Thinking on your feet means being on your feet and doing your prep work, say seasoned litigators on this month’s podcast. Standing to address the courtroom may feel awkward, but juries feel it shows respect. Hear more trial tips and tricks they shared with ABA Journal Podcast moderator Stephanie Francis Ward.
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Updated on May 8 to correct the spelling of Barbara Ashcroft’s name.
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Stephanie Francis Ward: There’s a first time for everything and you’ve got a trial that’s going to go to trial. How can you represent your client and yourself to the best of your abilities? I’m Stephanie Francis Ward, and that’s what we’re discussing today at the ABA Journal Podcast. Joining me are Barbara Ashcroft, the director of the Trial Advocacy Program at Temple University Beasley School of Law; Stephen Hurley, a Madison, Wis., lawyer known for his criminal defense work; and Jim McElroy, a civil litigator and solo practitioner in Delmar, Calif.
I have a question for all of you. First off, what are some of the things they teach you in law school about trying cases that in hindsight are just absolutely ridiculous? Jim, do you want to start first?
Jim McElroy: I don’t remember being taught a thing in law school about how to try a case. There was, I think, one trial techniques class offered that I wasn’t permitted to take for some reason. But I don’t remember anything that I learned in law school about trying cases.
Barbara Ashcroft: Let me just follow up on that. I agree with Jim. Even when I was in law school, unless you took specifically a trial advocacy class, you’re learning only theory and substantive law. You’re not learning the practical application of law. Here at Temple Law School we’re really huge in trial advocacy and a lot of the other law schools are now as well. But during the time I went to law school, there were no types of skills training.
Stephanie Francis Ward: Steve, what do you think?
Stephen Hurley: One of the things we teach or that is taught in trial advocacy today that I think gets my goat is teaching students to ask permission to move around the courtroom. I can’t tell you how many students who’ve been through trial advocacy walk in the court and say to the judge, “Your Honor, may I approach the witness?”
As I tell them, anytime you ask the judge for permission there’s a 50/50 chance the answer will be no. One is better just doing it and having the judge say, “Not in my courtroom.” I think you’ll find that most judges, as long as one moves around the courtroom with a purpose, they’re not going to stop you.
Barbara Ashcroft: I think I have a little bit of a disagreement on that, Steve, only because I think that when a judge will say to you, “Hey, don’t move around my courtroom,” then you’ve sort of gotten spanked in front of the jury. Where I think if you ask initially, “Your Honor, may I move around the well of the court,” there’s a better opportunity for you to show the jury and also respect to the judge. I think we differ a little bit there.
Stephanie Francis Ward: Maybe is that part of your trial strategy? I mean if you have a judge that doesn’t want you to move without his permission, maybe it’s good to get spanked in front of the jury.
Stephen Hurley: In a close case, the lawyer that takes command of the courtroom is the one most likely to win. I would rather have the judge tell me in front of a jury, “Don’t do that,” than to be, at least for my initial impression to the jury, to be one of a supplicant. It can all be cured by doing homework–
Barbara Ashcroft: Absolutely.
Stephen Hurley: You go into the judge’s courtroom the week before and you watch what the judge is doing and you’ll know from that. But in the absence of not doing homework–which isn’t a good thing–in the absence of that, I would prefer to take the chance on the judge saying no. Most judges will say it in a very kind way, especially to a young lawyer.
Jim McElroy: I would take a middle ground here and say that when approaching a witness, I’d go either way, but when entering the well–especially in California, I notice, and especially with heightened security around the judge’s safety, all that kind of stuff–entering the well, walking toward the judge into the well is something that generally I would encourage a new lawyer to request permission for.
Usually, you’re handing documents–at least in California courts–to the bailiff or someone else who then approaches the bench with the documents. But on the rare occasion where you need to approach the bench with a document or something, I think the better course is to ask the judge if you may approach.
Barbara Ashcroft: I think one thing that I want to follow up on what–was that Jim that was just talking?
Jim McElroy: That was.
