From Selection to Summation: Preparing for My First Jury Trial

These days, bona fide trial attorneys could have a whole career of bench trials and not a single jury trial. Or they could find themselves 15 years into their careers, having tried dozens of cases, faced with an experience that years ago was the exclusive province of the young lawyer: their first jury trial. Which is where I find myself now.

I have plenty of bench trial experience. I’ve tried numerous cases on a variety of legal issues in federal and state courts. I am familiar with most of the judges in my judicial district, and I generally know what to expect when I’m preparing for trial. But, when the jury is added to the mix, I’m back at square one. How do I pick a jury? What am I allowed to ask? What am I not allowed to ask? How long does it take? Is voir dire reported? How do I present my opening statement? How do I examine my witnesses so the jury is engaged and not bored? What about objections? How much can I say in support of my objections in front of a jury? Will I remember everything I need to remember? Will they like me?

Trying to answer these questions, I collected and reviewed reams (or megabytes) of information from various sources whose advice ranged from get enough sleep and exercise to write it down to write it down but don’t memorize it to jury selection is about figuring out who will vote against your client no matter what. Some of this advice resonated and some left me scratching my head. This article presents what I found to be the most useful advice in everything I heard, read, and learned. I’ve included a list of some of the free resources at the end.

One resource that won’t be on the list, however, is my first-choice source of information and advice: people. My former boss and mentor spent years as an assistant U.S. attorney before the jury trial became an endangered species. He has more jury trial experience than anyone I know. So I called him. Then I called a colleague who had just finished a jury trial and asked for her input. The best advice I can give you is this: Never be afraid to ask a trial lawyer for advice. We make our livings—at least in large part—trying to persuade other people that we’re right. A trial lawyer will almost always be happy to guide you. The list below is distilled from the experience of many other trial lawyers, some of whom I spoke to and others whose advice I read.

1. Your case, your client’s experience, is a story. Find a way to tell it so that a group of people who might not start out all that interested in it will be pulled in and, ultimately, on your client’s side. I once observed a moot court for an appellate argument where the appellant was a large healthcare company, and the appellee was a seven-year-old girl who had been denied coverage for treatment related to multiple sclerosis. That’s all I knew before I sat down to listen to the attorney for the appellant practice his argument. I was pretty sure it was going to be a disaster. But his first two sentences were: “Mr. Chief Justice, and may it please the Court. There’s no question here that the insurance company was wrong.” Suddenly, I was open to being convinced, and I listened attentively to the rest of the argument. Your client’s story needs to be accessible and told so that your audience—the jury—wants to agree with you.
2. Know and understand the rules governing voir dire in your court. Read them, read them, and read them again. If you don’t understand what a rule or part of a rule means, ask someone or look it up. Know how many strikes you get, and know what you can base your strikes on. Know the reasons for which you are not permitted to strike a potential juror. Know how much time and leeway your court and your judge will give you to learn about your potential jurors from them directly. You need to have a process for determining which potential jurors your client absolutely cannot live with.
   
   One of the people I talked to had just won a jury trial in a wrongful termination case. In the early stages of the case, I had consulted with the defendant company. I did not end up working on the matter, but my brief consultation convinced me that the plaintiff had no case. The contract at issue, in my view, clearly protected the company. The attorney for the company who tried the case, however, did not engage in any real voir dire with the jury pool, so the attorney had no opportunity to learn anything about the people sitting there, waiting to be released (or, perhaps, chosen). By failing even to try to learn about the people who would decide the client’s fate, that attorney also missed an opportunity to engage these jurors and give them a chance to participate and experience being a part of the process.
3. Conduct yourself professionally and courteously at all times, especially when the jury is in the room. Ensure that your client or client representative conducts himself or herself professionally and courteously at all times, as well. A jury trial is not supposed to be a popularity contest, but it is not reasonable or rational to expect jurors to respect you if you are not willing to respect the process. This not only projects professionalism and respect; it gives you and your client credibility.
4. Be prepared and be organized. Review your pleadings, motions, discovery requests, and discovery responses to make sure you have complied with all procedural requirements, such as answering an amended complaint. One of my least fun trial experiences was being directed to file an answer to an amended complaint, which should have been done years before (by the first attorney on the case) and which I had failed to catch in my review. Make sure you don’t owe the other side any discovery responses, and make sure you’ve received all discovery you’ve requested. If your client is seeking damages, make sure you have produced every item of information required to prove your damages.
   
   Write down the questions or types of questions you want to ask during voir dire. Write down your opening statement. You don’t have to memorize it, and if necessary, you can read it, but it is better if you write it down and then distill it into a list of the general points you need to cover. One of the partners I worked with when I was just out of law school would make an audio recording of his opening statement and play it back to himself while he slept. My method of remembering what I need to remember is to type it out several times, which is what I did in law school to prepare for exams. I would type out each outline as many times as I could, refining the information each time, which not only clarified what I was supposed to be learning but also helped me remember it.
   
   Write down any preliminary issues and arguments you want to raise with the court before the jury is called in. Write down the order in which you’ll call your witnesses. Write down what evidence you intend to introduce through each witness. Write down the questions you plan to ask your witnesses, with headings for each category of proof. Include a notation for each exhibit you plan to introduce and what you need to say to introduce it. I even wrote down “MOVE TO ADMIT,” in all caps and bold, so I didn’t forget. An exhibit is useless if you forget to have it admitted into evidence.
   
   I use a trial notebook for all my trials into which I put all the materials noted above. The binder has tabs for the pleadings in the case, any relevant motions, arguments I intend to raise at the beginning, my opening statement, deposition transcripts for impeachment or refreshing recollections, witness outlines, exhibits, my oral motion for a directed verdict, and my closing argument. Now I need to add a tab for jury instructions.
5. If possible, review jury instructions for cases like yours before preparing your proposed jury instructions, including proposed verdict forms. Most jurisdictions require you to use the language in the model jury instructions, but you still have to decide which instructions you believe the jury needs to hear to render a verdict for your client. Reviewing and preparing jury instructions also helps you determine what evidence is essential to win your case. The process ensures that you don’t overlook anything, just as preparing an order of proof for a bench trial can.
6. Know and understand the Rules of Evidence. Consider making a list or chart of the grounds for objections so you know what to say when you hear an objectionable question or answer.
7. Find out your judge’s individual practices, if any. In some courts, judges post their individual rules and practices on the court website.
8. Give yourself more time than you think you need. Preparing for a jury trial requires commanding numerous moving parts, many of which influence the preparation of other parts. You likely will find that you will have to revise your trial brief after preparing your proposed jury instructions, or you’ll select additional—or delete some—jury instructions after determining what grounds you have for a motion in limine. If you’re lucky enough to have a second chair or even a trial team, delegate but make sure you have time to review whatever motion or document you’ve delegated before you have to submit it. Few things are more stressful than having to revise a 25-page motion when the deadline to file it is just hours away.
9. Do your best to have fun, or at least enjoy the process. Having to think on my feet and respond to challenges in the moment is one of the reasons I love going to trial. I’m nervous about voir dire and presenting my case to a jury, but I’m also excited, anticipating the moments when I get it right and feel that rush of success, which is excellent balm for the inevitable moments when I stumble. In the end, all we can do is what’s within our control: represent our clients to the best of our abilities. For me, that’s something I love doing, even when I’m terrified.