Guiding Jurors to the Verdict - A Case Roadmap that Wins

Why "No Evidence" Cases Still Win

One of the most common things we hear from new clients is: "they didn't have the evidence. How in the world were they able to convince the jury?"

The news flash here is that jurors don't think like us. We're strange. We're lawyers. We think in a very efficient way often. We think in a way that we assume that jurors will somehow through osmosis gain the knowledge of how to navigate their way through jury instructions.

We need to provide a roadmap.

You have to give them the evidence with which not only to prove claims as a plaintiff, but oftentimes how to disprove the elements of claims if you're on the defense side.

The Three Magic Words

One way you can do it effectively is by marshaling the evidence and coming up with a great memorable demonstrative that disproves the elements. And it's not just about disproving the legal elements, it's about saying three magic words:

"Write this down. Write this down."

If you are able, get jurors to write down the exhibits, the trial testimony transcripts that you are using to arm them with a way to exonerate your client, with a way for them to render a defense verdict. How can you expect them to do it by recall or relying on their notes, whether the trial was a week, two weeks, or two or three months?

Here is how we did it in a Sherman Act Section 1 antitrust case, where the elements are:

• There has to be the existence of a contract, combination, or conspiracy between or among at least two separate entities;

• that contract combination or conspiracy unreasonably restrains trade;

• that restraint affects interstate or foreign commerce; and

• that restraint caused plaintiff to suffer an injury to his business or property. 

It's not as simple as it seems. Antitrust experts go through this in scholarly settings and in jury and bench trials, and sometimes they confuse themselves.

You can rest assured that regardless of how long the jury instructions are or how short, jurors don't know what this means. They just don't know. You have to tell them what it means and why the evidence isn't there.

Simplify or Lose the Jury

After taking the jury through the elements of Section 1 of the Sherman Act, they are going to be confused. And they're going to be further confused after the judge reads them the jury instructions.

Your job is to simplify it for them by showing the evidence that refutes these elements. It could go something like this:

"Ladies and gentlemen, with respect to element one, just because two companies are involved in a trade group, they meet regularly, and they discuss things that are important to the industry, that is not evidence of a conspiracy.

A conspiracy is an agreement between two or more parties to commit a crime. So you heard what the legitimate purpose was for these companies to meet, and you heard that there is a trade association. Ladies and gentlemen, you're going to hear from the judge that a trade association, meeting at a trade association, is not illegal.

Now you heard from Steve Smith, and he told you about the association, that it's an industry association for sports and fitness brands. And then you heard critically from FITA Executive Vice President, Mark Doe. And he went through with you exactly why this industry existed. And one of the real important reasons was so that they could maintain the equipment and that they wanted to establish a set of safety standards that could help avoid injuries and hopefully grow the industry."

You want to equip jurors with citations, not just arguments. You do that by saying: 

"Please, ladies and gentlemen, if you're taking notes, and I see many of you are, even if you're not, please write this down and put a big asterisk next to it.

Underline it. Do whatever you have to. Write down section one, first element. So when you're back in the jury room, you remember this testimony.

You can ask for a read back. It's a trial transcript page 365, lines 13 through 25. And it wasn't just what Mark Doe said. It was also the documents that you saw in the case.

You saw it in evidence as defense exhibit 244. Please write it down that there was a safety checklist, and you heard from witness after witness after witness that the industry benefited from this, that there were less injuries, that after these safety checklist items were adopted, that gyms all over the country started making less insurance claims, that athletes were getting through the season without as many injuries. So you know, ladies and gentlemen, that this was not a contract, combination, or conspiracy, right? This was just the meeting of a trade group."

Remind jurors that one element is all it takes. Tell them: 

"So then their argument is, well, we can establish that first element. We showed you evidence, and it's not our burden that you can't. But even if they were to convince some of you, let's get to element two because remember, all you need is negating one element, and you find our client not liable. But as far as element two, an unreasonable restraint on trade, the testimony that you heard was just the opposite. The number of gyms increased.

The number of members continued to grow, and you saw no evidence other than argument. You just heard argument, but you saw no evidence. You heard no testimony that contradicted this. And ladies and gentlemen, here is the cite."

If you go through with the jury during your summation, how each and every element was negated by giving them guideposts, not just of argument, but of hard evidence, you're making their job easier.

Numbers That Do the Talking

The way that this one wrapped up is, well, there was no restraint on trade, so we didn't have to deal with the third element. Then we got to whether or not there was injury. We said:

"Look, you heard testimony from the defense expert, but rely on the numbers. And what the numbers show you, and you'll remember this demonstrative, and I'm going to leave it up here, ladies and gentlemen so some of you can scribble it down, because it's easy enough to see that while consumer prices dipped during COVID, and they initially went up after, that as of 2025, they had returned to pre what the government would say is conspiracy prices, that prices have normalized over time."

We blended testimony and evidence that was in the case, and we encouraged jurors to be active participants in the deliberation. We encouraged them to help crack the case.

A Roadmap to Win

Then if you go back to the element chart, another thing that you can do that we've done really effectively is to list right on the chart a summary, saying: 

"Here are the exhibit numbers. Here is the testimony that supports the defense's case."

By doing that, you provided a road map of how to win.

Learn more about how DRC approaches focus groups, jury selection, demonstrative aids, and trial strategy.