Let’s start at the very beginning,
a very good place to start.
When you read you begin with ABC.
When you sing you begin with Do, Re, Mi…
—Rodgers & Hammerstein, The Sound of Music, “Do-Re-Mi”
While starting at the beginning is great advice for reading and singing, it is terrible advice for trying cases. In court, beginning with the end in mind is the way to go.
What the trial court can giveth, the appellate court can taketh away. I understand that you may practice exclusively in one area of the law where the case law is settled. You know what will hold up on appeal. You know the terminology the trial judge will be looking at for both motions and jury instructions.
However, if you are just starting out in your practice or venturing into uncharted legal territory, some legal research in the area—including the search term “reversed”—is well worth the effort. This advance work provides the framework for your case.
With jury trials especially, you must know what jury instructions are approved on appeal and what instructions resulted in a “do over.” You must know the last words the jury will hear from the judge before retiring to the jury room. Great trial lawyers will try to weave those words from the judge into their closing arguments so the judge’s instructions will be an “echo” of the closing just delivered.
Moreover, you will want to know and use those words in all phases of the case, including discovery, opening, examinations, and closing argument. Even for bench trials, you must know and use the terminology contained in the case law. For example, in a deposition you may ask a witness whether some task was within his or her “scope of employment.” This may draw a legal conclusion objection. However, the witness still must answer that question.
You may then decide that a judge might sustain that objection at trial, so you just ask again using the words “duties” or “job” instead. You attach that portion of the deposition transcript to your motion for summary judgment. By knowing the words that the judge will be applying, you have just increased your chance for success.
In my practice, the most useful tool I found for organization was the three-ring binder. Start working backwards by using it to build your trial notebook. Some suggested tabs would be Case Law, Jury Instructions, Verdict Forms, Proposed Order (for bench trials), Closing Argument, Evidence, Opening Statement, and Pleadings.
Make the tabs large so you—and, more importantly, others—can read them. Bring your trial notebook to depositions, meetings with opposing counsel, and court scheduling conferences. Show opposing counsel, their client, and the judge that you are getting ready for trial.
After going to judicial education conferences for 20 years, we are taught that the most dreaded phrase for judges, attorneys, and their clients is “under advisement.” It is the bane of our existence, and cases, unlike wine, simply do not get better with age.
I know of two such cases where judges took divorce cases “under advisement” only to have the assets in those cases drop so precipitously in value that the cases had to be retried. One judge I knew simply would not take any divorce case under advisement. He requested the parties to stay in the courtroom while he went back in chambers to deliberate and then delivered the opinion from the bench.
The greatest gift you can give a judge is to write the opinion. With courts struggling to catch up with case backlogs, you will win points by doing this work for the judge. There is absolutely no problem with providing the court and opposing counsel a draft opinion that the court can adopt wholesale or modify as needed. And I mean all opinions—whether it is the whole ball of wax after a bench trial or the most routine motion.
You will want to start writing your closing argument as soon as you take the case. There are two good reasons for this. First, the longer you work on closing, the more likely you can deliver it with very few notes or no notes at all. Notes insulate you from the person or persons you are trying to persuade.
In jury trials, freedom from notes allows you to concentrate on and maintain eye contact with your jury. In bench trials, you can concentrate on the judge to see if you need to pause while the judge searches for an exhibit or ask if the court needs clarification if the judge looks puzzled.
The second reason is that your closing will simply be better. Rarely did inspiration strike me if I sat down to a blank legal pad, pen in hand, the night before my closing argument. No, inspiration struck me at odd times. Thoughts, points, and phrases came to me lying in bed, driving the car, and mowing the lawn. Once that perfect turn of phrase hits you, write it down or record it on your phone. Great closings are built over time. Great cases are built backwards.
This is the second in a series of columns I am doing for the South Texas Pro Bono Asylum Representation Project (ProBAR). ProBAR is an ABA entity composed of dedicated attorneys and paralegals who provide immigration help to detained adults and children along the border in the Rio Grande Valley. The ABA Litigation Section’s Pro Bono Task Force is assisting ProBAR and is asking for volunteers to do short videos on general litigation topics, including trial and longer webinars, and to mentor individual ProBAR attorneys.
As I have written before, immigration attorneys handle many cases where the stakes are always high and there is a limited amount of time. The lessons and techniques used in this setting are valuable for all trial attorneys practicing in post-pandemic court systems. If you are interested in assisting with the ProBAR Project, visit the Task Force website.
