My goal in trying cases was never to have to lay a foundation in front of the jury unless the foundation had persuasive effect. Why? Foundation questions, for the most part, are rote and boring. See if the other side will stipulate to admissibility of at least some of your exhibits. For those exhibits that you want to spend more time with from the persuasion perspective, you are not precluded from asking foundation questions.
If the other side will not stipulate and instead takes a blanket approach to objecting to everything, send a request to admit in time for the court to rule. The court appreciates attorneys who separate the wheat from the chaff. Judges also appreciate those attorneys who are proactive in bringing issues before the court well before the morning of trial. For important issues, you do not want a rushed judge.
Consider No Sidebars
This suggestion alone is worthy of a separate column in the future. Some of the most seasoned judicial advisors to the Civil Jury Project tell attorneys that there will be no sidebars at trial due to a variety of factors. First, sidebars waste jurors’ time. Most, if not all, issues can be brought up during breaks, before or after court, or during lunch. Mid-course corrections can be made.
Moreover, as a practical matter, many sidebars harm the presentation of the case. Even with white noise machines, the jurors have nothing better to do than to just sit there trying to read lips or body language to see who is winning or losing the sidebar. The trial persona of many attorneys changes during sidebars, and the jurors get to see that.
Show Instead of Tell
A picture is worth a thousand words. Studies abound that show a retention rate of 80 percent if we both see and hear the information as opposed to just 10 to 15 percent if we just hear it. Ask for a pretrial to request permission to use visuals on opening. A useful phrase for convincing the judge to let you show the jury a timeline, diagram, or photo is, “Your honor, I could describe the intersection to the jury, but if you let me show them this diagram, my opening will be a lot shorter.”
Prepare Your Jury Instructions
This should already have been done. You cannot adequately prepare for trial unless you know the instructions the judge is going to give. Come prepared with enough copies for everyone. Come prepared with alternate instructions that you can present to the court immediately rather than having to wait for them to be retyped. We love those attorneys who have their instructions ready to go.
Consider Time Limits
When I say to consider time limits, I mean both self-imposed limits and court-imposed limits. Everyone needs an editor. Study after study shows that the number one complaint that jurors make about attorneys is that we are too repetitious. We want to plow the same ground again and again. Trust me, with 12 attentive jurors you can be assured that most, if not all, will get the point on the first pass.
Regarding court-imposed time limits, there are horror stories of judges issuing draconian orders without regard to the complexity of the issues or the number of witnesses. Stories include a lawyer or witness being mid-sentence when the judge leaves the bench, or witnesses running—yes, running—to and from the witness box to save time.
I am not urging those types of time limits. What I am urging are reasonable limits, given the complexity of the case, paired with flexibility from a judge exercising discretion. Being able to tell the judge and the jury that the case will be concluded by a certain date may help in getting your case to the head of the line for trial.
It will also likely improve the delivery of your case to the jury. A judge once observed: “Once the time limit was imposed, she moved along briskly and finished two hours early. Even more importantly, her case became clearer because she had to talk about the forest rather than each tree, or even each leaf.”