Features

Takeaways from my first jury trial

 
 

by Milica Filipovic   |   Michigan Bar Journal

 

I’ll never forget the feeling I had walking into the Breslin Center on July 28, 2015, going down the stairs to our assigned seats for the bar exam. It was the first time in my life that the air had escaped my body, I was light-headed, and my legs turned to Jello. I felt as if I would faint right then and there going down those stairs.

Since that day, I have had plenty of opportunities as a young associate to feel nervous and experience the uncertainty of moving forward, but nothing quite like that feeling. That is, until May 17, 2023, when I walked into Judge Matthew Leitman’s courtroom in the Theodore Levin Courthouse in Detroit for jury selection for my first solo jury trial.

I felt as ready as I could be prior to the trial and willed myself into that courtroom. But I instantly lost all trust in my legs as I stood to greet potential jurors as they walked in. In the months, weeks, and days leading up to this moment, I prepared for every moment and contingency; I planned and practiced every aspect of my first trial. I thoroughly prepped witnesses, had family and friends listen to my opening, and even recorded my opening and begged for as much feedback as possible. Nothing, however, prepared me for how I would feel when I saw those potential jurors.

As a bit of background, on Christmas Eve 2016, my client went to let his chocolate Labrador outside. The dog saw a squirrel and escaped from my client before he could put her on a leash. At that moment, a process server came to his home. My client told the process server that the dog was off-leash and friendly, but it was too late. She saw the process server and as she ran towards him, the process server pulled out his pistol and shot at the dog with my client standing directly behind her. The bullet ricocheted; to this day, it remains in my client’s neck between his carotid artery and his spine.

From the moment the potential jurors walked in until their two days of deliberations were over — resulting in a verdict for the plaintiff for $1.959 million — every single minute was a learning experience, teaching me lessons I will take with me into every future trial. I learned so many things, but it all came together when we talked to the jury after the verdict was in and asked them their thoughts.

While there is always room to grow and improve, the foundation of any trial I have in the future will rest on these takeaways, mostly gleaned from the jury:

  • Be yourself.
  • Know the facts of your case.
  • Don’t get caught in the weeds.
  • Make your client as likeable to the jury as possible.
  • Journal/debrief every day as much as possible.

BE YOURSELF

As I prepared for trial, the one piece of advice that I got from everybody was to be myself. The problem with that: What do you do when you know you are an acquired taste and haven’t really discovered who you are in a courtroom? We all battle with knowing that some people love us and some hate us, so how do you let yourself be who you are without knowing which way the jury will go?

As the jurors were called, I grabbed my legs under the table to make sure they were still semi-functioning. Relief came only when one juror stood up to introduce himself and, with a shaky voice, apologized for being nervous. That was my opening.

I decided to use his comment as an icebreaker to get out of my own head and connect with the people who would hold my client’s fate in their hands. When I stood up, I thanked the juror for his bravery for saying he was nervous, which paved the way for me to admit that I was, too. That very moment, that first exchange, set the tone for who I was and who I wanted to be. I knew then that the authentic me would have to be the quirky, sassy, and self-deprecating me unapologetically, whether loved or hated.

My notes, outlines, and road maps went out the window, and I got up to just talk to the jurors. I knew the case, I knew the facts, and I knew what I wanted to convey. In that split-second acknowledgment of that juror’s nerves, I decided to trust the process and treat them like I would any person on the street, telling a story using my normal mannerisms. Every single time I knew I messed up, I looked to the jury and pleaded for them to hold it against me, not my client. Every time I knew I made a great point, I looked to the jury, wanting them to know I was high-fiving my client in my head. I made jokes at my own expense, like I always do, every time I stumbled, tripped, or dropped something because I am nothing without my normal gaffes.

Don’t get me wrong — there were a lot of cringe-worthy moments, including an exchange I had with the defendant when my five-inch heel broke at the podium; I limped throughout the questioning until someone brought new shoes to my rescue. There were more times than I could count where I screamed “Idiot!” in my mind as I left the courtroom and replayed an exchange in my car on the ride home.

But guess what? The jurors liked it!

Even when they called me out for my cringiest moments, they all agreed that they completely dismissed it and thought I was doing the best I could to advocate for my client. The foreperson acknowledged that despite the rough parts, she “wanted to clap” during moments when I regained my footing. Ultimately, jurors can and will forgive your quirks, but not disingenuity.

KNOW THE FACTS OF YOUR CASE

As I was preparing for trial, I caught myself creating outlines of what I wanted to convey and most of those outlines were coming from memory. When I decided to ditch the outline for my opening statement, I also decided to do the same for direct examination of witnesses. I made a list of documents and/or evidence I wanted to get in through each witness, but I made the questioning flow like a conversation so it was organic and I wouldn’t be tempted to get more information than I needed.

