main focus of damages should be on the fracture of the arm and dislocation of the elbow, as these are the primary sources of economic damages and the main sources of severe pain. Also, the injuries are clear-cut and multiple, explaining the lack of full recovery. The jury must be impressed with the degree of injury, that it is permanent, and possibly career-disabling, in order to justify a significant award in the range of $250,000 to $400,000. This will require taking the approach that even a seemingly minor injury can sometimes have devastating and career-ending consequences, in hopes of getting the jury to consider an award for lost earning capacity. It is also important to address the failure to complete therapy by explaining that the nature and degree of pain are related to the elbow damage and that Jones is not a malingerer: he tried to rehabilitate, he hates not being able to work, and he has every motivation to completely recover.

§1:93   Case Themes

The overall theme should be: “This is a case where a person who was in a hurry took a chance and failed to yield the right of way to on-coming traffic, and that caused the plaintiff a significant and disabling injury.”

The theme on damages should be: “Common injuries can sometimes cause devastating effects”—to explain the elbow dislocation as having ended the plaintiff’s working career in auto parts.

§1:94   Creating Vivid Images

The wreck needs to be recreated in the jurors’ minds through the plaintiff’s eyes, so that they can understand what the plaintiff faced when driving into the intersection and can appreciate the traumatic effect of the wreck and the permanent effects of the injuries on Jones’s life.

Liability: Several large, blown-up photographs of the intersection from both drivers’ perspectives should suffice, as well as photographs of the damaged cars to show the traumatic nature of the impact. Also, an intersectional diagram will be helpful for the witnesses to mark to help summarize the liability case.

Damages: The x-rays will be helpful to visualizing the dislocation and fracture of the left arm. A working model of the elbow can be used to explain where the ligament damage and scarring occurred and why some patients never fully recover from this injury. This will permit the jurors to see the inside of the plaintiff’s elbow, and to fully understand why the injury is permanent, disabling, and career-ending. A vocational expert and Jones’s economist will be needed to project significant loss of earning capacity. The economist’s charts and visual aids will explain the effects of future lost earnings.

§1:95   Witnesses and Order of Proof

The choice and order of witnesses are basic:

  • Witness at scene;
  • Plaintiff;
  • Police officer at scene;
  • Treating orthopedic surgeon;
  • Plaintiff’s wife;
  • Plaintiff’s former employer;
  • Vocational expert; and finally
  • Economist.

§1:96   Cross-Examination of Defense Witnesses

The defense will probably call only the defendant, her husband, and the examining orthopedic surgeon. Cross-examination of the defendant and her husband should focus on the facts: they were in a hurry, the defendant could not watch both the traffic light and on-coming traffic, and even under the defendant’s perception, she turned on a red light, which was a traffic violation. Cross-examination of the orthopedist should focus on three items:

  • He does this a lot for defendants and insurance companies;
  • He did not treat the plaintiff and monitor his rehabilitation;
  • Not all patients with these types of injuries fully recover.

[§§1:97-1:109 Reserved]

C.     Defense Trial Strategy

§1:110 Strengths and Weaknesses

Trial Strategy Balancing Chart: Strengths and Weaknesses Jones v. Thomas

Strength How to Emphasize This Strength Weakness How to Neutralize / Minimize This Weakness

A. Both the defendant and her husband will make good witnesses.

A1. Keep the defendant and her husband a very visual and central theme of your presentation.

A2. Whenever you can, refer to them and remind jury that she is who they have to find against.

A. Our liability is a problem because we turned in front of an oncoming car on a yellow light.

A1. Emphasize that plaintiff was running through at a significant speed on a red (or at least a yellow) light.

A2. Emphasize the eyewitness account of plaintiff’s greater distance when light turned yellow and that skid marks indicate plaintiff did not immediately hit the brake.

B. The defendant’s examining doctor will make an excellent witness to help minimize the neck injury and the overall impact of the shoulder dislocation.

B1. Make sure this witness is prominently mentioned as to his sterling credentials and failure of his objective findings on examination.

B2. Put this witness on early in the defense portion of case.

B. The plaintiff and his family will make good appearing witnesses

B1. Focus on the plaintiff’s weaknesses of dropping out of rehabilitation and that he did not even try to look for work to call into question his good qualities and possible malingering.

B2. Focus on the plaintiff’s testimony differences from the independent eyewitness at the scene to further call into question the credibility of plaintiff.

C. The plaintiff’s attempt to retire on a soft-tissue neck injury and dislocated elbow should be emphasized as overreaching.

C1. Attempt to characterize this for what it is—over-reaching.

C2. Have the examining doctor help characterize the relatively minor injuries as a basis for the later over-reaching closing argument.

C3. Emphasize the plaintiff’s dropping out of rehabilitation and failure to seek work as evidence of the overreaching.

C. The plaintiff’s vocational expert and economist will make good witnesses.

C1. Emphasize that their testimony is irrelevant because it is all premised on permanent injury and there is none based on the examining doctor.

C2. Keep their cross-examinations brief and emphasize that their testimony is based on assumptions that they don’t know whether they are true or not.

§1:111 Liability Theory

The defendant and her husband appear to be nice, decent people and will make good witnesses. An outright win on liability is unrealistic. A verdict that the defendant was entirely at fault is also unrealistic. More realistically, the jury may attribute fault 70-percent to the defendant and 30-percent to the plaintiff. But it may be possible to get a 50-50 split on fault, if the jury believes the defendant and her husband, and concludes that the plaintiff also ran the red light.

