Antitrust Trials as Morality Plays

WHATEVER YOUR AGE OR EXPERIENCE, an antitrust jury trial is a challenging endeavor. An antitrust trial, like all trials, is both a search for truth and a morality play; it requires a presentation that will both persuade a jury (which will, after all, decide how the play ends) and an appellate court; it depends on building trust, and preserving your credibility, with people who don’t know you, are rightfully suspicious of your motives, and are half the time listening to someone else whose purpose is to destroy your credibility; and it is a zero-sum game in which the issue is not whether evidence, an argument, or ruling helps or hurts you, but whether it helps or hurts you more or less than it helps or hurts your opponent. All of which is challenging enough.

Antitrust trials tend to be even more challenging, as they tend to be longer and more complex than most trials and involve more unfamiliar economic, legal, business, and technological issues. They also are generally high stakes. We discuss those differences, and how they affect your decisions, in our practical advice on (i) how to prepare for trial (from day one of the case), and (ii) how to conduct the trial itself, including openings, directs, crosses, experts, and closings. Lengthy articles could be written on each of these topics, but with the pages allotted here, we hope our observations may be useful for those headed into the breach.

Trite Perhaps, But Trials are Indeed a “Search for the Truth”

Whether viewed as a slogan or a trite statement, a trial ultimately is a search for the truth. Juries (as well as judges) are trying to figure out what really happened, which will help them decide (subject to jury instructions) who is in the right. Too often practitioners forget this when preparing for trial, going down rabbit holes or tangents that are more about fighting with the other lawyers (or the court) than furthering this overriding objective. Of course, the “truths” that will decide a case are only the truths that you prove at trial. What is true in the outside world is important because it determines what is possible for you (and your opponent) to prove in court. But it is only what is proven in court that ultimately matters.

Trials as “Morality Plays”

Proving a helpful truth is a critical first step, but only that. There are many truths. Success at trial depends on getting the jury to accept, and emphasize, the truths that make your case, and reject or ignore the truths that help your opponent. It is human nature to over-emphasize the virtues, and ignore the vices, of those we care about, and to ignore the virtues, and de-emphasize the vices, of those that offend or threaten us — and to focus on facts that support what they want to do and to ignore facts that are in the way. And jurors are, at least for now, human. It is critical to make the jury like your client and what your client does, and to want your client to win. That can be particularly important in an antitrust case where the facts and their significance may be hard to understand.

Your trial is a morality play, and your ability to articulate and support powerful, understandable themes and narratives will be critical to your success. Your client is the producer; you are the writer and director; anyone who appears in court associated with you is an actor — the parts they play may be big or small, but every role has significance. A trial is an unusual morality play in that it is not one but two plays playing at the same time to the same audience, each play with themes and a narrative that is not merely different from, but in opposition to, the other’s themes and narrative.

The themes and narrative you choose must be strong enough to prevail over what your opponent offers. The longer and more complex the case, the greater the challenge. It is easy to be simple and understandable if you ignore or obscure inconvenient details, but inaccuracies make you vulnerable to attack. It is easy to be accurate and safe from attack if you are complicated, but your themes and narrative may no longer be understandable, and if understandable, no longer persuasive. The challenge is to craft themes and a narrative that are both simple and sustainable. Also, the longer the trial, the greater the challenge. In a short trial, your opponent may not have the time to uncover and exploit the weaknesses in your presentation. The longer the trial, the greater the chance any flaws foster failure. This is particularly true in antitrust cases because their high stakes generally mean that your opponent will have substantial resources and good counsel.

The longer the trial the more important it is to play a long game. The only time that ever really matters in a trial is when the jury begins deliberating. Everything that is said or done (or not said or done) before that is only significant insofar as it affects that deliberation and the ultimate result. Too often lawyers pushing to make every day a win end up pushing so hard that they undermine their long-term credibility.

Gaining Jury Trust is Critical

Other than selecting only cases where the facts and law are decidedly in your favor, the single most important aspect of being an effective trial lawyer is the ability to establish and maintain trust with the jury. If a jury does not trust you, it will be hard to get them to trust your witnesses or believe your case. Everything you plan, say, or do must be assessed and presented through the lens of building and keeping the trust of the jury. While this is especially the case with the lawyers putting on direct and cross-examinations, it is also true for the whole team. In this morality play, everyone and everything is on stage at all times. You and every member of your team will be watched and assessed throughout the trial, but particularly at the outset when jurors are trying to orient themselves. Remember that few jurors will have been in a courtroom and that they will usually come from varied backgrounds. And while they have seen courtroom drama on TV, most will know right away that this is different and may be the most important public act of their lives. They will take their role and job seriously and earnestly, wanting to do the right thing. And the first and most critical task will be to assess the lawyers: are they credible; do they make sense; and how do they interact with the judge, opposing counsel, and their own team?