Barbara Ashcroft: Okay. What Jim was just saying in a world where the younger generation is a lot less formal, I think the formality of the respect to the judge to say with all the security issues, “Your Honor, may I freely walk around the well,” I just think that at the end of the day that’s going to get young lawyers credibility with the judges and that I think is also showing the respect for the judge. Now as with regard to other arguments, I have other ideas.
Stephanie Francis Ward: I’m going to jump in for a second just perhaps for our listeners who don’t know. Explain to us what the well is, please?
Barbara Ashcroft: Sure. The judge is sitting on the bench and the lawyers are sitting at a table and then the jurors are in the box. The well is the area in front of the judge and in front of the lawyers facing the judge. All that space in front of the judge and in front of lawyers and then, of course, there’s the witness box, which is usually right next to the judge that’s presiding over the trial.
Stephanie Francis Ward: Okay, now going off what you said about being respectful in court, let’s talk about dealing with opposing counsel and I’m curious about your thoughts on the line between being the best advocate you can be for your client versus being a jerk, which will probably backfire on you. Did you want to take that first, Barbara?
Barbara Ashcroft: Yes. I think civility in the courtroom is very important and I think it’s really important because one, as lawyers we have a duty to be ethical; we have a duty to the court; a duty of being credible in front of the judge, in front of the jury, in front our client and in front of anybody else really that’s in the courtroom. I think civility is significant. I’m not suggesting that you should cave against an opposing attorney. I think you have to fight the good fight, but I think you can do it in a way with civility and with class and with dignity.
Stephanie Francis Ward: How do you deal with an opposing counsel who’s trying to intimidate you because of your inexperience?
Stephen Hurley: The way you deal with anyone who is being disrespectful of you. For me, it’s you just let it roll off our shoulders. There’s a lot about being a lawyer, whether you’re experienced or inexperienced, that you just have to let roll off your shoulders. If your mom didn’t teach you to be kind by the age 10, you’re not going to learn it in law school, and you’re not going to take advice from other people about it.
The world has plenty of people who are unkind. Some of them go to law school and graduate. You’ll find that most lawyers, whether doing civil litigation or criminal litigation, are very kind to one another. There’s a part of being a trial lawyer that requires acting but method acting should only commence once you’re in the ring. You can’t put yourself in the mood for the trial by hating your opponent. You’re going to do yourself and your client a disservice, and the judge is going to know, and it’s going to reflect badly on you.
Jim McElroy: May I just point out: I think that a belligerent and overly aggressive attitude, unfortunately, is sometimes an occupational hazard for the younger lawyer, which is what we’re talking about now. That lawyer that’s going into their first trial does not want to be intimidated and feels a little insecure and is not going to let anybody push him or her around and certainly needs to show their client that they’re not going to be pushed around–and while I understand that, that’s all the wrong instinct.
You’re going to get the most…even if you think about it in a completely self-serving way, which is not what I’m suggesting. But payback is hell, and the best way to be a good lawyer and the best way to make your first trial go smoothly and every trial go as smoothly as possible is to be professional and courteous to opposing counsel at all times.
As Steve says, that’s the way to live your life, but it also inures greatly to your benefit as a lawyer because what you put out is what you get back. Showing professional courtesy to your opposing counsel saves your client money, and it makes your case go more smoothly, and it gets you what you and your client need.
Stephanie Francis Ward: I’m curious in terms of strategy or reading people. I know as a reporter if someone is discourteous being interviewed, oftentimes, it’s because they have something to hide or they’re uncomfortable. And I’m curious: If you have an opposing counsel who’s not very courteous, is that perhaps a sign of weakness?
Barbara Ashcroft: Yeah, and let me talk to that for a moment. You know, whenever young lawyers are going to be trying cases or in the courtroom fighting motions, there’s always going to be obstreperous opposing counsels. Many times that type of behavior really goes to the credibility of the lawyer. If the lawyer is acting out and, you know speaking with a fire mouth, it doesn’t mean that the young lawyer should return that fire. In fact, the more civil and the more well-spoken the younger lawyer is, the more the credibility of the very difficult lawyer is judged by the jury or the judge. So, the calmer, the more courteous you are, that benefits you in so many ways.
