The Missing Link: Connecting Key Evidence to the Jurors

WHEN we speak, we hope to be heard and understood. When trial lawyers speak, they hope to be heard and understood, but they also hope to persuade. Unfortunately, too often in the course of a trial, attorneys let opportunities to persuade jurors pass them by. They present crucial case information, trying to use clear easy-to-understand language in a dramatic and memorable way, but jurors are unmoved. Why? Often, the problem does not involve language, presentation, or style, but "the link." There is a missing link for jurors. Information is laid out in front of them, but its relevance is never made clear to them. Or worse, the information is simply never going to be relevant to them, no matter how artfully it is presented.

On one hand, attorneys are presenting what they believe is important and relevant information. On the other hand, jurors who have their own ideas about what is important - are scratching their heads and wondering why the lawyers are discussing a particular topic, trying desperately to discern the point that lawyers are trying to make. Ultimately, jurors wonder why lawyers are wasting their time.

Three Inaccurate Assumptions that Lead to the Missing Link

Why does this missing link occur so often at trial? Attorneys make three inaccurate assumptions about jurors. First, attorneys assume that the most important case issue for them will also be the most important case issue for jurors. For example, in some corporate conspiracy cases (where a small company claims it was victimized by a conspiracy at a larger company), defense attorneys often assume that jurors will be most concerned with whether a conspiracy actually existed inside the larger company. Based on this assumption, attorneys focus on evidence about the lack of motive or the absence of meetings between alleged conspirators. Attorneys even put together detailed timelines to make it easy for jurors to understand that alleged conspirators would not have been able to meet, but often jurors remain unmoved, primarily because whether a conspiracy technically existed is not the most important case issue for them; they usually just want to know whether the small company was treated fairly and whether a pattern of bad or abusive conduct on the part of the large company exists.

Second, attorneys assume that evidence they believe is relevant will be equally relevant to jurors. For example, tutorials about the technology involved in a patent dispute often fall into this category. Attorneys see these tutorials as highly relevant and ironically, in post-trial interviews, jurors often say they enjoyed the tutorials and found them helpful. Jury research reveals that jurors rarely use this information to decide whether there was infringement or invalidity. Instead, their infringement decisions are usually based on whether there are simple commonsense differences between the patented technology and the allegedly infringing technology, not on an educated understanding of the nuts and bolts of the technology.

Third, attorneys assume that jurors will connect the dots on their own - that jurors will accurately link key evidence to their verdict decisions. While the link may be obvious to the trial team, jurors cannot always be counted on to see the immediate relevance of evidence presented during a trial. A significant portion of expert witness testimony unfortunately falls into this category. Experts frequently delve into the minutiae of a case without telling jurors why these details are important to their ultimate decisions. For example, an expert in a medical malpractice case might give jurors a commonsense, easily understood explanation of how the liver works. Jurors may understand the testimony, but have no idea how they are supposed to use the information to make a verdict decision about whether the defendant hospital was negligent. It is not a failure of understanding; it is a failure of linking. As a general rule, jurors aren't lazy, but they often don't appreciate why a particular piece of information is important for them to remember and use. It is up to the trial team to do the hard work of creating clear links for jurors.

The Most Important Step

The most important step in linking is to identify what the jurors perceive as the central issue in the case. What is the issue or issues on which jurors are most likely to base their verdict decision? Is the central issue whether the company adequately warned consumers about its product? Is it why the company failed to pay the plaintiffs insurance claim immediately? Is it providing a clear alternative explanation for why a particular accident happened? Accurately determining what jurors will see as the central issue is more than half the battle, and identifying that central issue is almost always the result of an implicit (past case experience or general experience with people) or explicit (jury research) empirical process. In other words, spotting the central issue does not happen by accident. It is the result of hard work and study that is focused on respecting the things jurors care about. The trick, however, is that even after you are convinced that you have identified the central issue for jurors, you still must take great pains to ensure that you are presenting evidence that jurors will find relevant to their evaluation of that issue; you must be sure the evidence you present is clearly linked to jurors' assessment of the case.

