Trial Practice

Articles

In-depth analysis and practical advice on topics relevant to your practice. Find all of the Trial Practice Committee’s articles in this archive.

2019

Can You Turn a Failed Mediation into a Trial Asset?
By Anne McClellan – July 9, 2019
Learn how to treat mediation as a mini mock trial, streamline the case, and use the mediator as a neutral expert.

How to Play Injunction Poker
By Sophia Jafrul – July 9, 2019
Be prepared to have your hand—or your adversary’s hand—called early.


A Word of Caution Against Stipulating to a Judgment or Order Reserving Issues for Potential Future Appeals
By Phillip J. DeRosier – July 9, 2019
Appellate courts see it as giving rise to potential piecemeal appeals, which are highly disfavored.

Tips for Using the Foundational Voir Dire
By John McNichols and Joshua Tully – February 21, 2019
Learn to use an overlooked tool to keep bad documents out in criminal cases.

Closing Arguments: Common Pitfalls and Pointers
By Lauren Reynolds and Bryan Gottfredson – February 21, 2019
Ignorance of what constitutes improper conduct during closing can have a severe detrimental impact on a client’s case.

Tips for Crafting Motions in Limine: The Good, the Bad, and the Underrated
By Sarah E. Epperson – February 21, 2019
Knowing that a motion in limine may be used offensively as well as defensively is only half the battle.

Taming the Feels: Juror Emotion in Catastrophic Injury Trials
By Melissa M. Gomez – February 21, 2019
While sympathy toward a plaintiff is an important issue to explore, our research has found that anger and a desire to right societal wrongs more strongly affect juror perceptions.

2018

Musings on the Unpredictable Practice of Jury Selection
By Samuel W. Silver – October 30, 2018
Or, "Ought there be a law?"

What a Trial Looks Like from a Juror's Point of View
By John Branson – October 30, 2018
Viewing it from the inside, a seasoned litigator sees the genius in the jury system.

How to Give Associates Court Experience in an Era of Diminishing Trials
By Anne E. McClellan and Maxwell W. Mahoney – October 30, 2018
Firms that actively develop young associates into trial attorneys will have a competitive edge over those that fail to do so.

How to Manage Obstacles When Across the Aisle from a Pro Se Litigant
By Charitie L. Hartsig and Kate J. Merolo – October 30, 2018
Our advice? Get a trial lawyer!

How Not to Fail at Trial Because of Your Expert: Part 2
By Jeffrey D. Gardner, Jimmie Pursell Jr., and Sumon Mazumdar – July 31, 2018
The second in a three-part series addressing best practices when working with expert witnesses.

Tips for Avoiding the Mini-Opening Trap
By Stephen M. Duffy – July 31, 2018
Why putting on a "good" mini-opening is the last thing you should do.

A Guide to Implicit Bias and Explicit Views of Lawyers' Race and Gender
By Cynthia Cohen – July 31, 2018
Read this original study to test mock jurors' views of lawyers.

Woodshedding, Coaching, or Tampering?
By David C. Kent – July 31, 2018
The line between "preparation" and coaching (or even tampering) can sometimes become blurred.

The Fine Line Between Proper Communication with Class Action Plaintiffs and Improper Solicitation
By Wendy N. Enerson – March 23, 2018
Learn the rules and see how courts have analyzed allegations of improper class action solicitation.

How Not to Fail at Trial Because of Your Expert: Part 1
By Jeffrey D. Gardner and Jimmie W. Pursell Jr. – March 23, 2018
Proper selection and preparation of an expert is not likely to win your case, but not doing so can be fatal.

Time’s Up on the Lack of Female Trial Attorneys
By Anne E. McClellan – March 23, 2018
Why is this and what is the solution?

Why Mock Trials Are Important
By Raquel H. Crump – March 23, 2018
The top four reasons why you should consider a mock trial before your next trial.