Stephanie Francis Ward: Let’s switch gears a bit here. I want to ask all of you about thinking on your feet during trial for when things come up you didn’t expect. What kind of advice do you have that? Steve, do you want to take that question first?
Stephen Hurley: Sure. It’s called thinking on your feet for a reason. It’s you’re on your feet and when it’s your opportunity to ask questions in the courtroom, you ought to be on your feet. I’ve seen too many young lawyers sit in their chair. This was a difficulty that I had when I first started out. I was so nervous about doing trials. I was nervous about walking around the courtroom and it was a real effort for me to stand and walk around the courtroom.
At a minimum, I stand to ask questions. One of the federal judges here in Madison had a practice of always speaking with the jury after they’d reached a verdict. One of the things that you got back in the feedback consistently, jury after jury, was that they thought lawyers were disrespectful of the court when they didn’t stand to ask questions. We call it thinking on your feet because it’s literally what you’re doing.
When I first moved from doing appellate work into trial work, one of the appellate judges took me to lunch one day and he said, “You’re not going to understand this now but you will later.” He said, “Never write down your questions because if you ask a question you’ve written down and there’s an objection and it’s sustained and you’re looking at your notes, all you’re going to see is the objectionable question.”
He told me, “Write down the answers you want to illicit,” and that was good advice because I stand there and if there’s an objection, I think on my feet. Here’s the point that I want to make through this witness. How can I rephrase it?
Stephanie Francis Ward: Hmm, Jim, what do you think about that? Do you write down your questions when you’re going to do a trial?
Jim McElroy: Yes, I write down every question and I recognize that I’m–but like Steve says, I never wed myself to a script and we can talk about this later in opening and closings. Should you write them or should you not write them? I write everything, I write them four or five times. I’ll write my questions for a witness four or five times and tweak them and think about certain ways in which I want to phrase.
Some questions on cross examination, the phrasing of a question may be very important, but I don’t wed myself to the script. But more to your question of thinking on your feet, I don’t know how one prepares oneself to think on their feet other than to prepare, prepare, prepare. Know your case. Know the other side’s case as well as you possibly can. You can anticipate objections.
I’m an idiot when it comes to the evidence code and have been for 30 years and so when I go to trial, I have just a little separate three-ring binder of evidentiary objections that I think might come up; evidentiary objections that I may want to make but also evidentiary objections that may come up and how I might respond to them. I think what might the opposing counsel object to in this particular line of questioning and how will I respond to that if the objection, even though I think it may be ill-founded, if the judge disagrees with me, how am I going to deal with that?
You try to anticipate ahead of time. But thinking on your feet means you’re being thrown that unanticipated thing that you didn’t expect and the best way to think on your feet I think the better you know the case the better you’re going to be dealing with unanticipated things that a witness may say or that may come up. The better you know your case, the better you know the other side’s case the far better you’re going to be at thinking on your feet.
Stephen Hurley: I agree, Jim.
Barbara Ashcroft: I think that Steve really hit the nail on the head here but I just want to follow up on that. In answer to your question about thinking on your feet advocacy, there are things that you can control in the courtroom and as Steve just talked about the evidentiary issues. If you are prepared to admit evidence in a way that is organized, if you know how to admit evidence through memorizing your litanies, if you are prepared in a way that you know your case inside out, control the things that you can in court and the things that you can’t, know your case well enough to be able to react accordingly.
Stephanie Francis Ward: Let me ask you this, Barbara, in terms of this prepare, prepare, prepare, is that old cliche question: Should you ever ask a question you don’t know the answer to? Perhaps it’s worth it to take that risk. What do you think?
Barbara Ashcroft: Well, I can only speak to my own experience and what I teach here and having asked a question I did not know the answer to during a very serious rape trial, I won that case. However, I always would go and talk to the judge afterwards and the judge said to me, “Barbara, you asked a question you didn’t know the answer to. Why did you do that?” I said, “Your Honor, I basically boxed him into it and I felt, you know, it wasn’t going to matter”.