§1:112 Damages Theory

This is a stronger position than liability. If the plaintiff can be characterized as wanting to retire on relatively minor injuries at the defendant’s expense, the jury will not want to let him do that and it will appear as overreaching. Also, the plaintiff’s failure to follow the doctor’s orders and stick with rehabilitation in spite of the pain, and his failure to look for other work, will reinforce the view that he is greedy and trying to get something for nothing. The examining orthopedic surgeon, although a frequent defense witness, will make a good witness to counterbalance the plaintiff’s treating doctor.

§1:113 Case Themes

The short skid marks (only 12 feet long) support the contention that the plaintiff did not take his foot off the accelerator, to apply the brakes, until just before impact. Had he braked a second sooner, the collision would never have occurred.

The liability theme should be: “The plaintiff did not provide even one second of caution and, if he had, we would not be here today.” This permits the argument that the wreck was really the plaintiff’s fault.

The damages theme should be: “This is a case about a man who wasn’t following his doctor’s orders and won’t try, and he wants to be rewarded for that.”

§1:114 Visualization

The defendant and her husband come across as everyone’s grandparents. The effort should be made to personalize both of them. Emphasize that they were both in the same wreck and they were not hurt, in order to indicate that the plaintiff is faking his injuries. Have the defendant and her husband explain the wreck from their perspective and view. Probably no exhibits except those that the plaintiff may use on liability will be particularly helpful to the defense, except the models and charts that the examining orthopedist may use. Explain why the plaintiff has no physical reason not to recover.

§1:115 Witnesses and Order of Proof

The witnesses and order of proof are simple, as follows:

  • Defendant;
  • Defendant’s husband; and
  • Examining orthopedist.

§1:116 Cross-Examination

In cross-examining the plaintiff on liability, defense counsel’s main focus should be on the fact that when the light turned yellow, the plaintiff did not immediately apply the brake and slow down or even try to stop—as he testified in his deposition. Emphasize that yellow means caution and caution requires slowing down and stopping. Also attempt to discredit his estimation of his car’s distance from the intersection when the light turned yellow, which differs from the opinion of a witness at the scene who puts his car two additional car-lengths away. Hammer the plaintiff on his failure to obey his doctor’s orders; emphasize each and every therapy session he missed; and establish that he has not looked for other work.

In cross-examining the witness at the scene, emphasize that he was not really paying attention because he was not driving, and so he could be wrong. With the police officer, establish the skid marks and their significance. Try to introduce in evidence that a yellow light is a potentially dangerous situation and that a prudent driver should brake at the sight of one.

As for the vocational expert and economist, closing argument will be that these witnesses are irrelevant because no permanent injury is involved. Any cross-examination of the vocational expert will be brief, and will focus on the fact that a 35-year-old person could easily find other work, if that is necessary. Cross-examination of the economist should be brief. He computed lost future income based on certain assumptions about future rates of inflation and prudent investment yields. The result of his calculations is that lost future income, when adjusted for inflation and reduced to present value, creates a sum that, in the first year, will generate more interest income than the plaintiff ever earned in any year. The economist also assumes that the plaintiff’s arm injury is permanent, and his calculations are based on that assumption. In closing, argue that the economist’s testimony rests on a false assumption and should be disregarded.

The plaintiff’s spouse is unlikely to say anything that will help the defense. The best approach is to get her off the stand quickly.

On cross-examination of the treating orthopedic surgeon, the best approach is to get him to admit that a complete recovery after a common dislocation is usually expected; career-ending injuries are rare, and when they do occur, there is usually a medical complication involved that he did not find in the plaintiff. Also address the fact that patients unwilling to follow a prescribed therapy program fail to recover completely; if the plaintiff’s pain is serious, a variety of medicines can be tried to assist the therapy program; and, finally, surgery can usually correct any physical condition that is impeding a full recovery. He will have to admit that the plaintiff’s x-rays show no physical problem with the elbow joint.


Donald E. Woody graduated from the University of Missouri-Columbia School of Law in 1973 in the top 10% of his class (13 of 157). He was the Note and Comment editor for Missouri Law Review, and was inducted into the Order of the Coif in 1973. Mr. Woody lives and practices in Springfield, Missouri, where he represents both plaintiffs and defendants in his trial practice. He specializes in medical malpractice, personal injury, products liability, and business litigation cases, and has won and settled several million-dollar cases in those areas of expertise.

Mr. Woody has been named as one of the Missouri & Kansas Super Lawyers in 2008 and 2009.

He has written and lectured on numerous trial practice topics for state and local trial lawyers associations including authoring the chapter on “Closing Arguments” in the Missouri Products Liability Handbook.

Mr. Woody is a former president and current member of the Springfield Area Metropolitan Bar Association; a member of the Missouri Association of Trial Attorneys; and a member of the American Association for Justice. He is licensed to practice before the United States Supreme Court; United States Court of Appeals for the Eighth Circuit; United States District Court for the Western District; and all courts in the state of Missouri. Mr. Woody received his AV Rating from Martindale-Hubbell in 1992.

Mr. Woody has been married to Ann since 1971, and they have two children: Marshall and Cate. When not advocating for his clients, Mr. Woody relaxes by float fishing, bicycling, and playing golf.