2017

How to Achieve the Mandate of Proportionality Through Phased Discovery
By Robert E. Sumner IV and Charles R. Scarminach – November 30, 2017
Read about cases that demonstrate the benefits and flaws of this tool.

A Cautionary Tale About Poor Client Selection and Lack of Candor
By Theresa W. Parrish – November 30, 2017
An attorney pays a high price for bad choices.

What to Expect When You’re Expecting a Drug or Device Expert Deposition
By Tarifa B. Laddon and Blake A. Angelino – November 30, 2017
Eleven quick tips for setting up for trial.

Lawyers Investigate Juror Without Court’s Knowledge or Permission
By Michael R. Lied – November 30, 2017
Learn how Exxon Mobil counsel put a case at risk with potential juror intimidation.

Beyond Wordland: How Litigators Can Break Their Reliance on Words, Logic, and Checklists When Speaking with Jurors
By G. Christopher Ritter – September 17, 2017
Most jurors rely more on intuition, emotion, a basic sense of fairness, and common sense to learn and make decisions.

How to Determine and Demonstrate the Reasonable Settlement Value of Your Case
By Douglas L. McCoy – September 17, 2017
The settlement of a lawsuit, reduced to its essence, is a purchase and sale transaction.

Emerging Trends in Post-Spokeo FACTA Litigation
By Jeffrey D. Gardner and Lindsay Leavitt – September 17, 2017
Purely technical violations of statutory rights will not likely result in Article III standing.

Ten Not-So-Obvious Trial Tips That Even Experienced Attorneys Can Use
By Bradley M. Yusim and Kathy Hunt Muse – March 1, 2017
Whether you are preparing for your first trial or you’ve done hundreds, there is always room for improvement.

Top 5 Tips for a Powerful Demonstrative in Medical Drug and Device Trials
By Tarifa B. Laddon and Amanda Semaan – March 1, 2017
Don’t just say it. Show it.

What Barbara Walters Can Teach Us about Direct Examination
By Michael J. Satin – March 1, 2017
The television legend's 1999 interview with Monica Lewinsky is something all lawyers should watch.

Baseball and Your Next Mediation
By Theresa W. Parrish – March 1, 2017
Game theory and off-season negotiations offer even the slightly game-weary practitioner some fresh approaches to successfully mediating the difficult case.

2016

A Guide to the Offer of Proof
By Christin J. Jones – August 31, 2016
Learn how to use this largely neglected technique when evidence is struck from consideration.

When Do You Need an English Translator in Civil Depositions?
By Robert E. Sumner, IV, and Charles R. Scarminach – August 31, 2016
There is little related case law to guide this decision, but often it's simply a question of fairness.

Tom Brady, Roger Goodell, and Your Next Arbitration
By Theresa W. Parrish – August 31, 2016
Legal lessons learned from Deflategate.

What Michael Jordan Can Teach Us About Cross-Examination
By Michael J. Satin – April 11, 2016
For starters, His Airness never stopped working on the fundamentals.

Resident Defendant Exception for Removal: A Clever Move or Legal Gamesmanship?
By Robert E. Sumner, IV, and Jennifer Braccia – April 11, 2016
You might win the admiration of the judge and opposing counsel in the procedural chess match.

Swamp Things: Some Highlights and Lowlights of the Reptile Theory
By By Theresa W. Parrish – April 11, 2016
The old axiom "litigation is preparation" has never been more true.

2015

How Judges Have Prepared for the New Federal Rules Amendments
By Theresa W. Parrish – December 17, 2015
Attorneys may want to consult some of the same written resources that the judges already are using.

How to Give Your Case a KISS
By Robert L. Horn – December 17, 2015
Tips for being an effective advocate.

Tips for Young Lawyers: Improve Responsiveness to Impress Clients
By Ryan A. Starnes – September 10, 2015
Excelling in an area that most attorneys struggle in is a good way to win over your clients.

