One of the major side effects of the vanishing trial phenomenon in federal court is that of the vanishing trial lawyer. As a trial judge for over 26 years (the last 17 on the U.S. District Court bench in Seattle), I can attest that there is an inverse ratio between experience as a trial lawyer and length of time to present your case. Attorneys who have seen jurors reward brevity and efficiency while punishing repetition and inefficiency realize that it isn’t only trial judges who don’t appreciate tactics that waste time.
Experienced practitioners watch the jury and sense when they have seen enough. They also understand that jurors do not reward verbosity or gestures that display a lack of respect for the court, opposing counsel, the witness, or the jurors themselves. A few points of presentation should always be considered by the effective trial attorney.
Keep It Short and to the Point
I always speak with jurors after they render their verdicts. The most common question I get is “Why do the lawyers think we are stupid or aren’t listening? They repeat things over and over and go on way too long.” I know most lawyers do this out of fear that the jurors might not understand what happened if the facts aren’t hammered into their minds, but if you have selected the jury properly, you know they have the capacity to understand and remember without being treated like numbskulls. Use your support staff and non-lawyer family members as sounding boards before and during trial. Ask them to watch the jury as you examine witnesses. Try out your closing argument on them. They will be able to tell you if jurors are nodding, whether there are any puzzled looks, and whether your argument hangs together. If they don’t understand the points you are going to make in closing, it’s time to restructure the argument. If they do understand it, it’s time to refine it to make it even better.
Damn the Depositions and Full Speed Ahead
Maybe it’s because depositions don’t exist in the criminal trial, but public defenders and prosecutors typically don’t fall into the deposition trap when they shift to civil practice. Those who never handled criminal trials, however, are oddly tied to what was said before (in depositions). There is nothing that brings the pace of a cross-examination or trial to a screeching halt faster than when the lawyer pulls out a transcript because his list of Qs and As does not line up precisely with the witness’s testimony.
There are, of course, times when the witness changes position 180 degrees and should be called to account for an untruth. But 90 percent of the time a deposition transcript is used at trial, there is only a slight variation or no real difference at all between what the witness said in the deposition (once the context is established) and what the witness just said on the stand. The “impeachment” falls flat, and the jury is left to wonder what the long-winded detour was all about. To make matters worse, the mechanics of impeachment with the deposition are so awkward, arcane, and odd to jurors that they lose the thread of the testimony. All they really want is a story told in a chronological, understandable manner. Except in the most egregious cases, the use of deposition transcripts has no part in the efficient, persuasive presentation of your case.
Heavy reliance on deposition testimony—both in preparing questions for the witness and in conducting the examination—has another drawback: Lawyers stop listening to what the witness actually is saying in favor of what the witness said before. I have seen lawyers on the verge of getting a significant admission (or at least a favorable statement of fact) out of the witness abandon the line of questioning or pull out the deposition transcript because the answer wasn’t on the list of Qs and As the lawyer had prepared based on the deposition. Listen to what the witness is saying now and adapt your questioning: That is one of the keys to being an effective cross-examiner.
Trials Are Stories: Make Yours More Compelling
Opening statements seem to be extremely difficult for many lawyers. My first bit of advice would be to delete the phrases “The evidence will show” and “We expect the evidence will show” from your statement. They do nothing but break the flow of what should be a unique opportunity to set the stage for the jury. When else will you have a chance to capture the jury’s attention, present an uninterrupted version of the facts, and highlight those parts of the case that you want them to listen and look for as the case progresses? Remember that for most of their lives, jurors get information in narrative form from dramatic presentations in movies or television shows or from reading articles or novels: A good narrative has great impact.
The other purpose of an opening statement is to set up what you will say at closing argument. “Remember last Monday when I told you what we would prove? Well, we upheld our end of that promise by presenting you with the testimony and exhibits that establish our case. Now you must uphold your promise to apply the law to the facts and enter a verdict in favor of my client.”
The Direct Examination of Your Client
Direct examination is, in some ways, more challenging than cross-examination. You cannot lead the witness, limiting the tools you have for eliciting relevant facts. If, despite your hours of preparation, your client is off script and does not understand where you’re going with a question, have a prearranged signal and shift to another more comfortable topic to try to “re-ground” your client. Then slowly work your way back to where things went awry the first time. You must also use the direct examination to prepare the witness for the hostile cross-examination that will be coming after you sit down. Identifying and discussing problematic evidence and testimony on direct will often help avoid a “gotcha” moment during cross-examination and is well worth the effort.
Juries Decide Cases Based on Facts
One of the difficult lessons for trial lawyers to learn is that the courtroom is not a skating rink where jurors hold up cards for style points like Olympic judges after a skater’s routine. You don’t often get direct feedback regarding your efforts. Even if the jurors have conveyed their love for you and their dislike of opposing counsel, victory is not assured: The jury will decide the case based on the facts of the matter before them.
