14 effective trial tactics used by defense lawyers
Most experienced defense attorneys in personal injury cases employ tactics that are on the simple side, as opposed to complex tactics that may be difficult to see or deal with. Believe it or not, the simple tactics are the ones that work. This article lists some of the most widely used defense tactics which, while appearing simple, lead to either low verdicts or outright defense verdicts. All defense attorneys will tell you that such tactics are even more compelling in small to medium cases in which the plaintiff has not suffered an obvious catastrophic injury.
1. Defense attorneys know which cases to take to trial.
This may sound simple but it certainly makes sense. In cases with very sympathetic plaintiffs, absolute liability, and huge damages with low policy limits, the defense attorney is more tempted to instruct the carrier to settle. However, in small questionable liability or low damage cases, the defense attorney has no fear of trying the case. On her worst day she may face a $15,000 to $30,000 verdict, which is nothing to the insurance carrier. Therefore, the plaintiff’s lawyer must consider whether or not your case is the type that the defense will tell his carrier to take all the way to trial.
2. Defense counsel know that the weaknesses in the plaintiff’s case do not have to be extensive, as only one or two can destroy the plaintiff’s case in a small to medium claim.
The defense attorney only needs one or two weaknesses to destroy a small to medium case. Despite the fact that the plaintiff will have a number of “yes but’s” to every weakness, plaintiffs must understand that such weaknesses can literally bring about a zero verdict. Defense counsel know which weaknesses to select for their case and will use these against the plaintiff.
3. Defense attorneys know how to take advantage of the prevailing attitude about lawsuits.
This particular problem, reluctant juries, has been discussed and researched over and over by prominent members of the plaintiffs’ bar. The Association of Trial Lawyers of America has spent literally hundreds of thousands of dollars and much effort to research juror bias against plaintiffs.
Defense counsel know how to make even the most subtle of references to play upon the prevailing attitude against lawsuits. It may be a simple reference to the “lottery mentality” or a subtle reference to the “lawsuit crisis.”
4. Preparation is the key to successful defense tactics.
Defense firms have the resources, time, money, and staff to effectively prepare the defense to a small to medium case. While a plaintiff’s attorney must take his or her own time, money, and staff to prepare a case on a contingent basis, defense counsel do not have to worry about the downside risk. They will be paid by the hour no matter what happens and their expenses will likewise be paid. Therefore, they have little difficulty in engaging in extensive preparation for the case. Such preparation includes extensive research, excellent demonstrative evidence, obtaining both liability and damage witnesses, as well as extra time to prepare direct examination, cross examination, and closing statements.
5. Appealing to the jury with a very likeable personality is one of the most common elements of a successful defense attorney.
There may be a handful of aggressive and difficult defense attorneys but such attorneys are few and far between. The common element of most defense attorneys is their likability.
The Maine Trial Lawyers Association recently paid honor to one of the most successful defense attorneys in the state on his retirement. After 50 years of practice, this particular attorney was honored literally by several dinners. Despite the fact that this attorney had represented the most difficult carriers in the state, he received a standing ovation at every event that honored him. Both plaintiffs’ attorneys and defense counsel spoke at his banquets. Even the plaintiffs’ attorneys who had lost cases against him had nothing but good things to say about his civility and his personality. The most common comment about him, however, was his incredible ability to influence juries in the most difficult of cases. It is fair to say that almost every jury this man appeared in front of loved him.
Therefore, plaintiffs must remember that no matter how strong their case is a jury is going to have no problem in either finding for the defendant, or compromising the verdict because they like the defense attorney.
6. Defense attorneys can minimize verdicts through effective discovery.
Once a plaintiff files their lawsuit, they will be faced with a substantial amount of discovery, including interrogatories, requests for production of documents, and medical authorization forms that allow defense counsel to trace every element of the case. Weaknesses that might otherwise have been undisclosed will come floating to the top through the use of effective discovery. If there is a skeleton in the plaintiff’s closet, defense counsel will find it eventually.
7. Certain cliches and slogans used by plaintiffs’ attorneys can be used against the plaintiff effectively by intelligent defense counsel.
