Safety Rules Development

Safety rules are the backbone of any successful trial strategy because they establish clear standards of conduct that resonate with jurors. When a defendant violates these rules, it becomes much easier to demonstrate negligence and responsibility.

 

Jurors connect deeply with safety rules because they're based on common sense and human experience. They understand that rules exist to protect people, and when someone chooses to break these rules, the consequences are foreseeable and preventable. This makes it much more compelling than arguing abstract legal theories.

 

If rules are not properly developed in a case, then juror motivation for a serious verdict may be a problem.

A statistic is used in a civil trial to show to the jury that the conduct of a defendant in question was forseeable.  Generally it should be a numerical statistic that may shock a juror who may think "I didn't know that this conduct happened this often!"  It would further make a juror feel that if the numbers were such as recorded then this conduct could happen to the juror himself at a later point in time if something didn't change. 

 

One is better off to do without a statistic if they cannot spend the time necessary to make the statistic effective. 

 

Look for statistics that create "shock and awe" moments - numbers that immediately grab attention and demonstrate the magnitude of the problem. However, these must be credible and from reputable sources.

Developing an efficient and effective Voir Dire

The jury selection process is a great opportunity to advance your case light years ahead of the defense.  Every question should be carefully chosen, timed and tested to make certain that its effectiveness does exactly what is intended.  There are numerous reasons for an effective voir dire which should always be reviewed and examined.  

 

In Voir Dire limited or Unallowed states, one must be cognizant as how to advance the concepts through bill board statement

Properly preparing your client and witnesses for trial.

 

Many of us have had the experience of trying a big case and the client goes completely off the rails and ruins the theme that we were trying to present.  Almost always this is a result of poor witness preparation.  

 

Whether you are addressing your client's fears and misunderstandings of the court room or preparing an independent witness with stories that are germane to an understanding of your client's life, witness preparation is extremely important. 

Trial preparation and trial execution can go flawlessly or disastrously depending upon the way that you approach your preparation.  Witness management and order as well as proper jury selection, opening statement and examinations are critical to a jury understanding what you are trying to convey.  

 

With the right strategies and teams in place trials can go according to plan instead of according to the direction of the wind blowing that day.

Developing strategies for the admission of liability can have a huge impact on a jury's assessment of damages in your trial.   It is an old and favorite defense's technique to try to throw your case off track by admitting liability on the eve of trial.  

 

I have written an article in Tennessee that addresses these tactics and ways to combat them published in the Tennessee Trial Lawyer's Magazine in 2018.  The law and strategy is still pertinent today.

Proper cross examination can be essential to keeping your case on track.  It allows us to discredit opposing witnesses, establish key facts favorable to our case, and most importantly, tell our client's story through the other side's witnesses.

 

On the other hand, improper cross examination allows a witness to become uncontrollable and go off the rails against you.  Cross examination is an art form that requires extensive preparation, strategic thinking, and the ability to think on your feet while maintaining absolute control of the witness.

Closing arguments are the crux of what drives the final determinations of your juries.  Without an effective closing argument, verdicts tend to be low and out of proportion oftentimes to the harm caused.  

 

Many lawyers feel they need to recite and tell juries "what they just heard."   This is a huge mistake in that the jury is relying upon the attorney to guide them not "tell them" in the trial.  

 

There are many time tested aspects to the structure of the closing argument.  In addition, there are presentation methods that are extremely effective in persuading your jury to render great verdicts.

The lawyer that fails to acknowledge and properly address each and every defense in their case is destined for failure.  

 

The Art of War was written by Sun Tzu around the 5th century B.C.  He said that you need to understand your enemy; therefore you need to know their strengths, weaknesses, and strategies in order to predict their actions and prepare your own responses.  

 

Ordinarily in every case we prepare a defenses notebook which has been thoroughly thought out and strategized.  Oftentimes we engage focus groups that tell us which of the defenses are the strongest and which can be the most deadly.   Many times focus groups can also be used to concisely tell us how to combat each and every element of the defense.

The development and use of power words can be the fuel that ignites the fire.  Power words tap directly into human emotions and psychology. They can be like verbal dynamite - they have the ability to instantly grab attention, stir emotions, and create lasting impressions in jurors' minds.

 

These words become anchors in the jury's mind, helping them remember key points of our case, but they must be used strategically and sparingly.  Otherwise they can make you look overly dramatic.

Drafting and Testing Opening Statements

 

Papa Don Keenan says that the opening statement is where you win or lose your case - it's that critical. It's your first real opportunity to tell the jury your client's story and plant the seeds of your theory of the case.