One can think of jurors as people who have been picked up out of their normal lives and deposited in the middle of a wilderness that they don’t understand, have never been before, and don’t know how to escape. They are approached by two people — you and the other side — and each has a plan to lead them out, but in opposite directions. The jurors are trying to figure out to whom they should listen, believe, and trust to lead them out. What you say and do, and how you and your team act, in every respect, feeds into that decision. And while it is not a complete zero-sum game (jurors can trust both sides), the more you are trusted, the more your morality play and narrative truth will be embraced by the jury.

I. Preparation for Trial. Some lawyers do not think hard about how to conduct the trial until it is approaching, which usually is faster than anticipated. This is a huge mistake. Preparation for trial should be viewed as something that starts at the beginning of the matter and throughout discovery and motion practice. Each day and development is an opportunity to reassess your narrative, key points, witnesses, experts, as well as those of the opposition.

a. Begin on Day One of the Case. When we say preparation for trial begins on day one, we mean that literally. In fact, for a plaintiff it is much earlier. In deciding whether to take a case, as well as drafting a complaint, it is critical to think broadly about themes and likely narratives. Antitrust cases, in particular, can be so complex and technical that themes and truths may not be obvious — they need to be thought about thoroughly, including how they are likely to stand up to counter-narratives or key claim requirements. For the defense, as well, deciding the overarching affirmative or defensive themes from the outset is critical for shaping the discovery tasks, motions, and choice of experts.

b. Conducting Fact Discovery with Purpose. Your key themes and narratives should help define all phases of pretrial litigation: document discovery, interrogatories, fact depositions, and experts. This is the phase where those truths can be shaped, tested, and fine-tuned — and the evidence to support them garnered. How many lawyers assign discovery tasks without defining the case’s basic themes and narratives? Too many. It is only by reviewing in detail what you will be trying to prove that you can consider, in detail, what evidence can help prove the point, where can it be found, and how to get it in the discovery process. Especially when working with young lawyers, a good early exercise is to look at the model jury instructions related to the claim as well as summary judgment decisions that address the typical fact disputes relating to various elements. This will help organize the themes and narrative around what will be required to get past motions (for plaintiffs) or what will be central at trial (for both sides). This will take several days at the outset of the case, but it is well worth it. It is also an ongoing process. As the process unfolds, organize and assess the facts by issue. Are you getting what you need? Are there gaps? Is the evidence admissible? Who needs to be deposed and for what specific purpose? Keep an open mind about refining, changing, and even discarding themes and narratives. This is the phase before your Broadway opening. By the time the trial starts, you want to have tested your script and know it works.

c. Discovery of Experts — Three Objectives. Conducting discovery of experts (and, conversely, protecting your own) is a multi-dimensional task. Looking at it from the adversarial perspective, the first task is to pin down the expert to the scope and bases of his or her opinion; this frames what you will have to contend with at trial. A second objective is to explore and probe the expert’s credentials and experience. While that exercise rarely results in a successful Daubert challenge, you often will find gaps and cracks that open the door to effective attacks that can be amplified at trial. Finally, on the merits, you want to identify (and do so much earlier in prep) two or three simple and understandable lines of cross that may resonate with the jury within your themes and narrative.

Importantly, at the discovery stage, you can explore a variety of themes and positions and also push the envelope a bit; the jury won’t see this and more often than not you can move the expert to a place that seems absurd to the person on the street (and the jury box).

d. Discovery Generally. First, be sure you demand the documents you need to support your narrative (an important reason to articulate your narrative early). Second, use interrogatories and requests for admissions to try to limit your opponent’s options at trial and, if possible, gain some admissions before your opponent has defined its narrative. Third, use depositions to gain admissions supporting your narrative, get key players on the other side to disclaim knowledge of key areas to block testimony at trial, and get your opponent to stake out positions that you can use to undercut their credibility. Remember depositions are not trial testimony; rarely will a deposition be introduced in its entirety. You are creating building blocks for your trial presentation.

Of course, when the shoe is on the other foot and you are responding to discovery, protect your narrative, or change it if you can’t — and be sure you avoid your witnesses disclaiming knowledge about an area you may wish to have them testify about at trial.

