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February 13, 2024 Feature

How to Conduct a Trial Successfully

Elmira Yousufi
Understanding all that goes into successfully conducting a trial will increase an attorney’s chances of achieving favorable outcomes for clients.

Understanding all that goes into successfully conducting a trial will increase an attorney’s chances of achieving favorable outcomes for clients.

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Trial skills and advocacy are fundamental to navigating courtrooms effectively. Understanding all that goes into successfully conducting a trial will increase an attorney’s chances of achieving favorable outcomes for clients.

Differences in Presentation for Jury and Bench Trials

The presentation in a jury trial and a bench trial differs considerably in terms of target audience, strategies, and emphasis on persuasion.

Jury Trial

Trial attorneys need to know how to pick a favorable or, at the very least, fair jury. The voir dire process is the most important and impactful aspect of a jury trial. A trained trial attorney knows where to dig into a potential juror’s life experiences while at the same time being charming and likable so as not to offend anyone in the jury pool. It can be difficult when asking jurors personal questions, especially when it has to do with the most intimate and tragic moments in their lives.

Presentation in front of a jury requires being entertaining and enjoyable to listen to. Attorneys should try to crack a joke or two to lighten the mood and make themselves more relatable. Attorneys should avoid being robotic, unemotional, or dull. It is recommended to use simpler language and explanations to make the case more accessible to the jury, as opposed to the more technical legal arguments used in bench trials. Attorneys should be kind and respectful to everyone in the courtroom because jurors will view an attorney being rude to court staff unfavorably, and once a lawyer makes an impression on the jury, it tends to stick. If a jury does not like a particular attorney, then they may take it out on the client during deliberations.

Bench Trial

On the other hand, a bench trial requires less charm and more emphasis on the strength of legal arguments and court procedure, highlighting legal interpretations and precedents. Typically, there should be less focus on emotional appeals or storytelling, as judges will make their decisions based on legal reasoning rather than emotional persuasion. It is unlikely that attorneys will be able to charm their way into winning a bench trial. However, it is still important to be likable and avoid being dull or boring. Judges are also people who grow bored from long, drawn-out arguments, so avoid being repetitive and make your point quickly and clearly. Unlike most jurors, judges are legally trained, so while the repetition of certain legal arguments, like the burden in the case, can be a smart strategy in a jury trial, repetition will likely annoy the judge in a bench trial. Being respectful and kind to courtroom staff is equally as important in a bench trial as it is in a jury trial. Judges will not look favorably upon an attorney whom they witness being rude to their staff.

Appearances Matter

In a jury or bench trial, the significance of appearances cannot be overstated. The manner in which the judge and jury perceive the attorney and the attorney’s client is key in influencing the impact of legal arguments. The ultimate outcome of the case often hinges on these perceptions, particularly during jury deliberations. Attorneys should be well-dressed and well-groomed. It should be no surprise that there are countless memes on the Internet about defendants going to jail because their lawyer looks like a mess. Optics matter, especially in trials. The impressions formed by juries and judges are sensitive to an attorney’s appearance—disheveled looks may be interpreted as a lack of preparedness, while a polished presentation suggests confidence, organization, and readiness. The perceived confidence and organization of an attorney can significantly impact his or her persuasiveness in the eyes of the jury.

The physical appearance of an attorney is also important for client perception. Clients may feel more confident and reassured when their attorney presents a professional appearance. This can contribute to clients’ overall sense of trust and belief in the attorney’s ability to handle their case effectively. Clients’ morale during a trial is reflected in their behavior and facial expressions, which can be easily seen by a judge and jury. Consider a client witnessing his attorney looking less than presentable, thus feeling panicky about the attorney’s ability to advocate. A jury may view this client’s nervous behavior and interpret it as guilt.

Equally crucial is ensuring the client’s presentability, particularly in criminal trials where the facts of the case make the defendant seem particularly unlikable. Clients should look clean and well-groomed. The client’s professional attire is a nonverbal indicator of respect for the court, conveying a message of care and regard for the legal proceedings.

