These days, bona fide trial attorneys could have a whole career of bench trials and not a single jury trial. Or they could find themselves 15 years into their careers, having tried dozens of cases, faced with an experience that years ago was the exclusive province of the young lawyer: their first jury trial. Which is where I find myself now.
I have plenty of bench trial experience. I’ve tried numerous cases on a variety of legal issues in federal and state courts. I am familiar with most of the judges in my judicial district, and I generally know what to expect when I’m preparing for trial. But, when the jury is added to the mix, I’m back at square one. How do I pick a jury? What am I allowed to ask? What am I not allowed to ask? How long does it take? Is voir dire reported? How do I present my opening statement? How do I examine my witnesses so the jury is engaged and not bored? What about objections? How much can I say in support of my objections in front of a jury? Will I remember everything I need to remember? Will they like me?
Trying to answer these questions, I collected and reviewed reams (or megabytes) of information from various sources whose advice ranged from get enough sleep and exercise to write it down to write it down but don’t memorize it to jury selection is about figuring out who will vote against your client no matter what. Some of this advice resonated and some left me scratching my head. This article presents what I found to be the most useful advice in everything I heard, read, and learned. I’ve included a list of some of the free resources at the end.
One resource that won’t be on the list, however, is my first-choice source of information and advice: people. My former boss and mentor spent years as an assistant U.S. attorney before the jury trial became an endangered species. He has more jury trial experience than anyone I know. So I called him. Then I called a colleague who had just finished a jury trial and asked for her input. The best advice I can give you is this: Never be afraid to ask a trial lawyer for advice. We make our livings—at least in large part—trying to persuade other people that we’re right. A trial lawyer will almost always be happy to guide you. The list below is distilled from the experience of many other trial lawyers, some of whom I spoke to and others whose advice I read.