August 23, 2018 Articles

Nine Divine Tips for Trial Attorneys

Seasoned trial attorneys offer concrete advice and tips for trying cases.

By Robert Dixon

Because trial skills are vital to thrive in our highly competitive profession, we took a moment to meet with current and former trial attorneys. Here, these elite attorneys offer tips based on their frontline experience in countless trials.

Civil Cases Are All about the Benjamins
As R. David Ware explains, “Civil cases are about money, pure and simple. Do not get sidetracked on other issues. Either the jury will award money or they will not. Trying to make the trial about something else—‘coincidence,’ ‘inconsistencies,’ or ‘credibility’—will be lost on the jury. The jury’s unwavering focus will be on whether to award money, and no matter how the trial ebbs and flows, your focus must remain on whether you are making headway on the money issue.”

Preparation, Preparation, Preparation
The Honorable Chisa Putman has seen trial preparation from all sides—plaintiff, defense, as well as from the bench. According to Judge Putman, “There’s a difference between merely preparing and effectively preparing. You can research for weeks or months prior to the trial, depose for months on end, but none of that matters if the judge and/or jury cannot decipher it from your actions. Not only do you have to collect the information; you need to organize the information so that it flows, and this includes witness lineup, questions for the witnesses, and presentation of evidence. It is highly disappointing and distracting to see an attorney fumbling through paperwork because he or she is unorganized.”

Avoid Picking a Jury in the Afternoon
“It’s not good to pick a jury in the afternoon,” according to Alicia Wilson with Sagamore Development Company, because jurors “are tired and they think that they are going home. If you pick in the afternoon, they are not happy to be chosen at that point. If you ultimately have to pick a jury in the afternoon, do whatever you can to delay opening statements until the following day.”

Observing Nonverbals Is the Key to Jury Selections
Alicia Wilson recommends that lawyers should focus on potential jurors’ body language as much as (if not more so than) their actual responses during the voir dire. As Alicia explained, she begins to determine if she wants to strike a potential juror when the jurors stand up and read their numbers. Then she observes their behavior: “Do they want to be there? Do they seem interested? What’s their body language? Are they focused? Do they seem like they want to participate? Examine how they look at your client. Are there any cues that say they are favorable to your client or not?”

Follow the Ten Commandments of Opening and Closing
The “Ten Commandments for Opening and Closings” are broken down into two categories—Thou Shall Not rules and Thou Shall rules—according to David Ware.

The Thou Shall Not rules are the following:

(1) Thou shall not make a promise you cannot keep or say you kept a promise you did not keep.

(2) Thou shall not use words which require any of the jurors to wonder what the word means.

(3) Thou shall not be boring.

(4) Thou shall not apologize for being unable to show them essential evidence. If you start a sentence with “I really wish we could have. . . ,” you are headed for a loss. Jurors expect you to know the rules and to know what is and is not coming in. Trying to imply that the old mean judge kept you from making your case will garner no sympathy from jurors.

(5) Thou shall not major on the minors. OK, so a witness made a minor error, which does not change whether money should be awarded. Just because you are so proud of yourself for having your Johnny Cochran moment, do not get so consumed by it that you neglect the other essential proof you produced; learn the difference between a headline and a footnote, and focus on the headlines.

As for the Thou Shall rules, they are as follows:

(6) Thou shall arm your advocates with ammunition. Tell your advocates on the jury the three reasons you win. Your advocates in the jury room will fight for you if you give them ammunition. Without it, they will wilt in the face of adversity in the jury room.

(7) Thou shall acknowledge weaknesses early. Admit where you failed and why. Jurors are experts at reminding each other where you failed, but if you have already done so, it takes the sting out of the issue.

(8) Thou shall compliment your opponent’s presentation while at the same time taking a cheese grater to its meaning. The two are not mutually exclusive. For instance, you can acknowledge that her expert was well educated and articulate but failed to consider essential matters before reaching her conclusion.

(9) Thou shall know when to shut up. Try not to repeat yourself unless you are doing it as a thematic device for the purposes of juror recall.

(10) Thou shall act alive. Do not be a stiff. A jury trial is an action movie. The jurors expect action in every scene. If not, they blame the director—you—not the actors or the writers. No one is suggesting that you do a magic show or a juggling act, but the last thing a juror wants to do is be faced with how to stay awake.

The ELMO Is Dead
Mastering the use of modern technology is key to trying cases in 2018 and beyond. As Reginald Roberts explains, lawyers must “connect with jurors, and hold their attention, through platforms that are familiar to our audience. ELMO is dead. Presenting evidence using iPads and tablets, if done properly, is efficient, visually engaging, and familiar to every juror who uses a mobile device.”

Effective Story Telling Requires Visual Aids
According to Ashley J. Heilprin, “demonstratives have an impact on a judge’s or juror’s ability to understand your case in a clear and simple way that a verbal description sometimes loses, particularly with complex or technical issues. Effective visual aids signal to the viewer the key message and should not be overloaded with complex terms or overly detailed diagrams, which will only confuse the audience. If you have a complex diagram or image that you want to show, consider using tools such as color coding or zooming in to highlight the particular portion that you want the audience to pay attention to. Practice using the visual aid and equipment in advance of trial to tweak the flow of the oral presentation and any elements of the demonstrative that might be difficult to comprehend or read. Using the demonstratives while preparing your witnesses will also help to ensure that the witnesses’ testimony comes across naturally with the use of the demonstrative.”

Take Trial-Ready Depositions
Alicia Wilson recommends that lawyers should “structure the questions you pose at depositions as if you are asking them at trial.” In fact, in addition to the typical deposition outline, Alicia recommends that attorneys craft questions before the deposition on key points so that “when the same question is asked later at trial, they have the ability to possibly impeach the witness properly at trial.”

Engage Tech Support Early
Javier Rivera with Southern California Edison Company recommends that attorneys engage their in-house person or outside vendor that will assist with the trial presentation (e.g., trial director) early—if possible while the case is still in its infancy. In doing so, the person providing you with tech support will be intimately involved with the case and will likely know it backwards and forwards. As a result, the presentation of your demonstratives and evidence will be virtually seamless, as your tech support will know which slides are next and will be able to anticipate your next move. “Having such an effective relationship is difficult to achieve if you wait until the eve of trial to engage your tech support person; the cost differences between retaining that person early or late in the game are minimal, and any additional costs are worth it in the end,” according to Javier.

 

Robert K. Dixon is with Wilson Turner Kosmo LLP in San Diego, California.

 


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