Every lawyer can remember two factors that were discussed in the first days of law school: “If you have bad facts, argue the law; if you have bad law, argue the facts.” For example, if you represent a plaintiff against a large company that put out a product that hurt your client, but the law is such that it would be difficult for a jury to find the company liable, argue the facts of the case: your client is badly injured, and justice must prevail. In contrast, if you represent the defendant, argue the law: there can be no finding of liability even though one naturally would feel sorry for the plaintiff.
But there are four other important factors you need to be aware of, each of which can determine the outcome of your case. Be aware of them when you go to trial or evaluate your case for settlement. Witnesses bring the facts to life. As a plaintiff’s attorney, you may have compelling facts (e.g., the defendant admitted running the red light and hitting your client’s car), but if the plaintiff is not likable, the amount the jury awards him will certainly be effected. Many attorneys have a blind spot for this fact which should be obvious.
Likewise, the biases of jurors are very important, since they see the facts of the case through the lens of their own perceptions. In addition, the location of a trial is important. An argument by plaintiff’s counsel that a corporation should be punished severely is going to be received by jurors more readily in certain parts of the country than others depending on the jurors’ prevailing attitudes.
The judge is another important factor. If the judge likes your case and gives you favorable rulings on evidence, that can certainly be outcome determinative. Moreover, judges sometimes fail to shield their opinion of the case from the jury. Jurors notice the tone of a judge’s voice when he rules on objections, speaks to counsel, or asks questions of witnesses, and his facial expressions are noted as well.
The final factor is the attorney. The impact can be significant. The facts that a jury hears are the result of the attorney’s preparation and investigation prior to trial. For example, an attorney controls what documents have been discovered and what witnesses have been interviewed prior to trial to support his case. Moreover, through effective presentation at trial, great trial attorneys get more favorable verdicts because they have been able to present a clear and compelling case. In addition, the jury is also influenced by the attitude and demeanor the attorney projects.
So, the next time you win or lose a trial, it may be your trial skills that carry or cost you the day, but remember that there are many other factors in play.