Again building off Drug and Device Law’s "The Vanishing Trial," they write:

Here’s one example: Suppose an opposing expert made an arithmetic error that undercuts the entire basis for his expert opinion. If I’m going to try that case, I should use the deposition of the expert to lock him into his opinion and leave him no way to escape from the error, but I should not disclose the error.

I want to disclose the error for the first time at trial, so the expert will be caught by surprise, and the jury will see that the guy is an incompetent boob.

On the other hand, if the lawsuit is going to settle, there’s no reason to keep my powder dry. There will never be a trial. If I don’t spring the trap during the deposition, then the trap will never be sprung at all, and my client will never receive any value (a lower-cost settlement) as a result of my having unearthed the mistake.

That’s just one illustration, of course. But it does make us wonder about law firms that boast, for example, that, "We prepare every case as though it’s going to trial!" Wouldn’t it be more intelligent to prepare for trial those cases that are likely to go to trial, and to posture for settlement those cases that are going to be settled?

Please note that the words we’re writing here are viewed, within our profession, as heresy. Big, bad trial lawyers don’t acknowledge that most cases settle. Instead, those lawyers beat their chests and shout that, "I eat nails for lunch! I gnaw limbs off plaintiffs’ lawyers! I spit out experts’ eyeballs!"

While they still prefer the old "surprise at trial" paradigm, I’m not convinced. Maybe that worked in the good old days prior to the "tort reform" movement. The new juror mindset may cut plaintiffs most deeply, but it cuts lawyers of all stripes.

The vast majority of "surprises" I have seen at trial, like cross examination by a prior inconsistent statement, either did not work at all or set the lawyer back by annoying the jury. No matter how you do it, in the context of a trial it usually looks like a cheap lawyer trick.

Let’s take a look at one of the best examples of it: Jack Nicholson’s "you can’t handle the truth" outburst in A Few Good Men. The scene is shown so frequently at CLEs I have it memorized.

If you don’t recall that scene, in it Tom Cruise questions Jack Nicholson, who says both that his men certainly would have followed his order not to hurt Private Santiago and that he ordered Private Santiago moved to special protective custody. After some theatrics, he’s nailed on the inherent contradiction of ordering the same protection he assures the jury was not necessary.

Well, so what? I can guarantee you in a real trial Jack Nicholson would not have gone into a rant confessing his sins, but rather would have nailed Tom Cruise with the common sense explanation that he was pretty sure his orders would be followed but he wanted to protect Private Santiago just in case. Even if he didn’t, a juror would have pointed that out while deliberating, and the focus of the deliberations would turn to how you, the lawyer who is supposed to know your case like the back of your hand, put the most emotion and emphasis into a mild contradiction with a benign — even helpful! — explanation. Not good.

Moreover, that partial summary of a familiar scene in a popular movie took two full paragraphs. I routinely throw away dozens of "gotcha" issues I could spring on the other side because you’ll only really get their importance — and see them as part of a pattern of systematic lying and deception — if you’ve been steeped in the case for months or years. Most "gotcha" moments go completely unnoticed by the jury, even with shouting by counsel, not because the jury is lazy or stupid or not paying attention, but because they are hearing all of this for the first time in a fairly convoluted manner. How many times did you have to watch your favorite movie before you really understood the details? What if you also didn’t want to be at the movie, had nonetheless been there for days, and suspected the director wasn’t being honest with you?

A plaintiff’s trial lawyer cannot rely on tricks or theatrics to "win" cases. There’s no "winning" these days: either the jury is convinced your story is The Truth, or they’re not. Win by having a simple, provable and unassailable story.