Trial advocacy over the centuries has been a safeguard of justice—a core element of a truly democratic society. From the days of Demosthenes, Cicero, and Hortensia (the first woman trial lawyer) to John Adams, Luther Martin, and James Scarlett, great advocates have displayed their passion and persuasive powers in both civil and criminal trials, representing clients from the downtrodden to the unpopular. Though we may not be in that same league, with decades of experience behind us, we can offer some suggestions to help you become a great trial advocate.
There are multiple roads to take. You can—and should—read about the trials and skills of these famous advocates and others. Appreciate how they conducted themselves in court, often with the lives of their clients in their hands. Watch trials in court when you can, and read transcripts or excerpts from them, particularly historic trials. Attend trial-training programs. Think about what you watch and read on your own. Study. Be inspired.
Indeed, inspiration is the first step to becoming a great trial lawyer. You must feel it. It must become part of the fabric of your legal persona. Advocacy and persuasion are the key tools of the trial bar. And when you are inspired, you can inspire others to listen and be persuaded by your advocacy.
Advocacy skills may be innate for some. But no worries! They also can be learned and practiced. Look at Demosthenes, who hid in a cave with pebbles in his mouth to practice. He became known for his great advocacy. Consider reading his speech “On the Crown.” Appreciate the heritage of advocacy and the common law. Its foundation is ancient. It was in the 1160s that Henry II created the King’s Bench, a circuit of judges, juries, and lawyers. The common law embraces the customs, rules, and precedents of the past that govern our lives.
If there is a secret to becoming a great advocate, it is that you need to try cases, and not just a few. It is from being in court gaining experience that you grow and perfect your skill—and learn from your mistakes. “Ah,” you say, “what cases go to trial anymore?” There are thousands of cases that are tried every year in America, most in state courts. If you want to be a great trial lawyer, you have to put yourself in a legal environment that gets you in the courtroom—over and over again. You may have to make short-term economic sacrifices to do so. The long-term benefits to your career as a trial lawyer will be worth it.
You should also seek out a mentor—someone you can learn from and bounce ideas off of, someone who has been around the trial “block” and had great success, someone who can help you plan your future to achieve your goals and work with you to help you achieve them.
Advocacy and persuasion can carry a lawyer to the steps of the trial-lawyer “hall of fame,” but to enter it, a great trial lawyer must adhere to the highest standard of ethics, civility, and professionalism. Ethical issues permeate many trials. For example, what do you do when you know your client on the witness stand is committing perjury? Or consider a modern-day version of the murder trial of Lord Russell in 1840: The lawyer knows the witness he or she is cross-examining is an innocent witness but, nevertheless, by inferences raised by questions directed to the witness, seeks to implicate the witness as the responsible party. Always take the time needed to review potential ethical issues pertinent to your case. And always do the right thing.
Civility and professionalism command great respect and are the sine qua non of a great reputation as a trial lawyer. During trial, the respectful lawyer is the remembered lawyer. Judges never forget. And neither do juries. Avoid ad hominem attacks. Be faithful to your client without compromising your integrity. If you are wrong, admit you are wrong. And when you are right, act with dignity, not disdain.
Professionalism can mean returning a privileged document unread because you knew it was inadvertently produced. It means allowing opposing counsel additional time when genuinely needed to file a paper. It can also mean joining bar associations and serving on committees that allow you to teach and doing pro bono work and engaging in public service or serving on boards of organizations that serve the needs of others.
Remember also that professionalism and ethics encompass keeping current with the law and being competent in matters for which you are representing your client. You can do the former by reading and writing, and teaching or attending seminars. And you must do so to comply with Rule 1.1 of the Model Rules of Professional Conduct: “Competence: A lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.”
Every case in trial should have a theme—a true story to relate.