Can You Communicate with Your Witness after Cross-Examination Has Begun?
By Sanket J. Bulsara and Ian Coghill – September 10, 2015
Conventional wisdom says no. But what is the source of this "wisdom"?

Tips for Dealing with Exorbitant Expert Witness Fees
By Theresa W. Parrish – September 10, 2015
Learn how to find relief available under the rules of civil procedure and underlying case law.

Update on Using U.S.-Based Discovery in Foreign Proceedings
By Jim Shelson – September 10, 2015
Learn what the federal circuit ruled in a recent case.

The Art of the Blind Cross-Examination: 8 Tips for When You Don't Know the Answers
By Sanket J. Bulsara and Adam Hornstine – May 28, 2015
What is an attorney to do when he or she confronts a witness who has not yet been deposed?

Courtroom Ethos: How to Win Over a Jury with Credibility and Respect
By Wayne Morse – May 28, 2015
Win your case, with a few tips from Atticus Finch. And Joe Pesci.

Requests for Admission: The Forgotten Weapon in the Litigator's Arsenal
By Robert E. Sumner, IV and Deven Gray – May 28, 2015
Learn to use this powerful but often neglected tool.

What Does the Plummet in Oil Prices Mean for Litigators?
By Nicole Ruble Metcalf – May 28, 2015
New hotbeds of litigation may emerge from "Oilpocalypse."

Top 10 Business Development Tips for Young Lawyers
By Jim Shelson – March 3, 2015
Competition for legal work is intense. Learn how to set yourself apart.

Five Tips for Developing and Presenting Visuals to Judges and Juries
By Jeremy T. Brown – March 3, 2015
Forget bullet-point lists. Learn how to really communicate with jurors.

New Tips for Examining Your Own Witnesses and Using Their Depositions at Trial
By Sanket J. Bulsara and Ari J. Savitzky – March 3, 2015
Following recent amendments to the Federal Rules, it may be worth rethinking traditional approaches.

Dealing with Difficult Opposing Counsel
By Theresa W. Parrish – March 3, 2015
Learn how to stave off inappropriate behavior from the other side of the table.

2014

Law School and Lessons Learned
By Denny Chan – December 1, 2014
A young lawyer reflects on his three years at a brand-new law school.

Update on the Proposed Changes to the Federal Rules on Discovery
By Theresa W. Parrish – December 1, 2014
Some judges are already applying the principles underlying the proposed changes to streamline discovery.

Deposition Tips for Young Lawyers
By Jim Shelson and R. Gregg Mayer – December 1, 2014
Get organized, and keep it simple.

What Do You Do with an Inconsistent Jury Verdict?
By Sanket J. Bulsara, Chris Casamassima, and Laura Schwalbe – December 1, 2014
Don't get caught flatfooted after a trial is over.

The Empty Chair: Party Officers and Amended Rule 45
By Jason M. Knott – September 9, 2014
Are officers and directors of a party corporation required to testify at trial?

Telling Stories to Reverse the Tide: How Minorities Change Majorities
By Sidney K. Kanazawa and John G. McCabe – September 2, 2014
We use narratives to categorize, organize, and interpret incomplete information.

Habit and Routine Practice Evidence
By Ben Stone – September 9, 2014
An exception to the bar against proof of character.

Three's a Crowd: The Impact of Third-Party Observers on Neuropsychological Exams
By Matthew R. Shindell, Robert J. McCaffrey, and Graham M. Silk-Eglit – September 9, 2014
Research shows that third-party observation can affect performance on an array of tests.

Tips for Young Lawyers to Acquire Litigation Experience
By Brandon C. Helms – May 23, 2014
Increase your odds of doing the work you always dreamed of doing.

Attorney Fees Now Easier to Recover in Patent Litigation
By Jim Shelson – May 23, 2014
Two recent Supreme Court rulings help prevailing parties in cases against patent trolls.