The Missing Link

Our interviews with numerous real and surrogate jurors suggest that much of the information presented at trials falls by the wayside. Jurors, forced to sift through a mound of information for a few relevant kernels, frequently find kernels they like and then ignore or discard additional information. Thus, a five-week trial on a patent's validity ends up being decided solely on the fact that the Patent Office granted a patent to the plaintiff or a three-month patent infringement trial ends up being decided on the fact that the drawings of the products at issue had some minor differences. The rest of the evidence that attorneys took great pains to present is simply lost on jurors. During post-trial jury interviews, we often seek jurors' reaction to issues and evidence that were central to the trial team, only to learn that jurors either have no memory of this evidence or concluded that it just wasn't important.

Surely no one sets out to be ignored or misunderstood, so why does such serious miscommunication occur? There are three basic reasons for the miscommunication:

1. Trials Do Not Present Facts Chronologically

Trials are an odd way for jurors to obtain information. Facts comes to them bit-by-bit in an awkward question-and-answer format that bears no resemblance to how they consume information in their daily lives. The practicalities of trial also frequently result in information being presented to jurors out of sequence. For jurors, it is like reading a novel by starting in the middle, then skipping to the end, then jumping to the beginning. The information is all there, but jurors don't always know what to do with it. The trial process is long on information and short on context, and it is challenging to make sure that jurors realize why you are making particular points and how those points should play into their verdict decisions.

One of the main reasons we recommend that trial teams develop and deliver an overall "story" of the case and then reinforce that story throughout the trial is to ensure that jurors have a clear context, a framework for organizing all of the scattered bits of information they receive throughout trial. Without such a framework, jurors have no logical way to store information, no way to link incoming information to other case facts and no clear way to use this information when they are making their verdict decisions. A good trial story becomes a "net" that jurors use to catch and organize case information.

2. Attorneys Are Too Close to the Case For Too Long

Trial teams often have years to learn every nuance of a case. As helpful as this encyclopedic knowledge can be, it can also handicap attorneys when they are preparing for trial. Attorneys know the whole story, so they clearly understand how each key fact fits into the overall story. It becomes easy for attorneys to assume that jurors will know where these facts fit in, as well, but jurors are hearing the story for the first time. Facts that seem crucial and obviously relevant to the trial team may fly right past jurors. In fact, during pre-trial jury research or when "shadow jurors" are sitting in and watching actual trials, trial lawyers are often surprised to learn that these jurors completely missed a point that was made several times.

A lawyer's long relationship with a case makes it difficult to see the case through the jury's naïve eyes, but a trial lawyer must try to view the case from a juror's perspective in order to deliver an effective trial story. The trial lawyer simply cannot assume that the relevance of a particular fact will be obvious to jurors just because it is obvious to the trial team.

3. Attorneys Make Incorrect Assumptions

Sometimes attorneys make a guess about what information will be central to jurors' decisions in a case, and they are just plain wrong. Even the most experienced attorneys can make incorrect assumptions because the issues jurors see as central to a case are not always intuitive. Unfortunately, these wrong guesses often go unchallenged by other members of the trial team. Sometimes, the trial team has bought into the same theory of the case, so they are as invested in it as lead counsel, but other times, people are reluctant to tell senior trial lawyers that they are wrong. This scenario can be particularly difficult when the person is not prepared to provide a better solution.

When you have guessed incorrectly, this leads to a situation in which you may be clearly drawing links for jurors, but you are linking issues and facts that the jury does not see as central to the case. It is a "two ships passing in the night" situation, and it can be incredibly frustrating to interview a jury post-trial to learn that they understood your position but saw it as irrelevant to their verdict.