Pretrial discovery contributes to the refinement of the chosen theme. During pretrial discovery, through the skill of the trial lawyer, facts emerge from which the case theory is formed or refined. Basic pretrial work in civil cases includes production of documents and depositions and, when opposing counsel is acting unreasonably, motion practice to obtain information relevant to a claim or defense. In federal court, Rule 1 of the Federal Rules of Civil Procedure requires courts and parties to employ the rules to achieve the just, speedy, and inexpensive resolution of every action. Honor that command. Again, judges always remember those who represent the highest standards of the bar.
In the federal criminal arena, there is no “discovery.” However, in criminal cases, the prosecutor is required, upon request, to provide defense counsel the substance of any relevant oral statement made by the defendant, before or after arrest, where (1) the response was made in an interrogation by a person the defendant knew was a government agent, and (2) the government intends to use the statement at trial. See Fed. R. Crim. P. 16(a). In addition, under the Jencks Act, 18 U.S.C. § 3500, a federal prosecutor is required to produce grand jury testimony to a defendant. Moreover, in Brady v. Maryland, 373 U.S. 83 (1963), the U.S. Supreme Court required the government to produce, when requested, any exculpatory evidence under Federal Rule of Criminal Procedure 16, a holding echoed in numerous subsequent opinions of courts throughout America.
One important goal of discovery is to learn about the opposing party’s case in detail. Properly framed interrogatories provide the opportunity to obtain, under oath, answers to questions that clarify issues in the case. “Freezing testimony” can be an important goal via either interrogatories or depositions in civil cases. Obtaining relevant documents is important. But bear in mind that if you know that a case is going to trial, avoid the use of a deposition to educate a witness about the questions that will be asked at trial.
If experts are involved, ask yourself whether you need more than the expert report to prepare your trial cross-examination. Again, educating the expert by deposing the expert should be avoided. On the other hand, probing the bases of the expert’s opinion, facts relied on, and assumptions made, including those provided by opposing counsel, are the elements of a strategic and successful deposition that will lead to an effective cross-examination at trial.
Challenges to the admission of expert testimony are common. Often a pretrial motion to exclude proposed expert testimony is filed, seeking a hearing under Rule 702 of the Federal Rules of Evidence or the state equivalent. This is sometimes referred to as a Daubert hearing, referring to Daubert v. Merrill Dow Pharmaceuticals, 509 U.S. 579 (1993). If your goal is to exclude the expert’s testimony, the deposition strategy is different from that used for an expert who will easily survive a Daubert challenge. In either event, as is true for all things litigation, preparation is the key to success.
Frequently during pretrial activity, an opportunity for settlement or a plea bargain arises. And oftentimes that opportunity arises because of pretrial strategies that put the client in a position to obtain a favorable resolution of the matter. Great trial lawyers sometimes merit that reputation because of the skills they display in pretrial evidence gathering. But there is always a balancing act going on, between preparing for trial and preparing for summary disposition or a settlement or a plea bargain. Great trial lawyers identify the right time to “pounce” in the best interests of their clients.
There comes a point where you know that you will be going to trial. The components of a jury trial are familiar to lawyers: voir dire (the process of selecting the jury), opening statement, direct examination, cross-examination, and closing argument. While everyone knows this, not everyone appreciates the purpose of each of these components or how to complete them effectively.
Many cases have been lost because the wrong juror was selected. This can be prevented by asking the right voir dire questions to reveal the prospective juror’s attitudes, beliefs, and predispositions. Great trial lawyers will tell you that cases are won or lost at the voir dire. That may not always be the case, but ignore this belief at your peril.
Mock trials and focus groups can be very helpful to you in preparing for voir dire and the trial. The mock trial often involves a jury consultant assisting in recruiting a mock jury and leading the mock trial. Counsel presents the case, and members of the trial team present the opposing side of the case. Often, in a room with a one-way mirror, you can watch the mock jury deliberate and decide the case. What you can learn is often intriguing. For example, you can see and hear the mock jurors discuss the case and what they think of you and of your witnesses and their testimony. This experience often influences counsel on the type of jurors they need and the evidence that should be presented during the opening statement, direct and cross-examination, and closing argument—where advocacy skills are paramount.
