At this time of year, I always think about the new class of lawyers coming to their new jobs at the end of the summer, which also means that those who are already in their legal jobs for a few years will get slowly pushed up the ladder. When I was at Corporation Counsel (The lawyers for the City of New York) I was asked to put together a training seminar for the new lawyers normally a year or two out of law school who would now begin trying cases in defense of the the City. I worked with Chief of Trials Lenny Mentzer (as an “outside the box” thinker as there ever was) from whom I learned so much. We created all kinds of simple lists and pointers that would be easy to carry into court with you and which would be easy to follow. I then created a Top Ten list as David Letterman’s Top Ten list was just gaining popularity. I found it recently and perked it up for the new society in which we operate. So here it is:
10. Remember the Five Ps of Trial: Prepare, prepare, prepare, prepare and prepare. That about covers it. Know the file, break down the depositions, think the case through, read the documentary evidence over and over. Knowing your case better than your adversary is the first step to success.
9. Go to the location of the accident, crime, etc.: Never try a case without going to the locus quo as they say in fancy courtrooms. While pictures are helpful (and you should bring someone with you to take pictures when you visit if you don’t have pictures) nothing replaces being in the actual place yourself. Try to recreate the incident or visualize what a witness saw from their vantage point. Also, by going to the scene, a witness can’t pull the wool over your eyes by testifying to something that would be physically impossible. Finally, when you employ part of what you learned from your visit in a question – ” You know that there are two awnings that hang over that address, don’t you?” – you tell the jury you’ve done your homework and know what you’re talking about, establishing more credibility with the jury.
8. Go to the courtroom where the case will be tried: This is a good tip even for lawyers who will just be appearing on motions and not doing actual trials. Don’t let your appearance on the case be the first time you are walking into the courtroom. Learn the ropes of how that Judge and (more importantly) that courtroom clerk run the courtroom. Are they lackadaisical, no nonsense, on time, crowded, where does the witness sit? etc etc. If at all possible sit in the audience during a trial by the judge, ask other lawyers about pet peeves and unusual practices. The less surprises in store for you the less nervous and better off you will be. In most courts, state and federal, judges have individual practices and rules that you must be fully aware of. If you can’t find them yourself, call the part and ask the clerk if there are any such rules and where they can be found.
7. Be mindful of your appearance: You want to be well-dressed but don’t go overboard and become a peacock. Young lawyers can rarely pull off the flower in the lapel, bow tie, suspenders look. No flashy jewelry, but a nice watch perhaps. Dark strong colors are best for suits and let a tie or a scarf provide the color. Shoes should be well-polished and in good shape. Don’t have anything in your pockets that can create bulges or pulls.
But this also means: “Be mindful of your appearance to the jury.” During breaks, jurors will be looking at your behavior. They will suspect that you are on your best behavior in the courtroom but what about outside of it? Assume you and your client (or witness) are being observed by the jury at all times.
Developing you trial “persona” is critical for a trial lawyer. There is only one rule – Be yourself and be authentic. Don’t get caught in anything that appears like a lie or a deliberate misstatement to the court or the jury. You can never get your credibility back from that. I like to blend a little humor in what I do because that’s who I am and what works for me. But I also enjoy getting deathly serious and aggressive when called for. That’s also who I am. Having spoken to hundreds of trial jurors over the years, I have found that this dichotomy works for me; they found it interesting that I can be “light-hearted” and “laser-focused and serious” in the same situation. But only because those are elements of my genuine personality. Just like a tennis player at Center Court cannot hide his game’s weaknesses or blame it on a teammate, a trial lawyer cannot fake a personality all the way through trial. The real you will come out. So you might as well just start out being yourself. No matter who you are, speak clearly and in a loud voice that’s easy to be heard. Don’t interrupt the judge or your adversary. Ask permission to approach a witness or the bench. Do you best to maintain eye contact with the jury throughout the trial. Jurors seem to expect trial lawyers to be rude and obnoxious. They are pleasantly surprised by and very open to trial lawyers who are effective but courteous, efficient and prepared.
6. Be in control of the courtroom: This goes hand in hand with the previous item. Show that you are organized and prepared by keeping a running list of evidence- a simple sheet (one for each party) with columns for the item description, its number or letter; which party offered it; whether it was marked in evidence or just for identification, when it was admitted into evidence (date); whether there was an objection to it. See example below. Keep a list of the witnesses who testified, on whose behalf they were called and when they testified. Have extra copies of any depositions/evidence you plan on using for the court to read along. Ask if a witness needs water and ask the court officer to provide it for the witness. All this tells your jury that you are comfortable in the courtroom and that you are prepared.
Organize your files: Nothing annoys judges, court personnel, juries and clients more than watching a lawyer bumble through the file looking for an item they “swore was here a minute ago.” Know where everything is and have important items marked in their own manila folder. If something is really key, make multiple copies of it so its always at the ready.
If you are using electronic evidence or power point presentations, run through them five or so times to make sure you are intimately familiar with how to load them and run them without a hitch.
