Washington Lawyer - March/April 2020 - 36

ON FURTHER RE VIEW

CONNECTING
WITH JURIES IN
COMPLEX CASES
By Lloyd Liu

hen you have a complex
case, it is, well, complicated.
It may be a case full of
moving parts, details, technical
jargon, and otherwise dry, esoteric
ideas. But that doesn't mean the
issues are necessarily hard or
insoluble. It takes a special skill to
navigate complexity, to know the
difference between complex
questions and hard ones, and
to effectively communicate that
to a jury.
I had the privilege of speaking with Elizabeth
"Liz" Lan Davis about her experience as a trial
lawyer in an area that is inherently convoluted.
Davis is the former chief trial attorney for the
Commodities Future Trading Commission's
(CFTC) Division of Enforcement. In that role, she
was responsible for investigating and trying
cases regarding potential violations of the
Commodity Exchange Act and the commission's regulations. Before her nine-year
tenure with the CFTC, Davis was with the U.S.
Department of Justice's Tax Division as counsel
to the deputy assistant attorney general for civil
matters.

36 WASHINGTON LAWYER

MARCH/APRIL 2020

Her expertise lies in her ability to explain extraordinarily complex legal and regulatory issues to
lay jurors. Her cases have involved virtual currencies, credit default swap indices, swaps reporting,
disruptive trading practices, under-capitalization,
and more.
Davis recalls feeling "nervous as all get-out" for
her very first trial. At the time, she was with the
Department of Justice, and she was beyond
prepared. It was an uneventful success and
essentially proceeded as planned, not surprising
for someone of Davis's accomplishments.
But she contrasted that experience with another
one: "I had a handwriting expert doing the
analysis on a signature card. I thought she was
wonderful. It was almost a teaching moment,
but the jury didn't connect with her. They didn't
like her. The trial ended up going from two or
three days to three weeks because of scheduling
conflicts and half-days. It just dragged on. The
defendant's wife testified. She was very sympathetic and presented a sympathetic story. They
connected with her and not the handwriting
expert."
It's a story many trial lawyers are familiar with:
Everything seems to be going according to plan,
all the relevant and necessary evidence is in the
record, and the logic is clear. There can be this
feeling that the trial should be arithmetic, but
then it isn't.
It's easy to think that trials ought to proceed and
conclude in a mostly reasoned way. After all, we
try very hard to do that. We operate under rules
and in a legal rubric that sometimes overestimates the ability to lay boundaries in a juror's
mind. We ask courts to strike testimony that

jurors have already heard. Jurors may be
instructed to hear testimony not "offered for the
truth." Some courts permit attorneys to debate
evidentiary objections in the presence of the jury.
We give not insignificant weight to a juror's
response that he or she can be fair and impartial
despite serious reasons to believe otherwise.
As Davis points out, "It's not just about how
your witness presents on the stand." Nor is it
just about what a witness says, as in the instance
of her handwriting expert.
A trial lawyer is, in large part, an educator. But the
idea that a juror's mind is a blank slate onto which
we can just transmit information is, at least to
some people, not true. Khan Academy cofounder
Andy Matuschak thinks the idea that one person
can directly transmit knowledge to another is
false. Here's what Matuschak said in an EconTalk
interview in August 2019: "In some sense, books
are kind of imagining, or an author is kind of imagining, that they can write an explanation of a thing,
and that a reader can read that explanation, and
then they'll come to know it." You have to do
more, and this relates to Davis's point.
Given her experience with material that is technical and dry to lay jurors, effective advocacy
requires more creativity. "It's about setting the
scene," she says. "The scene doesn't have to be
boring."
At one point, Davis was prosecuting a case
involving the depreciation of dump trucks. She
figured that the jurors were not likely to fully
grasp what that meant. Her thought then was to
have the jurors see the trucks in person, possibly
in action. "I wanted to get across the fact that
significant repairs had to be done on these

Washington Lawyer - March/April 2020

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