General Practice, Solo & Small Firm DivisionMagazine

Volume 17, Number 6
September 2000



By David Berg

A trial is a continuum, beginning with the first meeting with the client and ending only after the final word is spoken in closing argument. The best lawyers take detailed histories about their clients’ lives in addition to the facts of the case. Almost always, we can use that information during trial. Humanize your client. As plaintiffs, we tell a story. As defendants, we destroy that story and, if possible, tell a more plausible one of our own. Simplifying the story, telling it with absolute clarity of thought, is the key to convincing jurors of anything.Pretrial. Drafting a jury charge before the first deposition forces us to ask questions in the very words and concepts jurors use to reach their verdict. In the days before trial, streamline your case. Eliminate witnesses and documents you don’t need. Create a lineup of the witnesses who remain and the evidence you will put on through each.Voir Dire. The major purpose of voir dire is to determine juror attitudes about themes, so that we can make informed strikes and challenges for cause. The most effective way to get the panel talking about things that matter is to ask open-ended questions, never attempting to drive them to our conclusions. There are no bad answers during voir dire. Once we start responding to extreme positions by letting people talk no matter what they say, our strikes really start to count. Every successful challenge for cause equals an extra peremptory strike. Before you move to strike, commit the panelist unalterably to the disqualifying opinion. Ask questions that compel your conclusions, leaving no room for rehabilitation. Try to figure out your opponent’s strikes; if you are convinced there are going to be double strikes, consider changing your selections. Opening. The best opening statements are great closing arguments in disguise. Begin by repeating the judge’s instruction that what you are about to say is not evidence. That buys you latitude from the court and credibility with the jury. Done right, opening can have more impact than summation, when many jurors have already made up their minds. Argue your case in the words the jury will read in the charge. To minimize objections, reach an agreement with opposing counsel prior to trial on the admissibility of the evidence, and ask the judge to resolve any disputes. That way, you will be able to use key exhibits during opening. If the court allows, personally hand a couple of the exhibits to jurors during your presentation. If there are bad documents, explain them and, if possible, pass those out, too. It tells jurors that you want them to see even harmful evidence, an unmistakable sign your case is strong.

There are almost always bad facts that you need to address; it is best to do that before the other side does. For example, if your client did something wrong, the client may actually have to apologize—make a real apology as a responsible party during depositions and reiterate it during opening. That very human act goes a long way toward defusing juror anger and minimizing damages.

Remember, all this information you know so well is new to the jury. Don’t overload them. Help them follow you. Opening should be thematic. Time lines are essential but should be simple, covering only critical dates. Graphics should be like billboards, summarizing the case in a memorable way. Direct Examination. The lawyer should all but disappear during direct, guiding the witness with simple questions like "What happened next?" and "Why did you reach that conclusion?" It weakens the witness’s credibility when the attorney suggests rather than questions. Of course, this does not mean simply throwing the client on the stand to tell the story. Find a deserted courtroom, and ask your client to sit on the stand. Talk him through direct but never so much that the spontaneity is gone. Tell him to turn to the jury to answer only when he wants to emphasize something, when it is truly important. Make him understand that when you pass him, his demeanor cannot change, and that he has to answer each question with a polite "yes," "no," or "I don’t know" before explaining anything. That does not mean being passive. He can insist on the truth of his direct and point out serious errors in questions. He can occasionally ask to explain an answer, especially when counsel won’t let him.

The first witness the plaintiff puts on should be the one with the broadest knowledge of the case, often an expert. By the end of direct, the jury should know why the client is there, how he was hurt, by whom, how much money he’s owed, and why. Conversely, defense lawyers have to destroy the first witness in most cases. By the time she steps down, the jury should believe that her claims are frivolous and/or the damages are wildly exaggerated. One way to create a seamless transition from opening to the first witness is to listen carefully to your opponent’s opening and seize on any serious mistakes. Cross-Examination. Focus on what the witness said, not on what you want to ask next. Each answer can be a springboard to another question. There are rules common to all cross that provide a broad framework within which to analyze and improve our skills. They teach us to control the witness so that the witness never controls us. These rules include the following:

1. Keep a calm mind and listen.

2. Learn more about the subject than anyone in the courtroom.

3. Do not ask open-ended questions.

4. Formulate follow-up questions so you will not be surprised on cross.

5. Take advantage of confused, implausible, or unresponsive answers to demonstrate on the spot that the witness is evasive or lying.

6. If you represent the plaintiff, call the defendants and most of their key witnesses to testify during your case. That forces the bad guys to tell their story while being cross-examined.

7. Do not forget the jury. Ask questions that include them in your anger or dismay. Look at the jury as you ask, never turning away until you have your answer.

8. Don’t just impeach the witness, gore him. If you use a deposition, first describe what it is: "You took an oath, just like in this courtroom?" Read the prior inconsistent statement yourself.

9. Be opportunistic. Pounce on new themes during cross.

10. Infuse your cross with argument.

11. Ask questions opposing counsel should have asked but did not.

12. When testimony is incredible, go with the lies.

Closing Argument. The first words you utter should summarize your case, appealing to the broadest number of jurors in the most compelling way. Use language right out of the jury charge. If you talk in the same terms the judge will use when he reads the instruction, the jurors need make only a slight leap to fill in the blanks exactly as you want. If the trial has lasted more than a few days, you probably have a good idea how the jurors are leaning. Review the juror information sheet, and search for common ground.

David Berg is a partner in Berg & Androphy, with offices in Houston, Texas, and New York City.

This article is an abridged and edited version of one that originally appeared on page 6 of Litigation, Spring 2000 (26:3).

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