Because defense attorneys have tried so many cases, they have heard all the clichés, slogans, metaphors, and illustrations that accompany plaintiff’s cases. Therefore, they have learned effective rebuttals to such clichés. It is important for plaintiff’s lawyers to remember that when they use clichés off the cuff in a case, they may be dealt with in a fashion that could result in either a very low verdict or even a defense verdict.
8. Defense attorneys know how to provoke either plaintiffs or their attorneys to make mistakes.
Because defense counsel have had so much trial experience, they know which tactics can make either a plaintiff or his or her attorney turn the jury off. One of the most effective tactics is to get the plaintiffs’ attorney to become angry. When an attorney expresses anger to a jury, or shows the jury that their case has been weakened, the result is often a low verdict or defense verdict. Once the jury sees anger in the plaintiff’s attorney’s face or that of the plaintiff, they are likely to vote against the plaintiff.
9. Defense counsel know how to use the plaintiff’s own exhibits and demonstrative aids against the plaintiff’s case.
Needless to say, demonstrative aids and exhibits are very important to a plaintiff’s case. The problem is that because there are always two sides to every story and because of the very nature of such exhibits, defense counsel can use demonstrative aids and exhibits against the plaintiff.
In a recent mock trial, the plaintiffs’ attorney used a large colorful damage chart similar to the chart used to illustrate the different food groups. When defense counsel did his closing argument, he made one comment: “We’re not talking about food groups here. Plaintiffs’ attorney has pain and suffering as the largest element. How can the plaintiffs’ attorney compare pain and suffering to the most important food group on the chart? The most important food group is a fact known to everyone, while the plaintiff’s assertion that pain and suffering is the largest element of damage is merely a theory that has no merit.”
10. Defense counsel know how to use the so-called “accident or act of God” defense.
In virtually every personal injury case, the judge in his or her instructions will often indicate to the jury that just because an accident occurs does not mean that liability is obvious. Defense counsel know how to frame their argument to convince the jury that the particular incident may have been just a “accident” or act of God that occurred at the last second. Because some jurors believe that things happen by way of fate or an act of God, this defense often works.
11. Bringing spouses and other relatives to the courtroom often assists defense attorneys in creating sympathy for the defendant.
Despite the fact that defense counsel are hired by the carrier, they are smart enough to instruct the defendant to bring his or her spouse or relative to the court during the course of the trial. Jurors can be ¬sympathetic to such a tactic. For example, in one case, the defense counsel had the husband of an elderly defendant sit through the entire trial. Needless to say, this was a very effective tactic in creating sympathy on behalf of the defendant who had struck the plaintiff in a crosswalk.
12. Defense attorneys can change the perception of facts even if they cannot change the facts.
While a plaintiff may believe that liability is absolute in a certain case or that damages are obvious, defense attorneys can change the perception of the jury simply by using certain words, questions, or exhibits that shed doubt on the plaintiff’s position. In other words, they can cloud an issue that may be very clear to the plaintiff and his or her lawyer. Remember that how someone perceives a situation can be influenced by the person discussing that situation. In other words, the plaintiff can’t automatically assume that the jury is going to buy his or her version of how a certain fact occurred.
13. In most personal injury cases, defense counsel will select a trial by jury rather than a trial by a judge.
Defense counsel often indicate that they are more likely to get a low verdict or defense verdict from a jury in what may be a clear case than from a judge. For that reason, in some states, in almost every lawsuit brought, even if the plaintiff does not request a jury, defense counsel will not only request a jury but will also pay the jury trial fee, which can be several hundred dollars. The reason is obvious: They believe they have a better shot with a jury than they do with a judge.
14. Defense attorneys know how to turn exaggeration or overstating a case by the plaintiff to their advantage.
Over the course of trying many cases, defense attorneys learn that juries react to plaintiffs who either exaggerate or overstate their cases. Plaintiffs’ attorneys often seek a verdict that is higher than the case is worth for several reasons including the need to impress or advocate for the client, the desire to hit the ball out of the park with a huge verdict, and in some cases, simple greed. Even if it’s an innocent mistake where the attorney asks for twice or three times the value of the case because the client demands it, defense attorneys know how to turn the exaggeration or overstatement into a low or zero verdict. The defense attorneys essentially lie in wait hoping the plaintiff’s lawyer will ask the jury for an award that is so high that they will be offended.