At the heart of advocacy is the ability to persuade. The most important part of a speech or argument is connecting with the listener. Bear in mind that connecting with your listener is the greatest challenge of persuasion, not only in opening statement and closing argument but also in all phases of trial. Many great trial lawyers consider the entire trial to be one overarching argument. Hence, they consider even direct and cross-examination as an argument to the judge or jury, with the witness speaking for the lawyer.
To understand the fundamentals of persuasion, you can read and study the principles of rhetoric that come to us from times past. Read some of these great advocates and authors—and learn from them. These principles apply to opening statements and closing argument, as well as to witness examinations. Consider some of the following bits of ancient wisdom:
From Aristotle’s Rhetoric, the three most important aspects of persuasion are ethos, pathos, and logos. Ethos is what the listener thinks of you, your character, your style, and your personality. We all tend to agree with those we respect and like. At trial, try to protect your ethos. For example, objecting when you know you will be overruled undermines your ethos. Pathos is emotion. Certainly, there are times in trial when emotion is important. Display emotion with sincerity. The late, great Moe Levine represented a client who lost both hands. In closing argument, he quietly reminded the jurors that he and the jurors ate at lunch with a knife and fork, while his client ate like a dog. Logos is logic, both deductive and inductive. Deductive logic goes from general to specific. For example, the applicable statute of limitations is three years from the date of the injury (major premise); the plaintiff filed her case four years after the occurrence (minor premise); hence, the case should be dismissed.
From Demosthenes, considered the greatest orator of ancient times, the three most important parts of speech are “delivery, delivery, and delivery.” In speeches, he would often resort to rhetorical questions.
From Cicero, author of The Art of Rhetoric, the most important function of a speech or argument is to connect with the listener. Arrange your argument and tailor it to the listener. He prepared his arguments considering five points:
a. Invention: the discovery of proper ways to present the case
b. Disposition: the arrangement of the argument with the strongest points first, continuing with weaker arguments, then ending strong
c. Elocution: the use of proper diction
d. Memorization: the minimal use of notes
e. Delivery: gestures and movement in proving the case
From Quintilian’s Institutio Oratoria, know your listener (focus groups or mock trials may be helpful) and begin your argument with a concise statement crafted to draw in the listener. Regarding witness examinations, put your witnesses through their paces privately before they appear in court.
Once you appreciate the strengths and weaknesses of your case and have focused on what you believe may be the mindset of your listener, you are ready to prepare your opening statement. The purpose of the opening statement is to present to the judge or jury the evidence you plan to present during trial. But this must be accomplished without argument, theoretically. Arguing often assumes facts that are not valid. Many years ago, lawyers would explain to the jury that they should think of the opening statement as the coming attractions of a future movie. But no more. Today, lawyers carefully argue in the opening statement by prefacing with such statements as “The evidence will show . . . ” or “I shall prove that the defendant was driving the car at an incredibly high speed. He did not even try to apply the brakes.”
Arrange the opening to impress the jury or judge, while taking into consideration the so-called primacy effect to connect with the listener. Here is an example: “Good morning, ladies and gentlemen. I am Gregory Jones, representing the defendant, Larry Adams. He is charged with murder in the first degree. His defense is ‘not guilty.’ This simple statement alone should be enough to suggest to you the solemnity of the case that brings you and me face to face.”
Always remember the primacy effect: The first 5 or 10 minutes of the opening give you the opportunity to connect with the listener. But you must engage the attention of the judge or jury. During the beginning of the presentation, the theme of your case should be conveyed. Consider that listeners remember best what they hear first and last. As you present the opening, you may consider using demonstrative aids that are approved by the court. But remember, never turn your back on the jury to read from the aid.
