What if There is No Good Answer?
Most of us have been in the dreaded situation where we are facing an allegation or piece of evidence in court that we simply have no good answer for. But what do you do in that situation? We have seen attorneys try to use vague language to evade or gloss over the issue. Or use various analogies or examples to keep from confronting problematic issues directly. Or simply ignore the issue altogether. But are those strategies effective? Does such redirection work with jurors?
In our experience, the answer to those questions is a resounding no. Staying silent on an issue is perceived as an omission—but with a “gotcha” effect. Being vague usually comes across as that—as evasiveness—which unfortunately creates a credibility problem for the attorney throughout the case. And making incongruent analogies has an air of deceptiveness that jurors tend to pick up on rather quickly and react to fairly strongly.
So what is the answer? You must face the issue head-on. Jurors know it exists. You know it exists. So even when you don’t have a good argument on a particular topic, addressing it directly strengthens your stance on other points. But how do you talk about something when there’s nothing good to say? Every set of case facts is different and different clients are comfortable with different things, but some options are sketched out below:
-Concede the point. Admit that X should not have occurred/been said. If there is context that makes it more understandable, provide it, but continue to be clear that it should not have happened. Conceding a point that is indisputable only serves to increase your credibility.
-Provide the true explanation—even if it’s not great. We’ve seen many clients want to shy away from the real reason a memo was written or a mistake was made only to learn that jurors understand—and sympathize with—the motivations of real people (“He was afraid he’d lose his job”; “She had a frustrating day and lashed out in an email.”) if they are directly conveyed to them. But if they are defended without explanation, with a vague explanation, or ignored, jurors don’t have the ability to cut you that slack.
-Bring up to the issue directly, but only to explain why it isn’t important to the case. Sometimes, the backstory of an issue is so egregious/appalling that having someone testify about it can only make it worse, but for whatever reason, you can’t simply concede that it wasn’t handled appropriately. In those cases, the best way to handle the issue it to explain why it isn’t an issue. Ex. Ms. Attorney is spending a lot of time talking about X. She brings it up at every opportunity. And she’s doing that because she wants me to spend all of my time talking about X, because she wishes that’s what this case was about. But it’s not. The case is about Y. But she knows that if you really examine Y, her evidence isn’t that strong, so she tries to deflect by focusing on X. So each time she brings up X, ask yourself, “What is it about Y that she doesn’t want me to focus on? What does she not want me to understand?” because when you look at the verdict form, the issue in this case is clearly Y.
Jurors are naturally drawn to the dramatic and inflammatory aspects of a case. Trying to simply gloss over those issues will pique their interest even further. Without a doubt, jurors are going to talk about the problems in your case. When you have no good answers for those problems, your only paths to success are to give them an explanation they can work with or an explanation as to why it’s not important, along with a roadmap to the things that are. Otherwise, the very issue you choose to ignore could be the deciding issue in the case. And the jurors who are willing to fight for you will be left completely unarmed for the fight.
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Tracey Carpenter, Ph.D. and Susan Chiasson, Ph.D. started Carpenter Trial Consulting in 2010. They each have extensive experience in high-stakes civil litigation and specialized expertise in how jurors analyze evidence, assess witnesses, and arrive at verdict decisions.