Faced with a mountain of information and some serious communication roadblocks, how can a trial team decide what evidence to present to a jury? How can you determine what evidence will be viewed as relevant, and how can you ensure that relevant evidence is not lost on jurors? Ultimately, it all boils down to making sound strategic decisions about what is important to jurors and then working hard to ensure that these points are not lost on jurors; however, this process is harder than it looks and there are more ways to get it wrong than to get it right. Attorneys make three common errors: (1) Attorneys try to link information that jurors see as irrelevant; (2) Attorneys fail to link information that jurors might see as highly relevant; and (3) Attorneys "toss in" evidence that the trial team actually suspects is not directly relevant to central case issues just to see if it might stick with a few jurors.

Trying to Link the Irrelevant

Trying to link the irrelevant is a situation in which the trial team makes a clear effort to show jurors how certain evidence is relevant to their decision, but jurors never accept or agree that the evidence is relevant. Linking the irrelevant typically occurs when the trial team misunderstands what is really important to jurors' decision-making in a particular case and/or the trial team underestimates jurors and assumes that their verdict decision can be influenced by evidence that is clearly not related to the issue being litigated. In the latter case, jurors may not only be offended, they may also conclude the defense team is reluctant to deal head-on with the truly important issues that are in dispute in the case. A classic example of trying to link the irrelevant occurs when defense counsel spends an undue amount of time trying to tout the solid reputation and good works of the defendant company. We routinely hear defense counsel point out that the defendant company injects a great deal of money into the local community, has been a respected pillar of the community for years, provides needed services to the public, or makes products on which we all depend. For jurors, the effort at linking is clear. They understand that defense counsel is trying to get jurors to identify with the company and to appreciate the company's critical and positive role in the community. Unfortunately, these types of arguments are rarely linked to the key issues in the case, and in fact, many jurors actually perceive such arguments as the defendant's efforts to avoid the key issues in the case. It would be a stretch to say that jurors' perspective of a particular case is not influenced by a company's reputation; however, the key is that efforts to build this reputation from scratch during trial are rarely successful and normally very difficult to link to central case issues.

Another example of attempting to link the irrelevant arises when the defense team attacks some personal characteristic of the plaintiff. This happened in a large medical malpractice case where a hospital was being sued over the quality of care it provided to a lifelong alcoholic who was brought to the ER for injuries he suffered from a drunken fall. The plaintiffs pointed to the simple fact that the hospital had failed to do a CT that would have readily identified the hematoma that ultimately led to a serious brain injury. The defense's approach was to attack the plaintiff at several levels. First, the accident was his fault because he was so drunk; any delay in treatment was his family's fault because they failed to bring him to the ER in a timely manner; and most of the injuries this man suffered could be linked to his life of alcohol abuse and not to the actions of the hospital. Jurors not only rejected the attacks on the plaintiff as irrelevant to the case, the attacks actually incensed them. Jurors saw the central issue in this case as the quality of care provided by the hospital, and evidence of the plaintiffs personal flaws were largely irrelevant to this issue. In fact, jurors openly stated that the defense's efforts to link the plaintiffs serious personal problems to the case demonstrated that the defense was incapable of defending the most important issue, the quality of care.

We interviewed jurors in a case where the plaintiff attorney was claiming an industrial plant (our client) injured his clients during a fire at the plant. One strategy adopted by the plaintiff lawyer was to spend an inordinate amount of time focusing on prior and subsequent incidents at the plant that were completely unrelated to the injuries suffered by his clients. Jurors were almost unanimous that this strategy was tiresome and ineffective as it demonstrated that the plaintiff lawyer did not want to talk about his clients and their particular injuries. In fact, the plaintiff lawyer's reluctance to focus on his own clients sent a clear message to this jury that he wasn't confident in their particular cases and was hoping to secure a verdict based on the anger he could develop toward the industrial plant. It is always important to remind ourselves that jurors are paying attention to the strategy you adopt. Efforts to link irrelevant information is particularly risky because it doesn't just waste jurors' time, it can send a very clear message about what you think of your client and your case.