Five Tips for New Attorneys Ready to Practice in Personal Injury Law
By Adam S. Goldfarb – May 23, 2014
Get pointers on how to handle auto accidents, worker's compensation, and other types of cases.

Pleading a Claim under the False Claims Act
By Alan Levins and Alison Cubre – May 23, 2014
Learn how to navigate this important but strict statute from the Civil War era.

No Attorney-Client Privilege for You: The Crime-Fraud Exception
By Adam D. Fuller, Elizabeth Shively Boatwright, and Bryan E. Meek – April 8, 2014
One of the most critical and time-honored tenets of law is not absolute.

Issues in Presentation for a Young Lawyer in Trial Practice
By Sarah Santos – March 12, 2014
A new litigator's views on important early career lessons.

The Latest on the Recoverability of E-Discovery Costs in Federal Litigation
By Jeremy Brown – March 12, 2014
Varying interpretations of U.S. Code Section 1920 have resulted in confusion about attorney awards.

Fifth Circuit Affirms SPEECH Act
By R. Gregg Mayer – March 12, 2014
The decision may mark the end of so-called libel tourism.

Amendments Streamline FRCP 45 Subpoena Power
By David C. Kent – March 12, 2014
The changes to this misunderstood and misapplied rule seek to simplify and clarify collection procedures.

2013

Five Fast Tips for Young Trial Lawyers in Court
By Paula H. Holderman and Judge James F. Holderman – December 18, 2013
Learn the fundamentals from a husband and wife team with a collective 50 years of experience.

Spoliation and Facebook: Don’t Toss that "Page" During Litigation
By Ben Stone – December 18, 2013
One thing is clear: Courts will not countenance deletion or deactivation of a Facebook page.

Attorney Fees in the Context of a Rule 68 Offer
By John B. Pinney and Jeremie W. Imbus – December 18, 2013
Navigate this often confusing Federal Rule of Civil Procedure.

New Spoliation Rule One Step Closer to Enactment
By Charles S. Fax – December 18, 2013
The amendments could have a greater impact on the bar in the long run than the various changes to the other rules.

The 2010 Amendments to Expert Discovery Rules: Yesterday, Today, and Tomorrow
By Joseph L. Meadows and Michael L. Kuppersmith – September 25, 2013
Leverage the benefits of your expert and expose the weaknesses of your opponent's expert.

Email and the Business Records Exception
By Jason Knott – September 25, 2013
When trial rolls around, getting emails before the jury isn't always so easy.

Untangling Appellate Jurisdiction
By Michael R. Lied – September 25, 2013
The key to cases involving multiple rulings on multiple claims? Simple: find the final judgment.

Preserving Pretrial Issues for Appeal
By Ashley Felton Eckerley – July 9, 2013
Litigants should be aware of hazards in the Federal Rule of Evidence 103(a) post-2000 amendment.

Employer Botches Offer of Judgment
By Michael R. Lied – July 9, 2013
Inartful drafting required an employer to pay the plaintiff's attorney fees, too.

My Odyssey: From Litigator to Litigation Consultant
By Daniel J. Bender – March 5, 2013
A litigation graphics expert describes his unexpected career path.

Effective Communication in Expert Testimony
By Denise Montiel – March 5, 2013
A trial consultant explains how to coach expert witnesses in communicating with jurors.

The Billion-Dollar Question: Bias or Misconduct?
By Cynthia R. Cohen – January 17, 2013
Federal court dismisses Samsung's motion for a new trial claiming juror misconduct by foreperson.

No Waiver of Attorney-Client Privilege for Extrajudicial Disclosures
By Michael R. Lied – March 5, 2013
The Illinois Supreme Court rules on subject-matter waivers.

2012

Fraudulent Communications Result in Personal Jurisdiction
By Michael R. Lied – December 14, 2012
A breach-of-contract case about a property deal gone awry provides a good example of how a defendant's fraudulent acts can subject someone to a state's personal jurisdiction.

