Role Number 1: Handle Distractions
A first-chair trial lawyer must be focused on the “here and now,” and distractions caused by unexpected problems should be limited. A great second-chair trial lawyer handles those distractions and allows the first chair to focus on the important: jury selection, opening statements, witness preparations, examinations, and closings. The second chair should take the lead on all problems that come up during the trial that would distract the first chair from executing the game plan but may be very important to the outcome of the trial. This might include understanding the technology in the war room and courtroom, drafting a pocket brief and arguing a seen or unforeseen legal issue, taking the lead on arguing jury instructions and verdict forms, and making judgment calls that don’t necessarily reach the level of “mission critical.” Many first-chair lawyers rely on their second chair to deal with opposing counsel on many of the day-to-day issues that inevitably arise during trial. Part of this crucial role is to anticipate what might be coming. Many “unexpected” distractions could have been anticipated by a prepared second chair. Anticipate what the judge will ask for (e.g., printouts of or citations for seminal case law) and other opportunities to remove distractions from the first chair. A conversation with the first-chair lawyer in the week or two leading up to trial about which distractions he or she would want to weigh in on and which distractions the second chair should exercise discretion on can make both comfortable with the role.
Role Number 2: Know the Key Documents and Exhibits
Second-chair trial lawyers are also responsible for knowing all the documents and exhibits in the case. During trial, the first-chair lawyer should be able to give undivided attention to the witness but cannot feasibly do so if he or she is simultaneously searching for documents or testimony to impeach the witness. Aside from listening closely to the testimony and anticipating when and which exhibits may be needed, a second chair should have the exhibits organized and take control of finding the required evidence to impeach while the trial lawyer is focused on the witness. Similarly, should a friendly witness become disoriented on the stand, a second chair should be there to provide the correct exhibit to rehabilitate and get the witness back on track.
Role Number 3: Preserve the Appellate Record
The second chair is responsible for making sure that appellate issues, arguments, testimony, documents and exhibits, and decisions by the judge go into the record properly. This also means the second chair should pay close attention to whether the proceedings are on or off the record. If there is an issue that needs to be preserved for appeal (voir dire issues, evidentiary rulings, discussion and rulings on jury instructions and verdict forms, etc.), make sure the court reporter is taking everything down and present any issues as soon as possible to the first chair so that the first chair can make a decision as to whether revisiting the issue is worth it or would draw unwanted attention or break the flow of examination.
Role Number 4: Watch the Jurors and Opposition
It’s easy to get wrapped up in the pageantry and presentation of the trial. As a second chair, don’t. The second chair should keep an eye on the jurors, especially during voir dire and the opening statements. Evaluate and note jurors’ emotions, reactions, boredom, and signs like head-nodding, eye-rolling, or exasperation. These will affect your decision on voir dire and will provide clues as to adjustments to make or points to emphasize in closing arguments. The second chair should also keep an eye on opposing counsel and the other parties. For example, note whether the other attorney is signaling the jury or witnesses or making improper ex parte contact with the court or courtroom personnel or if the opposing party is acting differently on break or outside the presence of the jury.
Role Number 5: Take Good Great Inspired Notes
If transcripts are not available each day, the second chair’s notes on the testimony given, evidence admitted, and rulings on arguments will help form the basis of the closing arguments. These notes should also include a running list of items that the first chair needs to revisit during examination or potential evidentiary issues that need to be resolved at the end of the day or after the parties rest.
A brief side note about daily transcripts: Make sure that daily transcripts are offered and that there are multiple court reporters to aid with the task if needed. We had a situation where one court reporter tried to take testimony during the day and provide same-day transcripts at night over a two-week trial. By the end, the transcripts were borderline incomprehensible and key mistakes for the appellate record were made. This is a problem (see Role Number 3). But whether or not a same-day transcript is available, inspired notes from the second chair will also catch insight that may not be reflected on the transcript—comments made off the record, juror reactions to witnesses, key statements in the opposing party’s demonstrative exhibit you want to hammer in your own closing. If the parties are receiving real-time transcript feeds, the second chair should monitor the feed for testimony needed for immediate impeachment or rehabilitation.
Role Number 6: Own the Charging Conference, Jury Instructions, and Verdict Form
Jury instructions and verdict forms are two of the most underrated and important tasks that a second chair can handle at trial. They are incredibly impactful on the jury and, if done poorly, can completely sidetrack a jury or distract from the case, not to mention result in case loss or reversible error. But this is a great role for a second chair because the last thing a first-chair trial lawyer wants to do the evening before closing arguments is to spend three hours arguing about jury instructions. Owning the jury instructions and verdict form doesn’t start at the trial. The work should be done, as much as possible, by the second chair well in advance of the charging conference and discussed with the first chair so that the first chair doesn’t need to worry about whether or not the second chair can do the job.
Conclusion
A second chair is a primary contributor in any great trial experience, win or lose. By owning and successfully playing these six roles, second-chair lawyers can prove that they are an asset to the first chair and to the client and will see more trial opportunities for years to come, preparing the way to step into the first-chair role.
