By John DiMotto
If I have learned anything in my 35 years as a lawyer and judge, it is that one of the most important ingredients to success in litigation is lawyer credibility with the trier of fact. In a jury trial, it comes down to more than convincing the jury that your evidence is worthy of belief. You must convince the jury that they can believe YOU.
When a lawyer puts evidence before the jury, he/she is vouching for that evidence. If a lawyer wants the jury to accept it, the jury must have faith in the presenter. Juries can sense a "snake oil salesman" a mile away. While the standard Wisconsin jury instruction with respect to credibility focuses on the witnesses and the evidence, it is the lawyer who is the spokesperson, the standard bearer, for the witnesses and the evidence. This is not to say that form trumps substance. However, in most cases there is no "one answer only" when it comes to arriving at a decision regarding negligence or damages. The difference between a jury finding a plaintiff less negligent than a defendant oftentimes comes down to how convincing the plaintiff's lawyer can be in his/her analysis of the evidence. If the lawyer has no credibility, the client will have no credibility.
Lawyer credibility goes beyond just closing arguments. It permeates every aspect of the trial from voir dire, when the lawyer makes his/her first impression, from opening statement when the lawyer makes "promises" as to what he/she will prove, from the evidentiary phase when the lawyer delivers evidence, through closing argument when the lawyer tries to "connect the dots" that we call evidence. A lawyer must remember that he/she is the "face" for the case. As lawyer credibility goes so goes the case.
I have seen many a case "fail" because:
1) the lawyer was more into his/her aura than his/her cause.
2) the lawyer made such outrageous accusations/statements that you could visibly see the lawyer lose the jury.
3) the "greed" of the lawyer turned off the jury.
In the final analysis it comes down to being open, honest and, most importantly, reasonable in every aspect of the lawyer's presentation.