Demeanor, Structure, and the Use of Technology to Facilitate Trial Presentation

An attorney’s demeanor in the courtroom is a powerful communicative tool. Confidence, poise, and professionalism contribute to the overall perception of competence and credibility for an attorney. A composed and respectful demeanor not only fosters a positive relationship with the judge and jury but also enhances the persuasiveness of legal arguments and storytelling. Nonverbal cues, such as movement, body language, and facial expressions, can convey conviction and sincerity, influencing how attorneys and their case are perceived. Trials can be long and arduous, so it is extremely easy to look bored and tired. Avoiding signs of boredom or fatigue is essential, as jurors may unexpectedly focus on the attorney or client, observing and forming judgments. Conscious efforts to avoid nervous ticks, maintain an upright posture, and project confidence contribute to how attorneys are perceived by the judge, the jury, and their client. In the courtroom, an attorney’s composed and attentive presence can significantly impact the overall reception of his or her case.

The organization of legal arguments and case facts is fundamental to effective trial advocacy. A well-organized presentation enhances clarity, making it easier for judges and jurors to follow the narrative of the case. The organized structure of the case presentation helps attorneys present their arguments persuasively, giving appropriate emphasis to key points and supporting evidence. Jurors are not going to remember everything during the trial; therefore, it is imperative that the attorneys utilize repetition, tone fluctuation, and purposeful movement to emphasize important points in the case. Attorneys should maintain notes throughout the trial, beginning with pretrial motions and continuing with closing arguments.

Technology has made it easier for trial attorneys to present their cases to judges and juries. Presentation software, multimedia exhibits, and digital displays amplify the clarity and impact of storytelling and legal arguments. For instance, by utilizing technology, attorneys can publish exhibits to the jury rather than printing out several copies and passing them around to the jury. PowerPoint presentations have become popular for closing arguments and have replaced previously used physical demonstratives. Unlike physical demonstratives, PowerPoints can be easily modified throughout the trial, up to the point of using them during closing arguments.

Annotation monitors transformed trials completely. These monitors allowed witnesses on the stand to mark exhibits that would then be preserved for later use. Prior to this, witnesses would physically draw on demonstratives/posterboards. With annotation monitors, that same exhibit can be marked by multiple witnesses, and each rendition may be easily preserved and presented to the jury. The convenience of this process cuts the expense of the attorneys having to purchase multiple enlarged copies of the same exhibit. Now, annotation monitors have been replaced by iPads or tablets. Some courtrooms may require specific software/programs to be installed for witnesses to use for this annotating purpose. Attorneys should check with the courtroom clerk on the specific rules for a particular judge and courtroom.

In some districts, courts are attempting to use technology to make the jury selection process more efficient. The program is called eJuror. It requires potential jurors to complete the initial questionnaire examination not in person in the courtroom, as is typically done, but online while the jurors are either at home or in the jury lounge. It has not been widely used yet due to many potential issues defense attorneys see arising. Criminal defense attorneys in my home city of San Diego have been strongly against the use of this new technology, preferring to be able to physically witness jurors answering those initial preliminary questions to determine on whom to utilize for-cause challenges.

The Use of Remote Technology

Remote witness testimony is becoming more common, especially in civil trials, but it is still infrequent in criminal cases. However, videoconferencing is regularly used in criminal arraignments, presentments, and status hearings. In criminal cases, remote testimony of a witness is usually permissible only if both sides agree to its use and the judge allows it. Prosecutors rarely agree to virtual testimony. My firm, in one case, required the testimony of an expert witness who lived out of state, but she was also in her 80s and physically disabled, making it extremely difficult for her to travel. For these reasons, the prosecutor agreed to have the witness appear virtually via Microsoft Teams. There were many complications during the witness’s testimony, including the court reporter having difficulty hearing everything the witness said and an unreliable WiFi connection that resulted in losing the witness during the trial and having to reconnect her. Other complications included multiple “rehearsals” with the witness to make sure she could connect via camera and microphone with no issue. Ultimately, the experience taught us to forgo virtual appearances if it can be helped, not only because of the technical issues but also because it gave the illusion to the court and jury of a witness who was not fully invested in the case as opposed to a witness who simply could not appear in person.

