Ten Trial Tips for Litigators

10/7/2010 Articles

When I found myself with a block of time earlier this year due to the continuance of a large case that had been scheduled for a two-month trial, I took the opportunity to further hone my jury trial skills at the Marin County district attorney's office. I learned countless lessons during those trials, ranging from simple matters of courtroom etiquette to more substantive issues concerning trial strategy. Below are 10 trial tips that I drew from that experience.

1. Voir Dire - Get Them Talking

Your main goal in voir dire is to gather data about your prospective jurors. In particular, you want to glean information about: (a) biases that might form the basis for "cause" challenges; and (b) personal views, characteristics, attitudes, etc., to inform your decisions on peremptory strikes. The only way you can effectively get such information from prospective jurors is to get them to talk to you. This often requires calling jurors by name (assuming it's allowed - some judges do not permit this because of concerns for juror privacy), asking questions of specific jurors and otherwise treating voir dire as a quasi-classroom where you are the teacher (which also gives you the opportunity to educate the jurors about your case).

2. Opening - Just the Facts, Please

Traditionally, an opening statement is just a simple statement of the facts the attorney believes the evidence will prove. It is not argument, but rather, a factual roadmap. Of course, attorneys will sometimes try to push the boundaries by interjecting argument into their openings. As I learned during one of my trials this summer, a strict judge will not hesitate to admonish an attorney (in that case, me) whose opening statement strays into argument. On the other hand, some judges are more permissive. Getting a feel for where the boundaries lie with a particular judge can be helpful in achieving a smooth opening statement. At a minimum, the opening should stress your theme(s), which can be accomplished without crossing the line into argument.

3. Evidence - Know the Rules

Civil litigators sometimes approach their cases as though all evidence will be freely admitted at trial. This may be because they do jury trials infrequently or because they are accustomed to arbitrations in which virtually all evidence is admitted. Whatever the reason, the importance of being conversant in the rules of evidence cannot be overestimated. Failing to know those rules and to formulate a plan to address them can lead to the jury never seeing key evidence supporting your claim or defense. Some seasoned trial attorneys make a list of every piece of evidence they plan to admit, and for each one, a list of every theory for admitting it into evidence, as well as a plan for having a witness authenticate it. It is never too early to start thinking about evidentiary issues, which should help guide your discovery efforts and inform your assessment of the strength of a case.

4. Courtroom Logistics - Where to Stand

Find out, before the beginning of trial, logistical issues specific to your courtroom and judge. For example, where do attorneys stand during voir dire , opening statement, closing argument and witness examination? How does the judge conduct voir dire ? Does the judge limit the use of PowerPoint during opening and/or closing statements? Obtaining this information before trial can prevent awkward and embarrassing moments in front of the jury.

5. Ask Permission

Always ask for permission to be heard and/or to approach if there is a substantive issue that you want to discuss with the judge. Other than stating objections, substantive issues should not be discussed in front of the jury without the court's permission. Do not blurt out a response to another attorney's objection or something the other attorney says. Rather, ask the court if you can be heard. If you fail to do so, you risk being admonished by the judge and looking bad in the eyes of the jury. In an extreme case, you might invite a motion for mistrial.

6. Stand Up

In Marin, some attorneys stand up when they examine witnesses or address the court, others sit. It is not an overly formal courthouse. I found that attorneys who stood up came across as more professional and polished than those who did not. Thus, I always stood up to examine witnesses, to address the jury during voir dire and to address the court (and, obviously, during opening and closing statement). Really, any time I was speaking in the jury's presence, I was on my feet. One of the Marin judges told me that he appreciated my standing up because it showed respect for the court and for the judicial process. Also, be aware that in many courthouses (Marin included), attorneys customarily stand up each time the jury enters and exits the courtroom.

7. Closing Statement - Argue

A closing statement is an argument . Judges typically impose few limits on what is fair game in closing (although you will likely get cut off by the judge if you argue a point that has been foreclosed by a prior ruling). Closing is your chance to argue to the jury why your client should win. It is the time for vigorous advocacy. If you think a witness who testified for the other side was not credible, say so and explain why. If the other side failed to present evidence that common sense would tell you should have been presented, point that out to the jury. In addition, be sure to take the opportunity in closing to explain to jurors any lingering questions they may have. For example, police reports are typically not admitted into evidence in criminal matters. Jurors sometimes wonder why. For a prosecutor, such speculation by the jury is dangerous. A prosecutor can diffuse the issue by explaining to the jury in the closing argument that police reports are not admissible.

8. You Are Not Jack McCoy

The golden rule of cross-examination is that you should not ask a question to which you do not know the answer. Do not ignore this rule. It has persevered for a reason. Cross-examination should typically be a quick, surgical strike in which you score discrete points or admissions that you can use to help your case. Gaining dispositive admissions on cross-examination or cowering a witness into a dramatic confession are rare occurrences that do not often happen outside of television dramas. While reasonable minds can differ on this point, I believe that if you have nothing worthwhile to gain from cross-examining a witness, you should consider passing altogether. If you pass with confidence and authority (symbolically giving the witness the back of the hand), it may give the jury a subtle suggestion to treat the witness with a similar lack of regard. On the other hand, an ineffective cross-examination does nothing to help your case and might actually harm it.

9. Don't Ignore Jury Instructions

Some attorneys treat jury instructions as an afterthought, ignoring them until the last possible moment. They do so at their own peril. While you usually don't know exactly what the instructions will say at the start of a trial, you should have a pretty good idea. Effective trial attorneys will tailor their exams to match as closely as possible the language of the instructions. Furthermore, you should ascertain early how the judge approaches jury instructions so that you can make an appropriate submission to the court. Be familiar with the instructions you are requesting, and be prepared to argue for, and if consistent with the judge's procedures, make a formal motion for any modifications or special instructions that may help your case.

10. Think Like a Layperson

Most jurors are not attorneys. They do not view trial through the lens of a lawyer who has been practicing law for much of her adult life. Try to put yourself in a layperson's mindset. For example, while an attorney may think it's commonplace that an expert witness is handsomely compensated for her time, the fact that the expert is earning hundreds of dollars per hour for her testimony may undermine the expert's credibility in the eyes of the jury. Similarly, if a witness is a friend, spouse or relative of a party to the case, use that fact to suggest bias. You can elicit these facts on cross-examination (although a smart lawyer will front them during direct examination), and you can refer to them in closing argument. You should not miss a chance to give the jury a reason to discount the testimony of a harmful witness.

Reprinted with permission from the October 7, 2010 issue of The Recorder. © 2010 ALM Media Properties, LLC. Further duplication without permission is prohibited. All rights reserved.