Gone to Trial

January 21st, 2018 By Catherine Hanna


Many of the issues we deal with as insurance lawyers involve legal questions decided by judges or fact questions that provide motivation for settlement. However, we do sometimes come across issues that cannot be resolved by the court or settlement and that is where I find myself today. Tomorrow, I will be in the courtroom asking a jury of six (we are in county court) to decide my client’s fate.

Trying a case can be fun, but it’s also a bit nerve-wracking. There are so many unpredictable factors. In Travis County, we don’t even know what judge will be presiding until shortly before trial. The even more unpredictable factor is the jury. When you take a case to trial you have generally lived with it for at least a year. You know it (or should know it) inside out. It can still be shocking to learn after the verdict that the jurors thought about the case in a way that you might never have considered.  There’s not much you can do about the unpredictable nature of the jury, though David has written quite eloquently about how to choose your jurors here, so let’s focus on what you can control.

Of course, each case is different, but my philosophy about the best way to try a case is quite simple. In fact, simplicity is the philosophy. Less is more. I think that is true of case themes and case presentation. It’s easy to get carried away with the bells and whistles of technology. We’re told that our jurors, many of whom are millennials and all of whom have grown up on a steady diet of Law and Order re-runs, will expect computer animations and flashy graphics, but I think those things can often take away from the simple theme of a case. Of course, we use the computer and snazzy presentations occasionally, but I try not to put the idea that we need something technologically sophisticated before the needs of the case. Sometimes, writing a chronology on a giant pad with a Sharpie is the best way to get a point across. (Or, at least I hope it is.)

In part, the less is more philosophy is designed to save me from myself. If I have to run any technology at all, there is a very good chance of something going wrong in front of the jury. Just ask my partner. Sometimes the water pitcher on the table is more than I can handle, so I am better off with the simpler things.

It is also important to pick and choose your trial exhibits. You could try the Marie Kondo method. Kondo advises that we should hold each belonging and ask ourselves whether it brings us joy. If it does not, we should discard it. In the context of trial exhibits, the question should probably be “Does this exhibit prove up a necessary element in my case that is not being proved up by another exhibit?” If not, think long and hard about whether you want to keep it.  Of course, you have to really know your case in order to productively apply this philosophy.

The less is more philosophy is also respectful of the jurors. Jury service is our civic responsibility and I have nerdy friends who were excited about the opportunity to serve on a jury. But even for the folks who relish the experience, actually serving on a jury can be trying. Driving downtown to the courthouse is hard, parking is a pain, and you are missing time from work and family. By simplifying the case, not calling redundant witnesses, and not fumbling with technology, we respect the jurors’ time.

So here I am on Sunday afternoon, having whittled my exhibits done to the bare minimum, with a fresh Sharpie in my trial bag, wondering what six citizens I get to meet bright and early tomorrow morning. There will be some butterflies. There are always butterflies, but I am ready for the fun to begin.