TRANSCRIPT:
Adam Bloomberg:
All right, let’s get started.
I’m Adam Bloomberg, Senior Client Success Advisor at IMS. Today’s conversation is with Keely Duke of Duke Evett PLLC in Boise, Idaho.
She’s a veteran trial lawyer who has spent her career defending high-stakes matters in the Pacific Northwest and the Ninth Circuit Court of Appeals.
The conversation will be led by Chris Dominic, Senior Strategy and Jury Consulting Advisor here at IMS. They will explore how she approaches cases where the odds are challenging, how she prepares executives and witnesses to testify with authenticity, and why credibility remains the cornerstone of persuasive advocacy in front of the jury.
If you’re watching the recording of this broadcast, please like and subscribe to this channel.
Chris, it’s all yours.
Chris Dominic:
Welcome, Keely. How you doing?
Keely Duke:
I’m doing great. How about you?
Chris:
Good, good. I’ve really, I really enjoyed our conversations recently and it warmed me up for this. I’m really excited to ask you some of these questions.
Keely:
Well, ditto.
Chris:
All right, well, you build your practice around defending high stakes clients and complex litigation, right? What’s the first question you ask when you walk into a case where things are already kind of stacked against the client?
Keely:
I’m asking, what do you want out of this? And honestly, I’m doing that whether it’s stacked against the client or it’s not. It is what do you want to have happen?
Do you need to fight this to the death? Do you want to get it resolved? Even though you have the best case in the world, you have severe issues with the case.
I’m here to say, what do you want to see happen with this case? Why are you hiring me? And then I’m going to tell you—can we get it done?
Chris:
OK, so you’re thinking almost in like a reverse engineer way, correct? Tell me what the end state is, then I can work backwards from that and I’ll let you know how practical it is to create this result that you want.
Yeah, that makes a lot of sense.
OK, so you and I’ve been talking a lot about credibility as one of the three pillars of persuasion, right? And how it seems that it’s become kind of a lost art with some.
When you’re preparing a company executive, which I know you’ve done a lot of, to testify in a sensitive or technical case, what’s the biggest credibility trap that you advise them to avoid?
Keely:
They cannot come across as haughty or over intellectual. They have got to come across as a real person with real feelings, real concern, real care.
And if they don’t, the jury is going to ignore them and actually dislike them.
Chris:
Well, that’s a real thing. It’s funny you say that because we’ve been often talking about—we use these constructs of credibility we’ve been using for decades—but we end up talking a lot about the way jurors react to people when we show them depo clips.
One of the things that we’ll hear from people is they’ll talk about people being real or being authentic. And there seems to be a real premium on that these days, right?
Keely:
Absolutely. And jurors don’t want to just see that from the witnesses. They want to see that from the lawyers. That makes all the difference in the world.
And I’ll tell you, the great majority of trials, I can think of times where my opposing attorney was my best asset because they over promised, they weren’t credible. And then when we can capitalize on that through the case, the jury gets it. They have common sense.
Chris:
That makes so much sense.
Lately we’ve been studying the tradeoff between advocacy and credibility because I think sometimes that’s why that happens, right? It’s like, I should argue this without thinking about the fact that it might not land and it might hurt your credibility.
So sometimes clients often want to push every argument they think they can push, right? How do you guide them toward the few themes that move jurors?
Or it doesn’t have to be themes, right? Anything that helps instead of pushing something that people might not believe on its face.
Keely:
Well, I think there’s been a huge shift. So to get a little philosophical on you, I think there’s been a huge shift over the last few years of logic and great explanations.
The evidence is all stacked in your favor, and that’s great. However, if you don’t have a really compelling theme, if you’re not really advancing your side of the case versus defending the case, you’re not biting into the traps that the plaintiffs leave you, I really think you’re doing a disservice to your client.
Jurors want to feel good about their decision. And so even if you have all the evidence in the world—and it’s important to have that—you’ve got to come up with your key themes where you can sell it to everything.
Chris:
It’s interesting you say that because sometimes what we’ll talk about is, let’s not defend this. Let’s have our own case. Let’s have our own narrative. Let’s be activating our own human values in this narrative, and let’s give them a psychologically satisfying defense verdict, right? Or at least a good verdict, whatever it is.
