A number of years ago, I began to look at jury trials from the rear to the front. By this I mean, I would analyze a case by first looking at jury instructions. Jury instructions are the instructions given by the judge at the end of the case. In these instructions, the judge instructs the jury as to the law.
For example, if the case involves a breach of contract claim, the judge
explains to the jury what a contract is and how it is formed. He explains what a breach of contract entails and he talks about the damages that are available if the jury finds that a breach took place. There are usually many other instructions given as well – covering a variety of general subjects.
Knowing how the judge is going to instruct the jury is helpful in determining what I would like to argue in my closing argument. The closing argument will then focus on one or more of the judge’s jury instructions. In that manner, the jury will not only hear my argument but will thereafter hear the judge’s instructions. In that fashion, the jury will see that my argument is reinforced by the judge’s instructions.
After envisioning my closing argument, I think about what evidence I need to get to support my closing argument. I will think about what witnesses I can find and what witnesses my opponent has already found. I look at each witness to see what evidence I can get from them
that supports my closing argument. This is the closing argument that is, in turn, supported by the jury instructions.
I then think about my opening statement. The opening statement tells the jury about the evidence. This is the same evidence that I will be presenting to support the closing argument that is supported by the jury instructions.
Some thought is then given to voir dire – the term that applies to the process of picking jurors. I think about the questions I will ask the jury panel that might give me the best panel to hear the opening statement that supports the evidence that supports the closing argument supported by the jury instructions.
Finally, I think about my theory of the case. I consider all of the evidence in doing so. This includes all of the documents, photographs, tangible items, physical evidence, audio tapes,
video tapes and the testimony of all available witnesses. I then try to break my theory of the case down into litigation themes. From there, I think of one or more slug lines – pithy statements that in just a few words describe my case. I do this to support the opening statement that supports the evidence that supports the closing argument that is supported by the jury instructions.
Trying cases from the rear – its not a bad way of doing things. It provides perspective and direction to someone trying a case to a jury.