Making the Record and Preserving Issues for Appeal

Effectively preserving the record for appeal requires timely and specific objections. Even if they believe the judge will overrule their objection, attorneys should object solely for the purpose of preserving the record for appeal. If attorneys do not object, then they effectively waive their right to appeal. Sometimes, judges want to quickly overrule an objection because they already know why the attorney is objecting; however, attorneys should get a clear record of why the objection was brought forth. There is an art to objecting and making a record without annoying the judge. It helps to communicate to the judge by stating, “Your Honor, if I may be heard in order to make a record.”

Skilled trial advocates can read the judge well and know how to best cater to the preferred style of that judge when it comes to objections. Some judges look at attorneys, waiting for them to object, while others dislike frequent interruptions. Regardless of a judge’s preference, attorneys need to object when necessary.

Sometimes, opposing counsel will ask a series of questions that fall under the same objection. Each question asked in this series must be clearly objected to. Failure to raise a new objection to each subsequent question, even if it mirrors a prior objection addressing the same legal issue, could lead to the court’s deeming the error in overruling the initial objection as insignificant and rendering the ruling as harmless. However, if an attorney objects back-to-back to every question, he runs the risk of annoying the judge and the jury. A solution to this problem is to have what is called a “continuing or running objection,” meaning the attorney objects to the first question asked and requests that the court keep that objection for all questions asked on the same subject without having to object again. Doing this preserves the objection to the series of questions asked without bothering the court.

Complying with Rules of the Court and Standing Orders

Failure to comply with the requirements of the judge or the rules of the court, including any standing orders, may result in sanctions, delays, or unfavorable outcomes. It is imperative that attorneys familiarize themselves with the local rules of the court where the case will be heard. These rules outline procedures and deadlines. Standing orders are additional instructions or rules issued by a particular judge. They may supplement or modify the general rules of the court. For instance, one judge may have a specific rule on how she wants the trial exhibits submitted or how a motion should be filed. Attorneys should review any standing orders the judge may have. Attorneys may ask the court clerk to provide them with the standing orders or ask the judge what her preferences are for certain matters.

Timely Filings and Submissions

Strict adherence to deadlines is a must. Courts often have specific timelines for submitting documents, responses, and motions. Some judges will call out attorneys for untimely motions and arguments, usually with their client present. If attorneys have a legitimate reason for an untimely motion or argument, they must make sure to properly outline those reasons in detail.

Courtroom Etiquette

Follow proper courtroom etiquette, including addressing the judge with respect, standing when speaking, and refraining from speaking out of turn or interrupting someone. Attorneys should always stand when the jury enters and leaves the courtroom. It is a bad look and disrespectful when attorneys are seen fiddling with their phones or papers as the jury is walking in and out of the courtroom. Attorneys should avoid walking into the well of the courtroom unless they have permission, even off the record.

Discovery and Disclosure Rules

Attorneys must provide relevant documents and information within specified time frames.

Attorneys should be transparent in their disclosures to avoid later challenges regarding the exchange of information. Open and friendly communication with opposing counsel can make the disclosure process simple and efficient while avoiding complicated exchanges.

Communication with Court Staff

Trials can be long, so it is important that the courtroom clerk has the attorneys’ contact information to keep an open line of communication throughout the trial. The contact information should include personal contact and not just professional contact in case there is an emergency and the court clerk has to reach the attorneys immediately. Some court clerks prefer to text attorneys on their personal cell phones because this is typically the fastest way to get information to the attorneys.

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Elmira Yousufi

The Law Office of David P. Shapiro

Elmira Yousufi, Esq., practices criminal defense as an associate at The Law Office of David P. Shapiro. She is a member of the Lawyers Club of San Diego and the San Diego Criminal Defense Bar Association. Prior to criminal defense, she worked at the San Diego District Attorney’s Office. She received her bachelor’s degree in political science from the University of California, Irvine, and her law degree from the University of San Diego School of Law.