When Roger Oatley first started practicing, the revered litigators of the time touted a standard message: being a good trial lawyer was an art that some had, and some didn’t. But when Oatley, who represented a deserving plaintiff in a jury trial, was disappointed in the result, he was motivated to prove that this message was a misleading myth.
“I soaked up everything I could find to read, went to every course I could find in North America – most of them in the US – and low and behold, I started winning jury trials one after the other,” Oatley, retired founding partner of Oatley Vigmond Personal Injury Lawyers LLP and current principal at Oatley Law where he provides consultancy and advisory services, recalls. “In the last 30 years of practice, I never lost a trial.”
What Oatley came to believe is that being an effective trial lawyer comes down to a collection of skills that anybody can learn — if they’re prepared to take the time to do so. To that end, Oatley penned Addressing the Jury, a first of its kind Canadian-focused guide on advocacy in civil jury trials. Committed to continuous elevation of the standards of the personal injury bar, for the most recent third iteration Oatley joined forces with Troy Lehman, partner at Oatley Vigmond. Lehman notes that what the book strives to do — delve deeply into how jurors make decisions — is “something that’s not taught in law school.”
“The purpose is to help all lawyers, both plaintiff- and defence-side, better understand what motivates jurors to make decisions and to tailor their case to take advantage of those motivators. That’s the key to success in jury trials.”
Practical guidance for common mistakes
For Lehman, the biggest mistake lawyers make is assessing cases based on legal principles and their own view of the evidence. In a jury trial, success hinges on understanding how jurors’ belief systems and biases impact how they make decisions about trial themes, witnesses, evidence, and lawyers.
Addressing the Jury discusses the biases that a lawyer may confront when running a jury trial. One of the most important decision-making biases is the identification bias: if a juror identifies with a witness or a lawyer, it is far more likely that the juror will support them.
“Identification is promoted by using inclusive language — like ‘doctor tell us’ as opposed to ‘doctor, tell me’ — eliminating legalese, and always being reasonable,” Lehman says. “If a lawyer wastes time, is unfair, or is at any time anything less than courteous, jurors take it out on the client.”
Another common mistake lawyers make is ignoring the powerful primacy bias. Engaging in long openings, examinations, and closings with important evidence buried in the middle doesn’t account for the fact that people remember — and tend to accept — what they hear first. The opening statement and the first few witnesses are crucial.
This is especially important today, with attention spans getting shorter and shorter. It’s imperative to “start strong, stay focused, and finish strong,” Lehman notes, adding that a focus on developing compelling demonstrative evidence is especially effective in an increasingly digital age.
He recalls a jury trial where his client was hit by a boat propeller while swimming, and above and beyond photographs of the injury, Lehman obtained medical-legal illustrations and animations. The jurors were visibly moved by that evidence and the case was settled after the first week.
“Demonstrative aids and evidence are much more important now than they were 20 years ago – and much more advanced,” he says.
The importance of trial stories is another piece of the puzzle that cannot be underestimated. In the book there’s an in-depth discussion accompanied by real life examples of how an “underdog theme” can turn what might seem like a difficult case because of the plaintiff’s pre-accident struggles, for example, into a winning case. If crafted carefully — with jury biases in mind — plaintiff-side lawyers can obtain results far beyond what defence lawyers, insurance adjusters, and judges think possible.
Lehman experienced this first-hand in Little v. Sinton where his Grade 8 client was injured jumping out of the back of her still-moving school bus on the last day of school. Kids on this bus had been doing this for years without consequences, but as a Grade 8 she clearly knew it was against the rules. Defence counsel and the insurer were convinced that liability would be a major problem for the plaintiff but after careful focus group work, Lehman developed themes that resonated with the jury. One was that “adults in charge of the safety of kids must enforce rules or kids will continue to break them; it’s rule one of parenting.” These themes were so effective that the jury awarded over $7,000,000 — more than 14 times the defence offer.
A significant — and ongoing — contribution to jury practice
Oatley frequently receives heart-felt thank you notes from lawyers who conducted a trial successfully and attribute their success to Addressing the Jury. Realizing he was making a significant contribution to jury practice, Oatley says he was easily persuaded when Lehman approached him about a third edition. Recently released, it addresses gaps that formed in the time since the second version came out.
A lot has changed, from what motivates jurors to pay attention and make decisions to the law on what’s permissible in openings and closing, and the book now includes excerpts from opening statements, examinations, and closing statements from the many cases the authors have taken to trial in the intervening 20 years. With the support of Lexis Nexis, the book also includes two innovative audio chapters where Lehman delivers openings and closings from an actual jury trial he conducted, paused at points for Oatley to explain the strategy behind each piece.
The commentary makes this supplement a great learning tool, as “how an opening statement is delivered is almost as important as the words that come out of the lawyer’s mouth,” Lehman says.
While the book has far more application for lawyers in Ontario than anywhere else, it’s also invaluable for criminal lawyers as well as lawyers who appear before judges. In the latter instance, almost every skill outlined is as applicable to a judge as a jury. Ultimately, Addressing the Jury is worth the read — again and again.
“People need to read the book before and after every trial, because they’ll learn something new every time,” Oatley says, adding that when he reviewed Addressing the Jury for the third edition, he himself was amazed at how much wisdom is buried in the pages.
Calling a well-run jury trial an elegant way of delivering justice and one of the purest forms of democracy, “if you want to experience the satisfaction of helping deserving clients, the book is a must read.”