Fear you are talking too much to a jury? Then WAIT
Jeremy Richter
When addressing a jury, lawyers can often be suckered into getting carried away with the sound of their own voices. Talking for the sake of talking. Continuing to be the center of attention because you're under the impression the jury cares what you have to say or will be more likely to find in your client's favor the longer you talk to them.
This is a bad strategy. Whenever you are in front of a jury, you need to have reasons you’re talking, goals to achieve. One way to stay on track is to apply the WAIT Principle.
WAIT—WHY AM I TALKING?
The WAIT principle can help you be more discerning about what you’re saying and why you’re saying it. If you are talking in front of a jury, there should be a tactical consideration behind it. This applies whether you’re asking questions of the jury panel in voir dire, speaking directly to the jury in opening statements or closing arguments, examining witnesses, or making objections.
The WAIT principle gives a structural framework for effective and considered communication. Here are four questions you should ask yourself that will help guide how you choose to communicate:
- 1. Am I talking because I want to share something I think is relevant to the conversation?
2. Am I talking to control the narrative?
3. Am I talking to garner sympathy?
4. Am I talking because I want to be the center of attention?
Each of these reasons for talking has its merits, and in the appropriate context can be effective. So let’s take them one at a time.
1. Am I talking because I want to share something I think is relevant to the case?
I dare say that any time you’re speaking in the presence of a jury, what you’re saying should be relevant to the case. Even if you are sharing a parable and using a metaphor, if it isn’t clearly applicable to the facts, law or theme of the case, then the jury will get lost, disinterested or worse—confused.
In this era of ever-present distraction and shorter attention spans, keeping an audience’s attention is difficult. The best ways to maintain the audience’s interest is through storytelling and providing useful information that drives the case forward.
2. Am I talking to control the narrative?
Your communication must be directed and intentional. There will be times in trials where the only reason you are addressing certain topics is to control the narrative. If you are trying a disputed liability car-wreck case, you want the jury to believe your client’s account of the accident.
You begin this with the way you formulate and ask questions in voir dire. You continue to manage the jury’s perspective of the incident by the manner in which you inform them during opening statements. The questions you ask of the witnesses should be directed to controlling the narrative you are tailoring. Your closing argument should be constructed in such a manner that all the prior elements of the case are sewn together so the jury reaches an inevitable conclusion of finding for your client.
3. Am I talking to garner sympathy (or erode it)?
In a trial last October, we were trying a case in which we were not disputing liability for a car wreck. The plaintiff was not at fault. The at-fault driver had already settled out of the case. We were representing the big, bad insurance company against whom the plaintiff was trying recover uninsured and underinsured motorist benefits. We agreed that he was entitled to some amount of money, but we firmly believed that the plaintiff was overreaching. He was claiming to be more injured than we believed him to be.
My objective in cross-examining the plaintiff was to erode the sympathy that his lawyer was trying to establish. During examination, they talked all about his chronic pain and how much he missed racing motorcycles, which he claimed to be unable to do since the accident. The trouble for them was, I had photographs of him racing motorcycles after the accident.
All of my questions were intended to paint him in a corner so that I could impeach his testimony. I had a strategy going in rather than scatter-shooting and hoping to land a few points. If I were able to impeach him and show him to be less injured than he was claiming, I could get a step closer to getting a favorable verdict from the jury (and the jury eventually agreed).
4. Am I talking because I want to be the center of attention?
Mostly, if you’re talking just to be the center of attention, you will be on treacherous ground. However, I have seen this tactic used very effectively by a grizzled veteran in a dangerous venue. We were trying a case where (again) we were arguing the plaintiff’s neck surgery she had three years after the accident wasn’t made necessary by the accident, and we had some pretty good evidence to support that. In closing arguments, my partner told a story about when he was a child and got a spanking for something he didn’t do. His point to the jury was that if they attributed the neck surgery to the accident and awarded damages to the plaintiff accordingly, they would be “spanking” our client for something he didn’t do.
When the plaintiff’s lawyer got up for his rebuttal, he absolutely preached to that jury. He must have told that jury to “spank him” four dozen times. It was a more fiery invocation than I’ve seen in most churches. He was making himself the center of attention, but doing so in such a compelling way that the jury just fed on it. It was a bad day for the defense.
WAIT REQUIRES INTENTIONALITY
Have a purpose for everything you say and do in the presence of a jury. In the same way that a good novelist only includes the parts of a story that drive his characters and plot forward, everything you do in front of the jury should be measured and intended to drive your case toward the jury finding in your client’s favor.
Jeremy W. Richter is an associate with Webster Henry in Birmingham, Alabama, and writes an eponymous law blog. He is the author of Building a Better Law Practice: Become a Better Lawyer in Five Minutes a Day.
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