Here is a list of other pointers regarding the opening:
After your opening, you will get to the witnesses. The purpose of direct examination is to “argue” the case via questions from counsel and answers from the witness. Trial lawyers asking the questions must be not only skilled in posing the artful question but also knowledgeable about the rules of evidence governing the questions, ethical rules, and of course the art of persuasion.
One challenge of direct examination is to avoid asking leading questions, which are a cornerstone of cross-examination. Only in limited circumstances are leading questions permitted on direct examination, e.g., questioning minors. Leading questions are questions that suggest the answer, particularly when voice inflection is used: “It rained that night?” Examples of nonleading questions are “What was the weather that evening?” or “Please describe for us the weather that evening.”
One effective technique of phrasing the question to enhance your argument is to use “looping,” also known as “incorporation,” in the phrasing of the question. The technique involves including the answer to the prior question in the next question. That repetition hammers home your key points.
Another challenge of direct examination: Posing open-ended questions offers little, if any, control over the witness. One answer to an open-ended question can throw your case off course. Hence, careful preparation and practice with your witness are essential. Still another important aspect of direct examination is posing questions to expert witnesses—in particular, the proper questions to ask to qualify them to give opinions and to offer opinion testimony during trial and Rule 702 hearings.
Every great direct examination has a structure or organization. First is the introduction, which should help the witness begin establishing credibility and likability with the judge and jury. Next is to provide the context of the testimony that advances the theme of the case. And last is immunization, which involves asking questions that you anticipate will be asked by opposing counsel to attack your case and receiving credible answers.
When it comes to cross-examination, the purpose is to continue arguing your case and defending it. On cross-examination, you have available the leading question. It is the most powerful question mode during the trial. John Henry Wigmore described cross-examination as the greatest legal engine for discovering the truth. It has an age-old importance in trials.
During cross-examination, use the leading question suggesting the answer. In posing the leading question, consider phrasing short questions without adding the phrase “isn’t that true?” Compare “It rained last night; is that not true?” with a series of short statements that would be more effective by simply using voice inflection indicating a question: “It rained last night?” “Yes.” “The streets were flooded?” “Yes.”
During cross-examination, select only those topics that will be of most advantage to your case. Then arrange the topics and points that are most important in the case. Remember to control the witness. Use a delivery and style consistent with your goal. Rule number one is to decide whether you should cross-examine the witness. Rule number two is to use leading questions, when appropriate. And rule number three is to know when to sit down.
Consider the following goals of cross-examination:
While it may sound mundane, another important aspect of witness examinations is the authentication of evidence. While direct and cross-examination are the central features of the trial, often essential to an effective witness examination and proof of a claim or defense are the documents to introduce in evidence, e.g., photographs, business records, and social media evidence. If you have not reached stipulations on admissibility of key evidence, then your trial preparation checklist must include the means by which documents will be authenticated.
Electronic evidence, in particular, may present admissibility challenges. Consider two types of electronic evidence: (1) evidence that derives from electronically stored declarations of individuals, such as electronically generated bills, accounting records, charges and summaries, and email; and (2) electronic evidence that includes output generated automatically by a programed process without input from individuals, such as automated telephone call records, simulations, or enhanced photo images. You need to determine how this type of evidence will be authenticated and by whom. Always have a plan.
In the end, you will come to closing argument. The purpose of closing argument is to incite the judge or jury to render the decision you request. It has been said that when listeners heard Cicero speak, they would say: “Let us march.” Closing argument should provoke the judge or jury into rendering a verdict for your client.
Effective closings should be rehearsed but not sound rehearsed. Sincerity and humility always go farther than bombast and hubris. The arrangement of closing argument should be simple to understand and well organized. In the introduction, return to the main theme of your case. The assertions and presentation should then draw each component of your evidence into the story of why your client should prevail. At the peroration, or closing of your closing, pull together your main points with a strong finish.
Greatness in trial work puts lawyers in rarified air. Aspire to it. You must roll up your sleeves, and you must be disciplined and focused. But if you follow the path outlined above, you just may achieve a status reserved for the best of the trial bar in America.
