The Litigator’s Playbook: One Size Does Not Fit All!

by Jeri Kagel, M. Ed., J.D.

We like rules. Whether we are the people who follow rules, who try their luck at “bending” the rules, or those who rebel against rules, we typically like to know what the rules are. We think that if we know the rules, then we understand the game and even how to play it.

For litigators, the “game” is trying a case. Jury instructions are the “rules” for the jury, and for the trial attorney, there are the rules of evidence. Yet in the courtroom, there is more to the “game” and the “rules” are not so clear.

As a trial consultant, my job is to understand the interplay of psychology, communication and law. This interplay has no clear set of rules: instead, it consists of multiple “gray” areas for us to focus on to enable us to anticipate jurors’ unstated questions and quell their concerns.

Last month’s Litigator’s Playbook left us – along with my fellow members of the American Society of Trial Consultants – with several strategy questions presented by Rod Blagojevich’s criminal trial, including the defense decision to rest without calling any witnesses, which ran counter to:

1. The defense promise to call several witnesses, not the least of which was Rod Blagojevich himself, and
2. Blagojevich’s insistence to the media that he was innocent and that he would say so at trial.

Yet Blagojevich was acquitted of all but one rather minor charge of lying to the FBI. The prosecution failed to convict on its more serious charges of conspiracy and racketeering.

In my experience, when attorneys make promises to a jury, they swim in precarious waters if they do not keep those promises. Most often, trial decisions are based on how lawyers believe the jury is perceiving those telling the story of the case – attorneys, clients and witnesses. Behavior at trial is often translated back to the underlying event. So, for example, should a jury believe someone is lying under oath, they will usually think he has lied before.

Yet the Blagojevich defense team decided not to follow the “rule” that attorneys should keep their promises to a jury. Surprising? No. From my perspective, one size does not fit all! Any one so-called “rule” does not fit all cases, fact patterns or people. Here is my perspective on the Blagojevich attorneys’ decisions and how to – or not to – make use of them in your cases:

1. Rod Blagojevich began “testifying” to the media almost every day since the allegations were leveled against him. He repeatedly said that he was not guilty and that the government had no case against him. With all these pretrial statements, putting him on the stand posed only risk.
2. People in Chicago certainly knew their former governor and tended to either like him or think of him as a buffoon. Joann Chiakulas, the juror who held out for acquittal, “thought he was narcissistic” and that his public statements were “disorganized and all over the place.” She thought “he was just rambling.” The conspiracy and racketeering allegations were complex, and the prosecution put on a long and somewhat cumbersome case. Where, as here, a crime seems difficult to commit, jurors may excuse a defendant who does not seem astute enough to commit a complicated crime.
3. Once the defense attorneys determined to break their promise to put on witnesses, they had to spin that decision in their favor. And spin they did: They built on Blagojevich’s constant refrain that the prosecution had no case. If one has nothing to defend, there is no reason to defend.
4. Finally, as a trial consultant, I think the Blagojevich team gave the jury an additional, more subtle, message: “The prosecution has kept you here too long. We understand your desire to get out of here. We’re on your side.”

Many of you will not be representing famous people about whom the public may have preconceived notions. Yet we can all learn from the Blagojevich defense. First and foremost, know that it is not fatal to fail to follow through on promises you made in your openings. If you make a strategic decision to veer from what you promised, do not ignore that change. Do not sweep it under the rug, thinking that jurors will not remember. Instead think about how that change can fit into, and become a part of, your story.

And remember, there really are no rules or absolutes that you must follow. Instead there are guidelines that need to be considered against the facts, people, allegations and “grays” of your particular case.