The Litmus Test for Relevance

How can you discern whether jurors will see information as irrelevant? Ultimately, that is an empirical question, but there are a few basic tests. The first and most important test is whether this evidence speaks directly to a central issue for jurors. With each key piece or area of evidence you must ask yourself how this information is directly related to the decision jurors are being asked to make. Additionally, when you present this evidence, are you affirmatively linking it to the decision that jurors are being asked to reach and are you actually able to draw a sensible link for them? Company reputation usually fails this test because it is rarely directly related to the particular decision jurors are being asked to make. The company's general behavior may be quite laudable, but it tends not to be particularly informative as jurors evaluate whether the company's product harmed someone or whether the company broke a contract. Jurors understand that even good companies who contribute a great deal to the community can behave poorly at times or make products that might harm someone.

Second, if you (or your expert) must work really hard to draw a connection between the evidence and the conclusion you want jurors to reach, you may have stumbled upon evidence that jurors will be less likely to see as relevant (even though the "take-away" point might actually be relevant). For example, in an airplane crash case, a defense expert spent a great deal of time discussing the difference between "needle slap" and "needle impact" on the plane's airspeed monitor, then tried to link this issue to airspeed, and then tried to link airspeed to the cause of the crash. It was a long and winding road that jurors were not willing to follow him down. Jurors just didn't see the relevance of all of this complex detail being delivered by the expert. The critical point from this expert was air speed contributed to the crash, and the link between air speed and the crash could be demonstrated in several ways - one of them being "needle slap." The trial team needed corroboration for its theory that air speed contributed to the crash; it didn't need to bog jurors down in hours of detail to make this point. You must analyze how hard you are asking jurors to work to understand your point. It is often the case that you or your expert can provide jurors with the critical conclusion (or link) you want them to understand without asking them to understand every step in between.

A third test is whether this information fits with jurors' common sense. Air modeling evidence for example, with its discrete "pockets" of chemical concentration that conveniently avoid plaintiffs doesn't fit with jurors' commonsense understanding of how air moves. Similarly, human factors evidence - with its specific human reaction times - often doesn't fit with jurors' belief that everyone reacts differently.

A fourth and related test is whether the evidence is being used to argue that bad behavior was harmless or should at least be ignored in this case. Some arguments simply come off as too convenient and self-serving to ever have a great deal of credibility. Thus, with the air modeling example, this evidence is usually naturally paired with a company's release of potentially toxic chemicals. Jurors see the defendant as conveniently using this scientific theory to demonstrate that its bad behavior did not harm the plaintiffs. Again, the defense team must ask itself, "Am I asking jurors to believe something that is both counter to common sense and too conveniently beneficial to my position?" The combination of evidence being incredibly self-serving yet contrary to common sense prevents jurors from seeing this type of evidence as helpful to the decision they must make.

Failing to Link the Relevant

Failing to link the relevant occurs when the trial team presents information that jurors might see as relevant, but the relevance of this information is never made clear to them. Failing to link what would otherwise be relevant information is a serious and unfortunately frequent problem at trial. The trial team or witness may even believe that a point has been clearly made, but jurors seem to either miss the point or more commonly - never connect that point to their final verdict. It is a problem that also plagues experts, who often assume that jurors will know how to use their brilliant testimony.

"But I told them that!" Failing to link the relevant often occurs because key information is buried in a mountain of facts. The key information is contained in the presentation but it either isn't emphasized or it is never clearly connected to jurors' verdict decisions. This "burial effect" happened in a medical malpractice case where the defense was trying to show jurors that the hospital and doctor could not have been the cause of the plaintiffs injury. The woman had a kidney injury that she was blaming on the radioactive contrast material used in diagnostic tests conducted at the hospital. During jury research, the defense presented a great deal of information about how the kidney normally worked, and within this extensive presentation, made the point that the woman's kidney injury was not located in the part of the kidney that can be damaged by radioactive contrast. This critical and commonsense defense point was completely missed by every single juror. It was lost in the shuffle, buried under so much information that jurors were either tuned out or simply didn't recognize its importance.