Knowing the facts and evidence allowed me to focus on each witness’s responses without worrying about a checklist. When you know which facts you can save for later witnesses and which you absolutely need to get in with the witness in front of you, you can focus on the current witness’s responses. Then, you can get what you need when you need it and develop other issues you weren’t even thinking about or planning for, which makes for a far more logical presentation of your client’s story.

DON’T GET CAUGHT IN THE WEEDS

I wish I could tell you everything went perfectly. For the most part, it went better than expected. I remember coming home after the first few days in court and feeling like that courtroom is where I belonged and where I was meant to be. After the first day of witnesses, I was on top of the world. I could not have imagined it going any better than it did, and to my surprise, every single piece fell in place exactly as I had wanted it. I checked in regularly with Jim Harrington, a partner at Fieger Law and my mentor, and got his advice daily. I incorporated what I felt comfortable with and ditched what I didn’t. Luckily for me, I had all the support I needed to “do my best” and have “fun with it.”

The day I called the defendant, however, was a complete disaster. To provide a bit of background, before calling this defendant at trial, I had the distinct displeasure of deposing him. The deposition was terminated, and court intervention was sought after he refused to answer my questions and was completely disrespectful to me on a personal and professional level. Knowing how difficult that deposition was, I was extremely stressed out about the direct examination. In preparing for his testimony, I tried to incorporate the advice I got and answers I couldn’t get before and became hyperfocused on catching every single inconsistency and lie. This is where I was stuck in the weeds. I treated that trial testimony as deposition testimony, and I know it was not my finest moment. However, not every piece of testimony is an issue, and not every question needs to be impeached.

I felt like a total failure that day. As I drove home completely gutted, I got a great piece of advice from Harrington, who reminded me that even boxers take a couple to the jaw and lose a few rounds. He told me to put it behind me and come back swinging better, stronger, and more deliberately. Luckily this happened on a Friday, so I let myself be in my feelings and then channeled my inner Rocky Balboa over the weekend to look forward and not back. Thinking about it now, that was probably the defining moment of the trial for me and the advice I would give to anybody else tackling their first trial.

MAKE SURE THE JURY LIKES YOUR CLIENT

It isn’t just about the jury liking you. They have to like your client, and the only way that can happen organically is when you like your client and show the jury that you believe in them. Maybe it’s the lawyer’s ego or arrogance that we all have to some degree or just my inexperience, but I didn’t consider how the plaintiff and defendant themselves would impact the jury. I focused on our presentation of our case. The one thing that stuck with me was when the jurors looked at the defense counsel and told him how much they disliked his client. They painstakingly elaborated on how they noticed every grunt, smirk, chuckle, and the time he dozed off during the case and they held it against him. They noticed that my client did not wear a suit, but they also noticed how often I touched his shoulder and that the “burly Harley biker” choked up with tears when I talked about him and what he went through like I was a long-time friend.

During that exchange, I learned to make sure my client wears a suit not because they judge his looks, but because it’s a level of respect for the jurors who also have to wear nicer clothes. I also learned that jurors aren’t necessarily looking at the evidence, but rather the reaction of the parties to the evidence. They look at how plaintiffs and defendants treat the process as well as how we treat them as their advocates.

JOURNAL/DEBRIEF

Every single day when trial was over, I would rush home to prepare for the next day. There isn’t really any down time. What I think was most surprising for me was how time-consuming physical preparation would be. As a woman, daily trial prep meant not only making sure that everything was ready for the case itself, but for myself. Opposing counsel told me he had the luxury of rotating two suits with a different tie every day. Meanwhile, I had a new suit, new top, new jewelry, new heels, new makeup to match my outfit, and curled and styled my hair daily.

I was fueled by caffeine and adrenaline the entire time. Even though I was advised to sleep well, eat, exercise, and decompress, that was not something I could do (and don’t see myself ever embracing.) However, I did follow the advice of my colleague, Greg Wix, and made sure I found a bit of time each night to keep a “trial journal” of what went well, what didn’t, what I liked, and what I learned.

Ultimately, that journal became my therapy and allowed me to get in the right mindset every day. It essentially unburdened me from the things I thought I screwed up or could have done better and reminded me of the small victories I experienced every day. Every single night, that journal wiped the slate clean for me and gave me purpose for the following day — either to do better or keep the momentum rolling. Since that trial ended, I have gone to that journal so many times. You would think those moments and details always stick with you, but when every single day is powered by adrenaline and panic, those little moments fade into the past and the details that once meant everything suddenly aren’t as clear.

When it came time to talk to the jury after the trial had concluded, I reread that journal. It helped me figure out what I wanted to ask them. You better believe their advice and thoughts were documented that night, too!