Keely:
Yeah, that’s a difficult thing to accomplish sometimes because if you’re not in the habit of doing it, you have to really deliberately do that work.
Chris:
Do you find it’s hard to convince people of doing that work?
Keely:
Sometimes it can be. But actually, with good prep—which is crucial to any of this—you’ve got to prepare your witnesses well. You need help from professionals to do it, like you all, and you’ve got to practice.
And when you do that, you’re going to come up with your themes that are going to resonate—and some are not. Some you’re going to think are great, then you’re going to hear them out loud and you’re going to go, I don’t love that, but let’s shift it this way.
And you’re doing that throughout your depositions. You’re even doing it with your briefing to the judge because you’re not only selling a good feeling to the jury, you’re selling it to the judge.
Chris:
Absolutely.
Keely:
Judges want to follow the law, but they really like following the law when they feel good about it.
Chris:
You know it. It’s interesting you say that because speaker credibility really is the lawyer speaking, it’s witnesses speaking. We can’t really find a big distinction.
I think one of the reasons why it’s stressful for people sometimes—and why they don’t practice the way they maybe should—is because it’s public speaking. A lot of people are scared of it, even lawyers sometimes.
So is there anything you can do to encourage people to focus on that part of their craft?
Keely:
Practice makes perfect in my view. There are times we’ll bring in people on our own—15, 20 people—and have our client go through an examination so they’re having to speak in front of people.
With our younger lawyers, we’ll have them get up, present arguments and cases, and ask them questions to start getting them comfortable being on their feet, because it’s a lot harder than it looks.
Chris:
Yeah, it really is. And it’s often humbling when you look at a recording of yourself.
People always tell me, I hate the sound of my own voice or I hate the way I look on video. I think that’s the discouraging factor sometimes.
But as you and I were talking recently, I don’t know how you get better at dancing without dancing. And I don’t know how you get better at golf without swinging the club.
Keely:
Exactly. We’re not all built to just stand up and do it perfectly. It takes practice—even the best of the best. I’m practicing. I’m making sure that when I hit the ground, I’m hitting it running.
Chris:
Yeah, absolutely. It makes so much sense.
So I’m just staying with credibility for a little bit. You’ve earned a reputation for fighting hard but not losing your credibility. How do you balance tenacity with the right kind of restraint so the jury sees strength, not aggression?
Keely:
First, it starts with a client. I am not going to tell the client what they want to hear. They’re not paying me to tell them what they want to hear.
I’m going to work my way backwards—what is your goal? And from that, let’s see where we can go. The goal may shift, but I’m going to be straight up. They’re going to hear the good, the bad, and the ugly.
You cannot oversell to a jury—ever. If you overstate even something small, you lose credibility ounce by ounce, and those ounces add up by deliberations.
You can’t be a zealous advocate if you’re losing credibility.
Chris:
That’s exactly right.
Keely:
Your number one goal is to maintain your credibility in front of that jury. From there, advocate for the basic themes and facts so they know when you say something, you mean it.
And when I’m on the defense, I remind jurors in closing that I don’t get to stand up again. I ask them to be me during deliberations—to remember the evidence and not be fooled.
Chris:
I love it. Thank you.
Keely, one more question. If you had to give advice to someone new in their career who wants to be a first-chair trial attorney, what would you tell them?
Keely:
Know your case in facts like the back of your hand. Be true to who you are. No one can emulate anyone else’s style.
And remember, it’s your job to be both an attorney and a counselor at law. I take that counselor role incredibly seriously.
Chris:
I love it. Thank you, thank you, Adam, it’s all yours.
Adam:
Thank you to our guest for speaking with us today. To discover how the IMS team can help give your case an edge, visit imslegal.com or email contactus@imslegal.com.
IMS has served trusted law firms and corporations worldwide for more than 30 years and over 65,000 cases. As a strategic partner for the full case life cycle, our integrated teams provide specialized advisory support, expert witness services, litigation consulting, visual advocacy, and presentation technology to elevate strategies and protect hard-earned reputations.
Learn more at imslegal.com.