II. Trial Execution. We now turn to conducting the actual trial itself, again always keeping in mind the broader preparation points above. The bedrock principle here is how to be understood; otherwise, none of the other suggestions will matter.

a. Clarity and Presentation — Keys to Jury Trust. If a trial lawyer (and the witnesses as well) cannot be understood, one’s morality play is likely to fall apart — and, clearly, you will not be the one guiding jurors out of the courtroom thicket. This guidance has several interrelated aspects, ranging from how to conceptualize and present the issues and evidence to basic ways to communicate.

As a starting point, one needs to remember, especially in an antitrust case, that the fight is no longer just among lawyers, experts, and, where relevant, the court. Complicated issues of market definition (e.g., hypothetical monopolist test, cross-elasticity, and the like), market power, concerted action (where relevant), causation, antitrust injury, etc., must be reduced to understandable concepts and language — no small task. And as we explain above, these simplification exercises are best started during fact and expert discovery, where the language that frames the issues in the case is first introduced.

More fundamentally, you must be understandable in all ways and at all times. For some antitrust lawyers, this may involve a real adjustment in behavior, while for others it entails just a conscious effort to use language (and concepts or examples) that are easy to understand and follow. By training and inclination, lawyers can complicate anything (indeed, they are often required to explore the intricacies of numerous complex issues, especially in antitrust cases), so undertaking the opposite exercise is a challenging and often clarifying exercise for the entire team. Mock jury exercises can help you test the clarity of your presentation and its emotional power. You can do much the same thing by trying it out yourself on people like your prospective jurors.

Simplification itself often is a major challenge, and it comes with several nuances. Jurors must understand what you are saying so that they can onboard it into their thinking. Once an issue is clearly understood and believed by a juror, it can become an anchor for them and a barrier for those jurors who want to come out against you. This is not an easy task. You must take a complicated case and simplify it accurately. It is not that hard to be accurate if you don’t have to be simple, and it certainly is not hard to simplify if you don’t have to be accurate. The hardest thing to do is to come up with a simplification that cannot be undercut and that fully combines all of the virtues of simplicity: short, concise, understandable, but also invulnerable to attack. Moreover, simplicity, when done correctly, can itself be a shield. This is because sometimes the more complexity you load into something, the more you give people an opportunity to shoot at it.

The stakes around simplification are high, particularly once you have committed to your narrative, whether directly or through witnesses. In lengthy antitrust trials, the opposition and their experts have all the time in the world to undermine or blow up your theme or narrative, in which case the simplifications can hurt you even more than they once helped. So, you must develop those basic truths (themes and narratives) you are comfortable defending over the long course of a trial.

b. A Note on Visuals. The simplification theme becomes particularly important when it comes to the use of visual aids and demonstratives. This ranges from how you highlight and present excerpts of documents to how your experts present complex econometric analyses and modeling. It must be visually simple and easy to understand (sometimes with explanation of course). Many jurors will be better visual learners, and even those that are not will appreciate the power of a simple visual depiction of an important point or analysis. 

Of course, it also must be accurate and unassailable. Too many times, a demonstrative with analytical cracks, baseless assumptions, or easily modified results can be converted to the other side’s exhibit. As with expert testimony generally in antitrust cases, lawyers and experts will spend hundreds of hours thinking how to pick apart anticipated analysis and related visuals of the other side — and little is more satisfying than seeing it work.

Let us also make a brief note on format. In the display of documents or visual aids (including PowerPoints with experts), the content must be accessible and understandable. Slide titles should be full sentences; fonts should be large; quotes should not have ellipses (which only invite alleged deception); highlighting should be in red (or yellow if tracing for the jury); content should not be crammed on the page (just add more pages). Whether live or for deliberations, jurors must be able to understand the content without explanation.

c. Openings — Themes, the Story and Promises Made. Nothing is more important than the opening. It is your first real chance to be seen and understood by an extremely attentive jury. It is where the foundation of trust is laid, and where you (and your opponent) are in complete control of what the jury will hear and see.

Most fundamentally, it is where you get to describe to the jury what is going on around them and how your morality play will unfold over the following days or weeks. This is where you set your themes, lay out the narrative of what happened, what witnesses will tell the story, and how it all fits together. You also get to preview (and simplify) some of the complexities in the case, both as to the industry involved and the experts that the jury will see.