As the judge pointed out to me, “Barbara, it didn’t matter in this case but it may in another one because if the witness had given you the wrong answer, you did not have a signed statement that you could impeach the witness with. So why would you possibly take the chance of asking a question you didn’t know the answer to?” From that wisdom, I am certainly on the side that I would never ask the question if I didn’t know the answer–and I learned the hard way.
Stephanie Francis Ward: Steve and Jim, what do you think?
Jim McElroy: Well, this is Jim. I’d agree with that, except I’m sure Barbara would concede, we never say never in trial work. But I would agree with her that I would say to any young or new lawyers most often, almost never, do you even want to ask a question you don’t know the answer. But I’ve found myself, maybe in every trial, or at least every other trial maybe, having that urge to ask it and thinking through, “okay, what happens if I get the wrong answer?” and doing it anyway because I’ve analyzed my risk benefit.
I’ve done the risk benefit analysis and I think even if I get the wrong answer, I can’t think of an example, but maybe he or she, the witness, is going to look lose credibility if they give me the answer I don’t want. I think there are exceptions to the rule and if you just say to a lawyer never do that they may miss an opportunity where you could actually score some points, even though you’re not exactly sure what the answer’s going to be.
Stephen Hurley: You know you’re both correct. This is the part where if you watch a program like some young people do on MTV–what was the program? Jackass?–it starts with the disclaimer: Kids don’t try this at home. That’s the disclaimer we’re giving with this. Don’t try this at home. You’ve just heard stories about how with preparation and planning, but I’m going to tell you also with experience, there may come a time in your life where you feel, “I can ask this question.” But it’s not a time that comes without preparation, planning and experience. So, given that this is talking to lawyers today who are having their first trial, kids don’t try this at home.
Barbara Ashcroft: Yeah, absolutely. That’s a wonderful way to do it. You know what? Come on back in 10 years and then we’ll revisit it.
Stephanie Francis Ward: Let’s go back to, Jim, you were talking about how you prepare and you bring your evidence code with you, how do you stay organized during trial with all the messiness and uncertainty that usually goes with trials?
Jim McElroy: Well, it used to be that three-ring binders saved my life and my career. Now it has more to do with a laptop and electronics than a three-ring binder. But organization is really, really important for that young lawyer going into their first trial, to have everything organized in a way that makes them the most comfortable to be able to access it. You know, of course, I have my trial notebooks with each witness’ separate tab and the exhibits I’m going to use with the particular witness and the questions, blah, blah, blah.
I have a law notebook for all the law that may come up during the course of the trial that I’m going to want to be able to put my hands on quickly. The evidence notebook, it’s not the code section book, although usually there’s one of those in the courtroom, but if not, I’ll drag one along. It’s a three-ring binder that I’ve hole-punched the evidence code sections that I think are going to relate to my case and the issues that may come in my trial.
Organization, I think the only thing more important than preparation for the new lawyer, or any lawyer going to trial, is organization. You can’t be too prepared and you can never be too organized.
Barbara Ashcroft: That is a great comment. One thing that I want to point out to new lawyers trying their first case is organization is just not about your ability to present the case. But organization goes to the lawyers’ credibility because the jurors are looking at the lawyer’s table and if the lawyer’s table is sort of sloppy and there are papers all over the place and the lawyer is looking through papers and can’t find what they need.
Well, then the jury is saying, “This person isn’t organized, they don’t really know their case. They’re sloppy. It’s a mess.” Jurors look at everything that the lawyers do from the moment they enter the courtroom until the moment they walk out of that courtroom, so be aware of that.
Stephen Hurley: I agree with that completely. The jurors have x-ray eyes and you have to remember too that trials are boring. When I lecture on evidence, I always say there’s one true objection in the courtroom and that’s “Objection, boring.” They really are boring. Jurors’ eyes wander and they blame lawyers when things get too boring and they will always blame the disorganized lawyer for wasting their time whether it’s true or not.
What you said about juries seeing this and it affects their perception is absolutely true. You don’t get prepared in order to impress the jury. You get prepared to win your case, which involves at times impressing the jury. But you certainly don’t want to give them reason to fault you and by consequence your client.
