The shortest distance between two points is a straight line and it is no different when making an argument. Remember that while you have been eating, sleeping, and breathing the facts of your case for weeks, months, or years, the finder of fact has not and is either extremely busy such that they have not devoted the same amount of time to the case as you or is a lay person.
While there is no geographic distance in making an argument or presenting you case, you should still consider the amount you need to say and how you say it in getting your point across. Some of the best litigators can make the most complex arguments and positions in a short amount of time. They don’t do this be speaking at obnoxiously fast pace (although I am pretty sure every litigator has been asked to slow down at one point in their career) but rather by making every word count and not giving any extraneous information. This is a lot easier than it sounds but anyone that has ever had a bad college or law school professor understands how difficult it is to understand something from someone that cannot be concise.
WHEN YOU LITIGATE, YOU TEACH
When you are litigating a case, whether it be an argument on a motion, presenting evidence to a jury, or even speaking with a mediator, you are teaching that person or people about your case. You need to be the authority on all things law or fact depending on the forum at hand. Jurors especially have no idea what is going on and you need to be particularly careful when presenting evidence to them. It can be easy to confuse a juror—that is being forced to be there and may have concerns outside of your case—when you go into extraneous detail.
In much the same way a lecture on geometry should not go into algebra, you should not seek to stray too far from the topic at hand. In my math example, it may be necessary to explain some algebra when teaching geometry but going into the entirety of algebra would not only be a waste of everyone’s time but would confuse those that only need to know geometry. In law, it may be necessary to explain, for example, a past series of dealings between your client and the other party, but going into too much detail on those past dealing can convolute the case at hand and cause even the most studious juror to become confused.
There is a fine line to this and it is more of art that a science. It is a type of Goldilocks Principal where you need to give enough information to get you from point A to point B but not so much information that you take the scenic route to points C, D, E, and F. Every case and argument is different so there is no hard and fast rule on how much detail to go into, but even considering the appropriate amount will help you in presenting your case.
FINDERS OF FACT OFTEN LATCH ONTO SOMETHING YOU NEVER EVEN CONSIDER
At our firm we like to have mock juries before we go to trial. One of the most interesting things we find about mock juries is that they always latch onto something that you never thought about or considered as a critical point. I am not saying that my colleagues or I are missing critical facts about our own cases but rather that juries think of things in a different way than a group of people that have been analyzing every little claim and fact for years. For better or for worse this is our judicial system and you need to adapt and know how to handle this issue.
The things that come up that we never would have considered often deal with extraneous facts that are given as background or to explain something. This is why it becomes important to be concise and not take the scenic route when litigating. It is easy to want to explain every little thing about a case because you think all of the facts help you and your client is right. Rather, the straightest path to the end is the easiest for any finder of fact to follow.
In one case our firm handled, a jury took it upon themselves to issue a set-off without any instruction from the judge and no evidence being presented by the defendants about a potential set-off. Rather, it seems, the jury got the idea based on the presentation of the facts where the fraud was described in step-by-step detail. While there was no way to avoid the necessary plodding and presenting of evidence in that case, it goes to show that jurors think of things that you would never think that they would consider.
When presenting evidence to any finder of fact, don’t take the scenic route and give them fact finder the easiest path to deciding in your favor.
When Presenting To A Finder Of Fact, Avoid The Scenic Route curated from Above the Law
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