This medical malpractice case provides a straightforward example of how unloading large amounts of information, even important information, can easily overwhelm jurors and interfere with their ability to glean the "big takeaway" from the presentation. We can never assume that jurors know what information is most important and why. Thus, the trial team must explicitly show jurors the information that is critical for them to know along with an explanation for why that information is so important to their verdict decision. For practical purposes, what does this mean you need to do? You must distill the take-away messages in your case; present these messages explicitly as early as possible, and then ensure that your entire case presentation clearly links back to one of these messages. One seasoned defense lawyer with whom we worked achieved this goal by literally asking the jurors, "Now why is what I am saying so important to your decision?" in connection with every piece of critical evidence he presented. In fact, we were able to test the importance of every point in that particular case by asking ourselves whether we could give jurors an answer to the question: "Why is what I am saying so important to your decision?" By asking this simple question before we went to trial, we were able to greatly simplify our messages at trial while ensuring that the evidence that was presented was clearly linked to the ultimate question in the case.

A few key graphics with clear takeaway messages can also help jurors make the link. For example, in the kidney case just described, jurors responded well to a simple graphic of the kidney (titled: Mrs. X's Kidney Damage is in the Wrong Place) that clearly showed the woman's injury was not located where radioactive contrast causes injury. Rather than burying jurors in the detail of kidney function, this simple graphic delivered a point that was directly relevant to jurors' causation decision. It is important to remember, however, that too many visuals can easily overwhelm jurors, as well. The point is to use visuals strategically; use them to cut through the noise of trial rather than to add further confusion. Use visuals to deliver evidence that clearly supports a key message and to connect this message to jurors' verdict decisions. For example, in many insurance bad faith cases, jurors are highly concerned about the insurance company's delay in paying the plaintiffs claim. In these cases, a simple timeline graphic (e.g., We Made Good Faith Efforts to Resolve this Claim) showing the efforts the insurance company was making to resolve the claim during the delay period can go a long way toward assuring jurors that the insurance company was not acting in bad faith. Certainly, these kinds of graphics are not possible in every case, but the trial team must look for opportunities to show jurors how evidence is linked to a key case issue.

We often find during jury research that jurors do not know what to do with evidence or how certain evidence should help them resolve an issue. Unfortunately, when jurors do not understand how to link certain evidence to their decision, the damage often goes far beyond their inability to understand what you see as a key point; it can also directly sabotage your position in the case. This sabotaging effect is one we routinely see in bad faith cases. In one bad faith case we tested, the dispute arose over whether the defendant company acted in bad faith when it decided not to pay UIM to a man on the grounds that he was not "occupying" the vehicle at the time of the accident. The problem for jurors arose because the man was actually struck by the insured vehicle and jurors could not understand why the insurance company wouldn't automatically be liable - in other words why did it matter whether the plaintiff was occupying the vehicle. While there was absolutely no dispute that determining whether the man was "occupying" the vehicle was the issue that created the controversy between the parties, the jury research showed that jurors saw all the evidence about the man's position and his intent to get back into the insured vehicle as irrelevant. In fact, it was not only unlinked to their decision, but the debate about the man's position and intent caused jurors to see the insurance company as calloused and clueless about its obligations. Thus, before jurors would entertain any of the evidence about whether the man was "occupying" the vehicle, they first needed to understand why that particular debate mattered. Why was the defense engaging in a discussion and analysis of whether plaintiff truly "occupied" the vehicle? Unless you tell jurors how and why particular information is being presented and why it is directly relevant to the ultimate decision they must reach, you cannot assume they will understand why it is relevant or will use it the way you want them to use it.

