David Groth handles subrogation and recovery claims in the Eastern United States for the law firm of Cozen O'Connor. Below are his top 10 tips for presenting the best case to a jury, culled from his more than 20 years of trying subrogation cases.

1. Make the Jury Want to “Right a Wrong”

This suggestion is admittedly borrowed from the noted and acclaimed trial advocacy lecturer, Professor James McElhenny. In order to do this, the jury must be convinced that the defendant has actually — not possibly or theoretically — done something wrong, which harmed your client or insured.

Our cases consistently lack the type of jury appeal or sympathy that might make a jury more likely to want to find in our client's favor. The jury must be convinced that your version of the “story” is right, that the defendant's version is wrong, and that the defendant's wrongful conduct justifies awarding whatever monetary damages are claimed.

2. The “Preponderance of the Evidence” Burden of Proof in a Subrogation Case Is a Myth

What do you call it when a jury is convinced 51 percent to 49 percent in favor of the plaintiff in a subrogation action? A defense verdict.

This is related to the “right a wrong” premise. A jury generally will not be comfortable awarding a plaintiff a large sum of money unless it is truly convinced that the defendant has actually done something wrong that has harmed the plaintiff; maybe not by the criminal burden-of-proof standard of “beyond a reasonable doubt,” but certainly well beyond the 51 percent preponderance-of-evidence standard.

In product liability cases, in particular, it often is not enough if a jury concludes that the allegedly defective product probably or more likely than not caused the loss. Hence, the lack of trial success with the malfunction theory in liability cases. Great in theory, far from great in reality.

3. Be a Persuasive, Interesting Storyteller

Did you ever go to a cocktail party and listen to someone get two minutes into an apparently long story, only to feel your eyes begin to glaze over, your ears start to bleed, and your body feel trapped, needing to escape the unending torture still to come? That is how the jury collectively feels if you do not command their attention by presenting an understandable, interesting story that gets to the point.

If you are not a naturally gifted storyteller, learn how to be one by taking continuing legal education courses or by consulting the National Institute for Trial Advocacy. Consider yourself a screenwriter of non-fiction who uses factual witness testimonies, exhibits, and expert opinions to tell the story. Just because your story is not fiction does not mean that you cannot be creative in your approach to telling it.

Anyone can figure out how to get a set of disjointed facts into evidence at trial in order to meet your basic burden of proof on liability and damage issues. Your job is to figure out the most compelling way to present your case. That could include establishing a chronology of events or calling the defendant's employees as your first witnesses on cross-examination so that you can ask leading questions and, in effect, become your own best witness.

Brevity, in general, is the key. Don't use five exhibits when one will suffice, get to the point quickly, and make sure the testimony is cumulative.

4. Make Sure Your Experts Speak “English”

A technical expert's report is written to impress defense counsel and his experts with a view toward getting the case settled. An expert whose testimony at trial consists of the same type of complex, technical jargon and analysis more than likely will confuse, bore, and eventually alienate the jury as a result of the frustration generated by their inability to comprehend the expert's explanation of his opinions.

While you should not underestimate the ability of the jury to understand some technical material, your job is to make sure that the evidence is presented by your experts in a way that is logical, understandable, and persuasive to the average juror. The use of analogies by an expert to relate technical concepts to every day activities, experiences, or general knowledge of a lay person is often very helpful. Some examples include comparing the flow of electrical current to the flow of water through a hose or commenting that the temperature needed to melt aluminum is more than twice the highest temperature setting in a kitchen oven.

5. You Cannot Preclude Opposing Counsel from Putting on a Defense

Never believe that you can find some way to keep out of evidence all of the defense's fact testimony, exhibits, and expert opinions. As a practical matter, most trial judges will err on the side of inclusion, not exclusion. The time you spend trying to figure out ways to prevent defense counsel from putting on his case could be better spent analyzing and preparing to deal with the known adverse testimony, expert opinions, and physical evidence in order to minimize their impact.

6. Google Fact and Expert Witnesses Before Trial

If there is any suspicion whatsoever about a witness' educational, employment, or criminal history, Google him as a quick, inexpensive way to obtain ammunition for your cross-examination of the witness or to attempt to preclude him from testifying at all.

7. Find a Way to Make the Trial Judge Your New Best Friend

In some jurisdictions, you may have only limited, or even no contact, with the trial judge before jury selection. Find out how the judge likes to run his courtroom from his published rules or by questioning the courtroom staff.

Use your professionalism, preparation, and perseverance to impress the trial judge. Winning over the judge also will yield benefits in the event that you win the trial and the verdict is appealed. It is much easier for a judge to support his ruling in your client's favor during post-trial motions if the judge is favorably impressed with your conduct, competence, and respectfulness during the trial.

8. Never Believe Your Case Is Going to Settle Before Trial

No matter how good you think your case is, how close the settlement positions are, or what opposing counsel says, promises, or implies, convince yourself that the case is not going to settle. Counting on the settlement of a case before trial will adversely affect your focus and trial preparation.

It is only human nature to procrastinate or avoid doing the hard work that needs to be done if you conclude that the work won't be necessary because the case will never get to trial. Even if this happens, you will probably not be as prepared for trial as you should have been, and therefore, you will be more willing to accept or recommend to your client a settlement offer which does not reflect the true, objective value of the case.

9. Make Sure There Is No Down Time

All witnesses must be present, properly prepared, and ready to testify when needed at trial. All exhibits should be pre-marked and ready to use.

Jury boredom can be lethal to your case, especially if you are putting on the majority of witnesses during the first few days of the trial. Do not make the mistake of believing that there will be time during the trial to discuss issues, strategies, and logistics with co-counsel, opposing counsel, or your own client. There probably won't be.

10. Never Make the Same Mistake Twice

Each trial is a learning experience. You will learn much more from your mistakes than you will from your successes. Consider making a running list of your mistakes, which you can review before your next trial and use to decide how to present your case more effectively.

David Groth is a partner in Cozen O'Connor's Subrogation and Recovery Group. He can be reached at dgroth@cozen.com.

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Ten Tips for Subrogation Success

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