What to Teach
An experienced trial lawyer will have established a process for preparing for trial and will impart that process to his or her less senior colleagues. In broad strokes, such a process will include the following steps:
Understand the art of persuasion. Persuasion requires character, competence, and conviction. To be a persuasive lawyer, you at all times must reflect character—honesty and trustworthiness; competence—detailed knowledge of the facts and the law; and conviction—sincere belief in your client's case. Aristotle called this ethos, logos, and pathos. Excellent trial lawyers understand and reflect these principles at all times.
Establish your theory of the case. Everything in an effective trial strategy must advance your theory of the case. That theory may evolve as facts emerge in discovery and as the court makes pretrial rulings on issues of law, but the gist of the theory of the case usually stays relatively constant from beginning to end. The theory is constructed on a foundation consisting of the facts shown by the evidence, as applied to the elements of the claim or defense. But that is only the foundation. The theory of the case explains not only why your client should win, but also why that outcome is fair and just. That theory is the heart of the case, and if something does not clearly and directly advance that theory, or discredit the other side's theory, it is a distraction and will reduce your persuasion.
Establish your chronology. An effective trial lawyer must be a good storyteller. The case at trial tells a story that, like almost any good story, unfolds in chronological order. An effective trial lawyer will, using the available evidence, construct a chronology of events. The chronology will be clear, compelling, and reflect your theory of the case. It must not contain irrelevant facts. Every event or occurrence in the chronology will establish an important fact that supports your theory of the case. The chronology provides the mechanism by which the effective trial lawyer will convey his or her theory of the case to the jury in a clear and compelling way.
Establish your trial proof checklist. This document sets forth each point that you must prove to win your case. It also sets forth the specific evidence that you will use (testimony and documents) to establish each point. The trial proof checklist is indispensable to a clear and well-organized case.
Make it simple and direct. Sometimes lawyers are admonished to "keep it simple." That can be a little misleading, because a lawyer's challenge is not to "keep" something simple, but to make it simple—that is, to pare down a mountain of facts, arguments, and legal rules into a simple theory of the case. That is often a laborious process, and it requires a significant amount of self-discipline and consistency. Omit unnecessary facts, arguments, sub-theories, or alternative theories. Every part of the case, and every exhibit shown to the jury, should clearly and directly advance your theory of the case. While repetition can be useful in moderation, avoid needless redundancy.
Practice each part of your trial. Outline the specific points to establish for each part of your trial. For direct and cross-examinations, outline clear points to establish with each witness. Each point should be specifically listed in your trial proof checklist.
Know the rules. Any effective trial lawyer must have a comprehensive knowledge of the federal and state rules of civil procedure, as well as the court's local rules and the judge's standing order. Through experience, an effective trial lawyer will gain not only thorough knowledge of the rules, but also an instinctive sense of how the rules can be used effectively to advance his or her case.
The process for trial preparation described above should be carefully taught to each attorney at the firm. Of course, less senior attorneys must be taught how to effectively deliver opening and closing statements and how to effectively conduct direct and cross-examination. A full discussion of those mechanics is best suited for a separate article on that subject.
How to Teach It
Trials provide many opportunities for sharing your skills with others. Of course, cases are usually tried by teams of lawyers, some of whom do the work of examining witnesses and arguing to the jury at trial, while others draft jury instructions and motions in limineor prepare graphic exhibits. In every aspect of trial work, ranging from the direct examination outlines to the proposed jury instructions, the points above must be constantly emphasized: advance the theory of the case, convey the chronology, and pare down complexity into simplicity. These principles must be reinforced to the entire team at every opportunity.
Trials are excellent learning opportunities even for lawyers who were not on the trial team. Junior lawyers should be involved in every aspect of trial preparation, even if the firm cannot bill for their time, and the more senior attorneys must explain to the more junior attorneys why things are done the way they are.
After every trial, the trial team should hold a postmortemmeeting with all attorneys in the firm to discuss what went well and what didn't go as well in the since-concluded trial. A litigation firm also should hold regular CLE seminars for its attorneys to hone direct and cross-examination skills, development of the theory of the case, and other trial skills.
Experienced trial lawyers have a responsibility to teach their skills to less experienced attorneys. The long-term survival of a litigation firm demands it. Good trial lawyers share those skills at every opportunity both directly and through example.
Keywords: litigation, solo practitioners, small firms, young lawyers, experienced attorneys, trial practice