Learning to Love Direct Examination
By Sara E. Kropf – December 14, 2012
Although not as sexy as its sister, cross-examination, effective lawyers know cases are won when one side's presentation is more persuasive than the other side's. Here's how to make this moment count.

Defense in the Age of Social Media
By Angela C. de Cespedes Wenke – December 14, 2012
In this brave new digital world, attorneys are increasingly turning to social-networking sites such as Facebook to prove opponents' claims are baseless or exaggerated.

A Young Lawyer's Guide to Rule 11 Sanctions, Part II
By Melissa L. Stuart – December 14, 2012
A motion has been filed. Now what?

Accurately Predicting the Outcome of Your Case
By Jessica Hoffman Brylo – June 5, 2012
A lawyer's judgement of a case is crucial in knowing how much to settle for, and how to persuade a jury.

A Young Lawyer's Guide to Rule 11 Sanctions
By Melissa L. Stuart – June 20, 2012
As a young lawyer, there is nothing more petrifying than learning that opposing counsel is seeking Rule 11 sanctions against you.

The Golden Rule in Closing Arguments: Is it Still a Rule?
By Anne-Marie Mitchell and Jay Gulotta – February 8, 2012
In most jurisdictions, it is still a rule that trial lawyers may not ask jurors to put themselves in the shoes of one of the parties.

2011

Getting the Best Results from Opening Statements
By David T. Lopez – December 13, 2011
The opening statement is an opportunity to arouse jurors' interest, build rapport, and present the case in a manner that attracts sympathy and support.

Ethical Preparation of Witnesses for Deposition and Trial
By Erin C. Asborno – December 13, 2011
Attorneys must balance their duty to clients with their ethical obligations to the court.

Illinois Supreme Court Clarifies Duty Analysis in Negligent Product Design Cases
By Jason P. Eckerly – December 5, 2011
The key issue in a negligent design case is whether the manufacturer exercised reasonable care in designing the product.

Supreme Court to Review Constitutionality of Health-Care Law
By Jim Shelson – December 5, 2011
The Court grants certiorari to review various challenges to the Patient Protection and Affordable Care Act.

What to Do When the Deal Goes Bad
By Peter French – December 5, 2011
Your preparedness to respond to a client's call for help is critical.

A Young Lawyer's View on the Importance of Persuasive Writing
By Bryan M. Pritikin – December 5, 2011
As an attorney, you must be as confident in your writing as you are in your ability to stand in front of a jury and present your case.

Going Beyond the Complaint in Motions to Dismiss
By John J. Bajger – June 13, 2011
Defendants must thoroughly know when they can refer to documents outside of the complaint in a motion to dismiss.

How to Deal With Unexpected Testimony on Direct Examination
By Hayes Hunt, Esq. – May 31, 2011
You can impeach the credibility of your witness on direct examination with the use of a prior inconsistent statement.

The Employee-Expert Report: To Write or Not to Write?
By E. Barrett Atwood – May 20, 2011
The report offers cost-savings and efficiencies gained from understanding a party's business in advance of litigation.

Beware of the Bankruptcy Court's "Related To" Jurisdiction
By David B. Goodman – April 27, 2011
Disputes that do not fall within the court's jurisdiction are put on hold until the "related" dispute is resolved.

Resolving Cases Early: Effective Negotiation and Mediation Strategies
By David T. Lopez – April 18, 2011
Techniques for resolving a case early are often casually disregarded.

Rethinking the Affidavit
By Erik Stock – March 28, 2011
Amended Rule 56 now specifically provides for the use of unsworn declarations to support (or oppose) motions for summary judgment.

Knowing Your Way Around the Rule 26(f) Conference
By Alan Stevens – January 18, 2011
With proper strategy and planning, the Rule 26(f) conference may be the most advantageous method of shaping the e-discovery process.