This was never clearer than in an asbestos case tried in my courtroom a few years ago. The plaintiff’s lawyer was obnoxious and disrespectful to the court, to opposing counsel, and to some of the witnesses. During his rebuttal closing argument, one of the jurors stood up—a first for me—and said, “Your Honor, will you please tell counsel to stop screaming at us!” I wanted to go over and kiss the juror, but I merely said, “I think you made your point.” During deliberations, the jury informed me that they were hopelessly deadlocked with one holdout juror. I brought the attorneys into the courtroom and asked if they wanted to accept a non-unanimous verdict (unanimous verdicts are required in federal court in both civil and criminal cases). The defense counsel and their clients, knowing how obnoxious the plaintiff’s counsel had been and figuring that the vast majority of jurors must share the viewpoint of the one who spoke out during closing argument, agreed to accept a non-unanimous verdict. The plaintiff did too. The defense was shocked when the jury delivered a multimillion-dollar verdict for the plaintiff. While the jury hated the plaintiff’s lawyer, they did not hate the plaintiff (who was a wonderful man) or his wife, both of whom testified with great dignity and integrity during trial.
It’s not about you. It’s about your case.
Authenticity Is Better Than Audacity
When lawyers come back from a high-profile trial camp put on by one of the giants of the bar, they sometimes feel the need to work one of the great stories they heard into their next closing argument. Be warned: A story can work beautifully in one context but seem forced, flat, and fatuous in another.
Case in point: A Latino criminal defense lawyer, who wore his long hair tied back with a feather like a Native American warrior, was defending an 18-year-old on trial for conspiracy to hire a hit man. The target of the hit was a drug dealer who had shot and killed the defendant’s older brother in a drug deal gone bad. The client looked 14 and seemed befuddled by everything in the courtroom. The evidence showed that he had been approached by a government agent and arguably coerced into agreeing to pay for the murder (which never took place). In that context, the story told by the defense lawyer at the end of his closing argument resonated in a special way.
A young warrior brave wanted to challenge the veteran, experienced chief of the tribe and figured out a way to expose the chief as not worthy of being their leader. He captured a small bird and cupped it inside his hands as he approached the chief. “Is the bird alive or dead chief? If you are so clever and wise, you will know the answer.” If the chief said the bird was alive, the brave would crush it and reveal the chief was wrong. If the chief said the bird was dead, the brave would open his hands and the bird would fly away. The chief looked deeply into the eyes of the man challenging him and said, “All I can say, my son, is that his life is in your hands.”
This was one of the most dramatic moments I ever experienced in a courtroom. What made it resonate was that it fit defense counsel’s version of the facts perfectly. His client was the little bird, the jury had his life in their hands, and the overreaching government was the brazen brave determined to do anything for a conviction. I am convinced that the story had something to do with the hung jury in that trial.
Years later, I was presiding over a personal injury trial involving a drywaller who fell off a ladder and injured his ankle while working on a construction site. The damages were small and the liability admitted. When the plaintiff’s lawyer got to the end of his closing argument and launched into this same story, I was shocked. The jury looked at him as though he was from another planet. I could barely restrain myself from interrupting and begging him to stop. In my mind, it was the perfect example of how a canned argument can’t be plugged into the wrong fact pattern.
The Bench Trial
Many attorneys approach a bench trial in almost exactly the same way they approach a jury trial. While this is certainly appropriate with regard to your preparation of the case, it does not apply to the presentation of the case. Most trial judges will signal to the parties which areas are of particular interest to the court in coming to a resolution of the case and which issues are not. Too many times I have seen lawyers insist on marching down pathways that I have signaled are not productive, and they do so because they want to “make a record.” With rare exceptions, limiting evidence regarding collateral issues will never be the subject of reversible error no matter how much “record” is created. Just as important, your need to “make a record” is not worth offending the judge. The fear factor that leads lawyers to over-try their cases and repeat their evidence and arguments multiple times before a jury has no place in a bench trial. You know the trier of fact is there, is smart, is listening, has the ability to ask questions, understands what the elements of the case are, and knows who has the burden of proof. Try your case; don’t “make a record.”
Do not fear the trial courtroom. Yes, it is a completely different venue from a boardroom, a conference room, a classroom, an appellate court, or a place of worship. But if you remember the simple rules above, you will be able to “ACE” things in the courtroom. That is ACE as in authentic, civil, and efficient. And while all lawyers want to win for their clients, jurors are not so interested in winning and losing as they are in seeing that justice is done. After all, isn’t that why we all got into this line of work?