The task for the trial team is to never assume that jurors will automatically appreciate that information is critical for their decisions just because you are taking the time to present it. It is almost inevitable that as trial teams live with a case for an extended period of time they begin to forget what it was like when they were first learning the nuances of the dispute. It is important to challenge one's assumptions about whether certain evidence is obviously linked to jurors' decision process, and this is best accomplished by testing one's presentation with a naïve audience whether informally or through jury research. It is imperative that you put yourself in jurors' shoes as you evaluate whether certain information will really be as intuitively linked to key issues in the case.

No Link - No Relevance

No Link - No relevance describes a situation in which the trial team simply throws information out to jurors, often in the hope that this information will "stick" to something important. There is no attempt to determine whether jurors will see the information as relevant, (in fact, many trial teams realize the information is not relevant when they introduce it) and there is no attempt to link it to jurors' verdict decisions. This situation occurs surprisingly often at trial - defense attorneys casually mention that the plaintiff has fathered ten children out of wedlock and doesn't pay any child support, or that the plaintiff has already made a lot of money from the company he is suing, or they spend hours discussing background information that is at best peripherally related to the issue in the case. The rationales for presenting this information vary (e.g., "it will make jurors dislike the plaintiff" or "it will show jurors that I understand the technology/the medicine that is at issue" or "jurors need this background to understand the case"), but the fact that attorneys have a rationale certainly doesn't make the information relevant to jurors.

An example of this situation occurred in a "bad baby" case where the attorney defending the hospital presented jurors with a box of medical instruments used in a C-section and proceeded to describe each instrument in detail. The rationale behind this presentation was to show jurors that the attorney understood the medicine and to make them comfortable with the tools of the trade. Jurors saw the entire presentation as a waste of their time, and - even worse - they felt that it delayed the defense from answering the serious questions they had about the quality of care the hospital had provided to the plaintiff. Frequently, jurors tell us during jury research and in post-trial interviews that the trial team spent way too much time teaching and not enough time persuading. Such a conclusion is certainly the risk you take when information is presented that has no link and no relevance.

Another recurring no link - no relevance defense argument is that the plaintiffs "have already been paid enough money." For example, we have seen numerous stock option cases in which the plaintiffs were young and had already been paid millions for their options. The plaintiffs had then come to court claiming they were either cheated out of options, underpaid for their options, or entitled to more options than they had already received. One argument that consistently surfaced from the defendant companies was that the plaintiffs were already rich and now were just being greedy. This argument sounded good on the surface and it certainly made the defendant company feel righteous, but testing this argument with mock jurors revealed its fatal flaw. It did not address jurors' central concern in these cases as to whether the employees actually have a right to more options or more money. In other words, had the employees been treated fairly by their employer? After all, jurors reasoned, even a greedy employee could be treated unfairly. Ironically, by focusing on the plaintiffs alleged greed, the defendant company was sometimes perceived by jurors as the kind of uncaring employer that would try to underpay its employees. Thus, far from being an effective defense strategy, this approach sometimes leads jurors to believe that the plaintiff is more likely to have been cheated.

Efforts to personally attack the plaintiff also fall into the category of no link - no relevance. Frankly, it is difficult to ever make personal attacks on the plaintiff relevant to jurors' verdict decisions, and if these attacks cannot be truly linked to key issues in the case, the most predictable outcome is that the information will actually offend jurors. For example, a worker was suing after he allegedly suffered severe physical and emotional injuries from a serious fall that he survived but which killed his coworker. During the defense presentation during the jury research, it was pointed out that this worker had fathered numerous children and had failed to pay child support. The hope from the defense team was that this information would make jurors dislike the plaintiff, and many jurors did dislike the plaintiff. They criticized him heavily and then without breaking stride, they awarded him large compensatory and punitive damages. Jurors went on to lambaste the defendant for its decision to include this negative and irrelevant personal information about the plaintiff. They pointed out that this information had nothing to do with the central issues in the case - workplace safety and the nature of the man's injuries - and many noted that this information made them believe the defendant had no substantive evidence to address the real case issues. The plaintiff's efforts at prolific procreation clearly made jurors dislike him, but they disliked the defendant more for bringing out this irrelevant information.