Ultimately, the opening also is a promise of what the evidence will show to be the truth. And that truth, of course, will be carefully aligned with what the jury will have to decide as framed by the court’s instructions. As in any relationship, the key is not to embellish, cut corners, or over promise. As the drama unfolds, the jury will have in mind what you asked them to anticipate — the key is to deliver. And if you represent a defendant, your opening will have to be clear enough and strong enough to get the jury to keep an open mind during the plaintiff ’s case.

d. Directs — Building the Story. Direct examinations are the building blocks of your themes and narrative. It is your chance to write the script — to shape and control who delivers the narrative pieces, how they are delivered, and with what evidence. The jury will have heard from you what is coming, and beginning with the first witness, it is time to provide the building blocks of the narrative.

Most importantly, directs are where you will attempt to have your witnesses themselves gain the trust of the jury in their own right. So, just like you, your direct witnesses need to be clear, simple, believable, and likeable. This is done by a combination of laying a foundation of who they are, their role in the narrative, and the clear and concise introduction of supporting documents and materials. Much thought should be given to the order and flow of fact witnesses, especially who is best to set the stage for the narrative (a critical role), who can carry it forward in a logical and understandable way, and, of course, who bats cleanup and ties it all together (often through or in conjunction with expert testimony).

Two important caveats: first, on direct, the attention should be on the witness, not the examiner. This is their part of the play, not yours. And second, this will be the first time the counter-play and narrative will be presented in force through well-prepared cross-examination — and on a subject to which we now turn.

e. Crosses — Make Them Memorable. This brings us to cross-examination; let us start with fact witnesses. The first thing you have to remember in preparing for (and conducting) cross-examination is that this is not your witness; this is not someone who wants to help you. In fact, they want to hurt you.

A fundamental rule, then, on cross is to prepare an examination —  a script in our morality play — that cabins the witness in as much as possible. This can be done by avoiding open-ended questions (like why? Or what is your support for that?), even if tempting in the flow of an examination. All you will get is a witness that can say whatever they want, make a speech and, no doubt, try and retell their narrative. When that happens, it’s like a hot stove — you won’t touch it again. Hence, leading questions should be the norm, and those that are backed up by sworn testimony or unassailable documents (e.g., words out of the witness’ own mouth or company statements, etc.). Relatedly, you should be asking concise, understandable questions that compel short answers. The more the witness tries to evade, the more trust they will lose with the jury.

Remember, also, that in contrast to directs, you want to be the focus of the cross; you essentially are testifying, and the jury will be hyper-focused on what admissions you can get or credibility points you can score. Accordingly, it is essential that you plan well in advance the path you will be on — where you are starting, where you are going, and where you want to end up. Certainly, there will be some lines of questions where you do not know precisely how it will turn out (or somewhere you do not care what the answer is), but always remember you are doing this for the jury. You must grab their attention at the beginning, and you need to finish with something strong and memorable. You can’t have the jury asking, “well, what did that mean?” In very simplified ways, it all must reinforce your narrative and theme.

Importantly, remember that on cross you are not trying to win every little point in the case, which will lose the jury. You want to focus on a few key issues and truths that carry the narrative. In baseball terms, you want triples and home runs; doubles are fine, singles only if really needed for the record, while questions that elicit foul balls are the death knell of an otherwise powerful cross.

Often more important than the substance on cross is how you can influence what the jury thinks of the witness’s credibility, especially those carrying the narrative for the other side. To the extent possible, you are trying to convince the jury that this person is not credible or perhaps even likable. A good example is the cross of Bill Gates in the Microsoft case. His deposition had gone on for three days, and we persuaded the court to let us play certain portions of Gates’s deposition in conjunction with the testimony of other Microsoft witnesses. We now know, of course, that the series of non-answers by Gates on key issues — especially when juxtaposed with other witness testimony on those very subjects — was very impactful.

Finally, we want to highlight that, for cross, it is important not to have a formal script, which can be restrictive. You want to be able to improvise, particularly in the middle of the examination. But this does not mean you should relax. You want to appear relaxed, but more than any part of the trial you must be intensely focused: it is the most dangerous part of the trial. And there are some key tactics. Your best point should be saved for last (finish strong) and your second- best point should lead.

In sum, no matter how well a key fact witness for the other side does on direct, if the cross can reinforce your key points and themes or undermine his or her credibility, then the other side will be in real trouble. And the same goes for your own directs, too, of course.

f. Experts — Simplify And then Simplify Again. In antitrust cases, experts typically are required across a variety of topics: market definition, causation, construction of “but for worlds” (the counterfactual absent the misconduct), and damages. And for each area (some in combination) there will be smart and sophisticated experts, complex analyses (often with incredibly complicated methodologies), and a deep record of back-up, visuals, and depositions.