 

It has been shown that jurors make up their minds about 80% of the time during opening statement. That's why one should focus on telling a compelling story that connects emotionally with the jury right from the start.  Opening statement isn't about argument - it's about showing the jury what happened through a clear, honest narrative.  It needs to be clear and concise with visuals, if necessary.  

 

A poor opening statement sets an attorney up for failure.  Oftentimes opening statements go through thirty plus drafts before they are finalized.

Setting up Focus Groups properly for Critical feedback in your case

 

There are approximately 20 different types of focus groups that you can employ in your case, although they generally fall into 4 categories.  The biggest downfall in a focus group can be setting it up such that a group tells you what you want to hear.  This causes a false sense of security and can be a downfall to a case.  Only a few poorly chosen words can cause this.  I have done this a few times. 

 

With proper focus groups, we can refine our trial strategy, adjust our language, and better predict how actual jurors might respond to various aspects of our case. I've found them particularly crucial for gauging emotional responses and uncovering hidden biases that might not be apparent through traditional case analysis.

Developing Discovery and Deposition Strategies

 

Discovery, Requests for Documents, Interrogatories and Depositions will be the backbone of your presentation at trial.  Properly executed it will take away lots of the uncertainty when you do execute your trial plan.  

 

Papa Don has developed a strategy for all phases of discovery, including the proper way to approach deposition practice.  Assistance in developing your discovery plan is usually a must.

Mediation can resolve your case and save tons of time.  Unfortunately, with in the current climate most lawyers count on mediation to resolve their cases instead of a trial by jury that can lead to much more money.  This results in adjusters and defense lawyers offering pennies on the dollar at mediation.  If the defense senses that you are a "settling lawyer" your chances of a good recovery are very slim.  

 

Preparing and understanding the mechanics of mediation is critical to a full recovery for your client.

The development and presentation of damages is so important to the proper presentation of your client's life.  

 

Understanding how to present damages effectively is crucial for any trial lawyer. First, you must humanize your client's story - it's not just about numbers on a page, but about real human suffering and loss.

 

Second, we should always break down damages into specific categories and support each with concrete evidence. Don't just say "pain and suffering" - detail how the injury affects daily activities, relationships, and quality of life. Use day-in-the-life videos, medical illustrations, and expert testimony to make these impacts tangible.

 

Last, we should never oversell or exaggerate damages. Credibility is our most valuable asset in the courtroom. 

 

Finally, remember that damages aren't just about compensation - they're about justice and preventing future harm. Help jurors understand their role in not just helping your client, but in making their community safer through their verdict.

Papa Don Keenan has recently said that if he were to start a new practice today, he would specialize in employment law.   Under the current state of political affairs, there is a considerable backlash and amount of anger toward treating people unfairly in the employment world.   

 

Some recent verdicts are reaching into eight and nine figures due to some of the emotional components of these cases.  

 

Without proper structuring and development, many lawyers are missing great opportunities with employment cases.

The finding and preparation of expert witnesses serve as the scientific and technical backbone of complex cases. They help translate complicated concepts into language that jurors can understand and relate to.

 

The key is selecting the right expert who not only has impeccable credentials but can also effectively communicate with the jury.  But experts shouldn't just recite facts and opinions. They need to be woven into the larger narrative of your case. 

We all know that the average mind has a time span of about 20 minutes.  In addition, the mind has different senses to absorb information, whether by hearing, seeing, smelling or touch.  Developing proper exhibits that show juries far more than the spoken word is critical to keeping your juries attention as well as expanding the way that juries understand your case.  

 

The Keenan Trial Institute has a course devoted completely to this endeavor in the Seeing Is Believing course.

Understanding every element of your client from top to bottom is the only way a lawyer can effectively understand their client and present that client's story.  

 

Taking the painstaking time to develop the client's biography forces lawyers to do this properly.  Many elements go into this biography, each of which, must be properly explored.

Analogies and metaphors are powerful tools that help jurors grasp complex concepts by relating them to everyday experiences.

 

Use of such phrases such as the harm that they set up was "like a ticking time bomb waiting to go off."  In the case of betrayal one may say "you can't fool all of the people all of the time."  There are numerous every day analogies and metaphors.  People use them in every day language.  They create mental pictures that stick with jurors throughout the trial. 

 

The key is choosing analogies that are simple, relatable, and emotionally compelling. They should clarify, not confuse. The best analogies are those that jurors can take back to the deliberation room and use to explain the case to each other.

 

Oftentimes we are able to mine great analogies when doing focus groups.