Jim McElroy: Steve is so right about the boring aspect of trial, and that’s why I write down at the top of my notes for my closing argument and my opening statement, in particular, “brevity is the soul of clarity.” I’m so seldom able to adhere to that, but that’s my goal. That’s why I write it at the top of the closing argument and I write it at the top of the opening to remind myself I don’t have to beat it into their heads fifteen times: brevity goes with clarity.
Stephen Hurley: You’re absolutely right.
Stephanie Francis Ward: Now when you guys spoke and you mentioned young lawyers I’m curious. When you see people who are not necessarily young lawyers, but they’re litigators and because of the way the world has changed, they just haven’t tried a case and they finally get to, say, 10 years out. Do you see common mistakes with that group of folks that maybe haven’t had a chance to try a case until they’re a bit out and more familiar with the law?
Jim McElroy: This is Jim. There are two things that come to my mind immediately and one is just kind of hyper-technical, I guess and I’m sure it varies from jurisdiction to jurisdiction. But I’m amazed at people that are walking into a courtroom to try a case that don’t know how to cross-examine using a deposition, and I think that’s something that frustrates the heck out of judges.
Stephanie Francis Ward: Can you expand on that for us by what you mean?
Jim McElroy: Starting with the depositions, instead of starting with a question, you know, you don’t use a question to impeach a witness about his testimony until you have his testimony. “Did you run through the red light?” “No.” “Would you please refer to your deposition on Page 65 blah, blah where I ask you, ‘Did you run the red light?’ You said yes.” However, it’s handled in a particular courtroom, but I’ve seen guys try to cross-examine people based on depositions by starting with the deposition. The question is now, “In your deposition didn’t you tell me–” You know, that’s just the wrong way to go about it.
Judges in California are very particular about attorneys approaching the witness and handing the deposition, and then wanting to debate giving the witness an opportunity to respond as to why he answered he or she answered the question that way. You don’t give them the opportunity. You use the deposition to slam the door on them. You read the question, “On Page 57, Line 6, I asked blah, blah, blah and you answered blah, blah, blah and you read it. Was that the question I asked and the answer you gave?” “Yes.” “Thank you,” and then you move on.
Barbara Ashcroft: What we’re talking about here is really impeachment issues with deposition testimony and how you’re going to use deposition testimony during your trial. There’s many different ways to use deposition testimony but that’s a clear description of the proper way to use deposition testimony to attack the credibility to impeach a witness and the improper way to do it.
Stephen Hurley: I used to teach trial advocacy, and I moved to evidence. And I moved to evidence for one reason, and that was I was dissatisfied with the way my students had been taught the difference between impeachment with a prior and consistent statement, present recollection refreshed and past recollection recorded. All of which can involve a deposition but it’s done in a different way. Each has a different protocol and what Jim has said is absolutely correct about the protocol for impeaching a witness with a deposition, and it is so rare to see a young lawyer or a lawyer really having his first trial do this correctly. It’s worth putting in the time to learn to do it right.
Barbara Ashcroft: Yeah, because I think otherwise it’s very confusing to the jury. They have no idea what’s going on. They have no idea what the lawyer’s trying to do, and they have no idea where to put this testimony. So there’s a clear litany of how to impeach somebody with a deposition, and I think that Steve and Jim spoke to that, the way that is real in the courtroom and it’s also effective in front of the jury.
Stephanie Francis Ward: Another question, what if you have this trial that’s going to go and you’re pretty sure you’re going to lose it? How do you handle that?
Barbara Ashcroft: Wow, I had a lot of those. I prosecuted sex crimes. I had a lot of those cases. How do you handle it? Well, first of all, in my case because I was a prosecutor, you try to plea it out. But if you can’t get a plea and you need to take it in, you do the very best job that you can do, and you use all the advocacy skills you have, and you’re hopeful. You have to be hopeful that maybe something will happen and the jury will come back in your favor.
I think probably all three of us have tried cases that we thought we were going to win and we’ve lost, and ones that we thought we were going to lose and we won. You really never know, because the jury is–you know my pop would say it’s like a can of worms: You open it up and you don’t know what’s going to pop out. Jurors often surprise you, so you give a hundred percent and you see where it takes you.