A major mistake of many lawyers (both on direct and cross) is to think the expert fight at trial is a repeat of what was done in discovery or on Daubert motions. Not so; the audience (the jury) is fundamentally different, has a different task, and has a different ability to absorb the evidence and relate it to the narrative. Lawyers who employ the same complexity with experts at trial as they did in discovery are asking for trouble, if not a “self-goal” — i.e., disaster.

i. Experts on Direct. Consistent with the approach with fact witnesses, the direct of experts should seek to establish trust and a simple presentation of the expert’s opinions and basis for them. The jury must come away with the belief that the expert is highly qualified, has relevant experience, and offers opinions that make common sense in relation to the narrative being offered by the lawyers. Here, presentation is key: it cannot be too “simple,” and it is perfectly appropriate for opinions and visuals to be reduced to the most understandable propositions as possible.

The direct of an expert should also anticipate the cross, much of which has been foreshadowed by depositions or Daubert motions, but without being too defensive or distracting.

It is good to take the sting out of an otherwise tough cross-point, which then can be further clarified on redirect if necessary.

ii. Cross of Experts. In antitrust jury trials, the cross of experts (like key fact witnesses) often is the main event and why many of us enjoy trial work. If anything, the challenge is not to get cocky or too clever. Rather, you need to put yourself into the shoes of the jury and out of the role of simply beating up on an expert (save that for depositions, if at all).

Hence, the best way to approach expert cross is to determine what will be memorable and harmful to the other side’s narrative when the jury is deliberating. And that, of course, is a moving target that depends on the particular weaknesses of the other side’s case. But, as always, the overarching theme is credibility. How should you position the jury to reject the expert’s opinions?

Sometimes this will come from the expert’s lack of relevant credentials or experience. Other times it will be found in the expert’s sloppy work and obvious mistakes. And, in antitrust cases, in particular, experts often can be exposed for offering opinions that simply don’t match the reality of the marketplace, the factual record, or the common sense narrative in the case. And try not to do too many things. It is best to reduce the cross to a few simple takeaways that can be used in closing — what is harmful to that expert (credentials, analysis, or otherwise) that you want the jury to remember and make part of its truth in deliberations.

Finally, as with fact witnesses, it is important to be nimble — i.e., ready to take advantage of an opening the expert gives you. For example, in the Microsoft trial, Microsoft’s main economic expert turned out to be unwilling to concede that sustained, high profits can be indicative of market power — something numerous leading economists had long observed. After getting the witness to fight off the suggestion several times, he was then shown his own statement in an article he had written. This made the concession much more important than it otherwise would have been.

g. Closings/Jury Instructions — Promises Kept. If, by closing, you have the jury’s trust, it is the time to take advantage of it. Conversely, if you don’t have the jury’s trust, the game is likely over. In a practical matter, the closing is the time to highlight the most important evidence — documents, testimony — and remind the jury how it fits into the narrative. You want to arm those jurors who are with you so they can do battle with those who are not.

At a more theatrical level, the closing is the time where you can go over the narrative and evidence and show, in simple terms, that the narrative described in opening is indeed the truth of what happened. This will be a combination of documentary evidence and discussion of the key witnesses — those who were forthright and should be believed, and those who should not.

For plaintiffs, in particular, it should be remembered that most courts provide for rebuttal, giving you the last word. As a tactical matter, then, you want to plan carefully what that last word (or points) will be. You may want to keep some of your powder dry so that it can be adjusted very specifically to the defendant’s closing. Of course, if you represent a defendant, you need to have this in mind and try to leave the jury with unassailable truths.

Finally, the jury will be instructed by the judge on the process for making its decision, including grappling with jury instructions. As a trial lawyer, you should have a clear plan to walk the jury through the decisions they will have to make, what those instructions mean as a practical matter, and the key evidence that establishes the truth of your own narrative within the relevant instructions.

Conclusion

An antitrust jury trial has limited connections to the academic world of antitrust that dominates motion practice in antitrust cases. Juries want to figure out what happened, who is in the right, and why the requested outcome (from either side) is fair and just. We, of course, know that antitrust claims have very specific elements and requirements that must be covered for the post-trial and appellate record; that the industries and expert testimony is inevitably complex, if not inscrutable; and that there are jury instructions that necessarily require addressing the nuances of antitrust. But, in the end, an antitrust jury trial remains a morality play where the winner will have persuaded the jury that its truth is their truth, too.

This article was first published in Antitrust Magazine on March 24, 2026.