5. Write out your direct and cross-examinations: The examination of witnesses is of course of paramount importance in a trial. Think through what you want to accomplish with every witness who is likely to testify. What are you goals for each witness? How will they help you how will they hurt you? Remember that jurors particularly remember the first thing they hear and the last thing they hear. So start strong and finish strong. Especially for young lawyers – all cross exam questions should contain the fact you want to emphasize and ask witness to agree or not in some fashion and the be prepared for whatever answer “According to you this was so dangerous, yet you never once saw fit to complain about it, true?” [If the witness answers “true” you can move on to another topic or follow up with “Isn’t it a fact that you never complained because it wasn’t dangerous?” If the witness answers “Not true” then ask “Surely you are not now claiming for the first time ever that you complained of this condition are you?”] Have flow charts prepared for this type of analysis. For critical questions write out the questions entirely. In this blog, I don’t want to get into a lengthy discussion on cross, but have the cross broken up into topic areas and clearly defined sections – don’t go all over the place. Know what points you need to make and make them.
4. Preserve the record by learning, controlling and explaining your objections: There are many lists of trial objections you can keep handy. But commit them to memory as soon as possible. If the judge doesn’t care then don’t give a reason, just state “Objection.” Federal court and most state courts, however, ask for a one word explanation along with the objection: “Objection, hearsay.” It is a common young lawyer mistake to object to everything. Managing your objections has to be part of your overall trial strategy. Look carefully at the jury and try to assess their position on it. Are they getting angry because the other lawyer doesn’t know how to frame a question and your objections are all getting sustained? Are they getting the impression that you are just trying to block all evidence that is bad against you because all your objections are getting overruled? No matter what, no matter how it appears, you must state an objection to an item or line of questioning that you feel is error for the court to allow. Preserving the record is of paramount importance. Make sure you have explained thoroughly the basis for your objections. Some judges will do everything in their power to prevent lawyers (especially young lawyers) from making a record. They might say “I overruled your objection and you have an exception, there’s no need to make a record” or “The record is already clear why you objected, move on” You must forge ahead and ask for the right to put it on the record if you feel it is not adequately addressed. If the court says “You can do so later” or “You’ll have your chance” write down a note to remind you what you want to put on the record. Before the jury is brought in during next session, remind the court of its promise and ask to put it on the record. Don’t allow yourself to be dissuaded by the court. The only thing worse than losing a trial is finding out you blew your client’s appeal because you didn’t preserve the record properly.
3.Develop a theme for your case: No matter how complicated a case can be, you can find a theme that explains the case to the jury. What is the case really about? Remember that juries are used to watching TV show trials and that Americans like sound bites. Analyze the case and develop a theme that you begin employing in your discussion with the jury during jury selection. Prepare questions for a jury that develop the theme. “What would happen if we all started doing whatever we wanted without consequence?” “Do you owe the person next to you anything?” “How about behaving appropriately under certain circumstances?” “What’s a movie you liked that had a good message?” Get jurors talking about important concepts and work them into your theme. Having a theme also lets you decide what kind of juror you want – what kind of person will be most receptive and approving of your theme?
Bring the theme back to life in your opening and closing arguments and during key questions to witnesses through the trial. It can be a basic large concept theme: “betrayal of trust;” “lack of proof;” “fundamental fairness;” or something that’s case specific but it should be something a jury can quickly understand and identify with. When you set your case up with a theme like this, if the jury feels you have hit it on the head and come through with the evidence, then you are a winner.
2. Write your summation first: I know many trial lawyers who write their summation the night before they have to give it. A recipe for disaster. If you have followed rule number 10, you pretty much know what’s going to happen at trial. If you have followed rule number 3, you know the theme you want to hit home in your summation. Write your summation before jury selection. Read it aloud. Your motto should be: “If I can say this to the jury then I will win.” The goal of the trial will then be to get the evidence to fit your winning summation, not writing a summation to fit the evidence. At the end of every trial day, take out your summation and examine whether it needs to be modified or altered based on the day’s events. If something didn’t turn out like you planned, can you do something else tomorrow or the next day, to revive that issue so you can still say it in your summation? Do this as the trial progresses and your winning summation will remain intact. Writing your summation first will also force you to analyze the strengths and weaknesses of your case and prepare yourself for them.
1. Never pass an open bathroom: I am not kidding. NEVER PASS AN OPEN BATHROOM. A sudden dire need to go to the bathroom is the last thing you want in the middle of a trial. The sixth “P” of the five Ps in item 1 is “pee.” Get it out of the way so that its not on your mind. Go in before every court session. It also allows you to check yourself in the mirror and see if there’s a poppyseed in your teeth or cream cheese on your lapel. It lets you get your head together as well.
Of course, different trial lawyers will add or subtract tips from this list based on their experience but I have found that these ten rules provide a good foundation to get young lawyers (and even some not so young trial lawyers) “trial ready.”
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Sample evidence chart:
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