Jim McElroy: From the civil side, and there’s two ways to look at it from the civil side. From the plaintiff’s side, if you got a case that you think you’re going to lose because you get into discovery, you take the depositions and you find out what you thought was a good-looking case turns out to be not so good-looking. Obviously, you try to settle the case and get out of the thing if you can. If it’s really clear to you that it’s a loser, you shouldn’t prosecute a case that doesn’t have any merit.
If you’re on the defense side, sometimes you don’t have that choice. Of course, you try to settle it if you think you’re going to lose it. But if the other side’s not going to settle it for a reasonable amount of money, you have to go to trial. That raises the other issue in civil matters, and that is managing the expectations of your clients. Some young lawyers, I think, make the mistake of, you know, they need the business, they need the client so they become the cheerleader for the case because that’s what the client wants to hear.
They talk about how great the case is, if it’s the plaintiff’s case, or if they’re on the defense side how, you know, “this is a slam dunk defense and we’re going to kill them on this” and blah, blah, blah. That’s not managing your client’s expectations and that’s not doing your client any favors. You need to start managing the client’s expectations from the very beginning, but usually it’s difficult to tell how things are going to pan out in any courtroom.
But you certainly know a lot more after the discovery is in process and completed through depositions, etc. That’s when you need to, you know, revisit the issues with your client and make sure they have a good understanding of what the risk-benefit analysis is going in to the courtroom for the trial. I think on the civil side, the very important thing is to manage the expectations of your clients.
Stephen Hurley: It’s no different on the criminal side. The real question if we’re giving this podcast for people who are doing their first trial or trials isn’t “what do you do when you have a case that you know you’re going to lose” as much as it is “how do you know when you have a case that you may lose or stand a chance to lose?”
Barbara Ashcroft: Very true.
Stephen Hurley: What Jim just said about not having the perspective of experience to help answer that question is what really makes it tough. What I urge young lawyers to do is get feedback–and not simply from other lawyers. In preparing your case, you kind of take the show on the road. When you go over to a friend’s house for dinner, and they’re not a lawyer, or you go out for drinks or you do something social with them and they say, “Hey, what are you working on?”
This is your opportunity to test your theories of the case and to lay it out in front of someone who had never heard about it before. Believe me; if you don’t have a leg to stand on, they’re going to let you know one way or another. That’s how you gain the perspective to know whether you have a case that you’re going to lose.
Jim McElroy: May I follow up one other thing with–
Stephanie Francis Ward: Sure.
Jim McElroy: What Steve said, which I think is so important and that is, you know, in this high-tech fancy world of high-level civil litigation, I keep hearing about focus groups and focus groups, you know, you’ve got to hire all these people and do all these focus groups and figure out what your jury’s going to do. Steve is telling us how we have been doing focus groups since before we walked into our first trial, hopefully, and that is talking to your grandmother or your spouse or your friend or your buddy, non-lawyers. That’s the cheapest focus group you can get.
That’s how to get…because we’re all advocates, and we get wrapped up in our own cases, and we may not see them as objectively as we should. Running your cases by non-lawyer other people outside the legal profession is great and extremely inexpensive. As Steve says, maybe it costs you a pint of beer to buy your buddy, but an extremely effective way of getting a little objectivity, insight into your case.
Barbara Ashcroft: And the key there is they have to be non-legal people, you know, no law clerks or legal secretaries. You really want somebody that is objective and away from the practice of law.
Stephanie Francis Ward: Okay, and that’s everything that I have for you today. I want to thank you all so much for your time. I think this was a great discussion.
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Stephanie Francis Ward
Barbara Ashcroft directs the trial advocacy program at Temple University’s Beasley School of Law. Previously, she headed the sex crimes unit of the Montgomery County, Pa., district attorney’s office.
Stephen P. Hurley is a partner with Hurley, Burish & Stanton. The Madison, Wis., litigator handles civil and criminal defense matters.
James McElroy is a civil litigator in Del Mar, Calif. The sole practioner is also a board member at the Southern Poverty Law Center.