One of the best ways to determine whether case information falls in the no link-no relevance category is whether you have any hesitation about telling jurors exactly why that information is relevant to their verdict decisions. For example, if you can't tell jurors exactly why knowing that the plaintiff has worked as a stripper is relevant to their decisions in the case, that information should be eliminated from the testimony. Additionally, it is important to critically evaluate your rationale for including information. If your only rationale is to make jurors dislike the plaintiff, or to make the plaintiff appear greedy or even "to let jurors draw their own conclusions," then that information is at best irrelevant and at worst potentially damaging to the defense.

Linking the Relevant

Obviously, the ideal situation at trial is for the trial team to be clearly linking relevant information to the jury's verdict decision. Linking the relevant is achieved any time you deliver evidence that jurors agree is relevant to their decision, and this evidence is delivered in a way that makes its relevance and importance clear. Achieving this goal means you first understand what jurors believe is relevant and, as already noted, this isn't always intuitive. It requires respect - respect for what jurors see as the most important or central issues in the case. No matter what you may believe to be the key issue in the case, ultimately what matters is what jurors find to be the key issue. Trial teams may not agree with jurors, but they disagree at their peril. Thus, by respecting jurors and what is important to jurors, it actually becomes easier to present relevant arguments that are then linked to jurors' verdict decisions.

Linking the relevant also means avoiding the temptation to present information simply because it is available. In many ways, being effective at trial is no different than being a movie director who shoots hours and hours of film only to leave most of it on the cutting room floor. No doubt making cuts requires hard choices, and it also demands that scenes once viewed as crucial get completely dropped from the film. But this is exactly what is required to tell a good story and to ensure that story comes together as a relevant and clear whole.

The defense of a large employee downsizing case provided an excellent example of a trial team that respected jurors' opinions and values and was willing to take the time and effort to sift through a great deal of evidence to present only those things jurors really cared about. In this particular case, during the discovery process, the defense team had obtained detailed statistical analyses demonstrating there was no age discrimination, gathered testimony to support the idea that the downsizing was necessary and could not have been avoided, and obtained witnesses to defend the fairness of the employee evaluation system. Through jury research, the team learned that jurors cared very little about any of these issues. Instead, jurors were much more focused on whether the employees had received clear notice of the downsizing, had been given an opportunity to demonstrate why they should keep their positions, whether the best people for the job actually won the positions remaining, and how well the employees who lost their jobs were treated. Although it wasn't easy to discard or downplay certain evidence that had been diligently gathered during discovery, by taking the time to respect what jurors cared about in this case, the trial team was able to present truly relevant information that was directly linked to the verdict decision jurors would have to make.

Where do you go from here? The most effective strategy any trial team can adopt is to carry the Socratic method so readily used in law school into the law firm. Trial teams must invite and encourage tough questions about the trial strategy being developed, and they should answer any questions posed by first moving themselves into the shoes of future jurors. Ask why you are developing a particular line of evidence. How will this message get to the jury? How will I link this evidence to the issue jurors are being asked to decide? Am I reluctant to draw a link between particular information and the issue to be decided? Will this line of argument delay the presentation of information that is more central to jurors' decision-process? Will jurors view this evidence as contrary to common sense and/or as being too self-serving to be credible? Will jurors understand how to use the key information presented? You should assume that jurors will not.

Finding the missing link is not always easy, but it is an effort that is guaranteed to sharpen every trial teams' ongoing development of a case, and it is sure to lead to a trial presentation that clearly lets jurors know where you stand.