August 27, 2013

Practical Trial Tips and Techniques For A New Criminal Trial Lawyer

So you’ve done the research.  You’ve prepped the case.  You know your facts inside and out.  Now it’s time for TRIAL!  I know your first trial can be a bit daunting.  Mine was.  Where to stand, what to say, openings, closings, etc.  I’m not going to tell you not to be nervous because you are going to be nervous.  The most important tip is to stay calm and breathe.  Don’t let them see you sweat.  The jury doesn’t have to know this is your first trial.  Kick it PTL (Professional Trial Lawyer) style.

Make sure you have the following:

Pocket-sized Rules of Evidence - This comes in handy when you can’t think of an objection on the spot and you’re looking for one.  This has saved me many times when I’ve made an objection and forgotten the rule or number.  Never leave home without it.

Trial Notebook - What is a trial notebook?  I use a three-ring binder so I can add things to it and take out things I’m not going to use in trial.  I also use color coded dividers labeling each section.   Having an organized trial notebook can help you flip through it fast to find what you’re looking for in a pinch.  In addition to having it organized, I like to keep sticky notes of things I tend to forget in the heat of the moment on the inside cover of my trial notebook.  Always have at least three extra copies of potential exhibits in there for the DA, the judge and to mark with the court reporter.

Legal Pads - Make sure you bring at least 3.  You need at least two for your notes and one for your client to take notes.  You want to give the impression to the jury that your client looks like he or she is interested in what’s going on with the case.  You also want to tell your client to write down any questions, comments, or concerns he or she might have.  Nothing is more distracting when you’re in the middle of testimony and you’re trying to take notes, and your client keeps talking to you!  You need to concentrate on the moment and can refer to the notes your client has made when you’re finished.  You want to make your client look good too.  Another note about supplies - make sure you have a good quantity of pens, at least one highlighter, and a sticky notepad.  There might be something you just discovered during the trial and you will need to highlight that for later.

Now that you have everything that you need to go into court prepared to try your first case, let’s get to the nitty-gritty of the trial:

• Voir Dire - Some jurisdictions differ in how this is done.  If your jurisdiction allows you to ask the jury questions rather than just the judge asking the questions, take full advantage.  This is your first introduction to the jury.  This allows you to get a sense of who these people are that will be deciding your case.  You really can tell a lot about a person from the way they dress, the way they speak, and their mannerisms.

Opening Statement - In law school, I was always taught the opening statement is your first opportunity to present yourself and your case to the jury.  I was told to explain to the jury what they will be hearing, what they will be seeing, and what they will be deciding.  For many years, I used to do that.  But then I was taught a different, more of an outside-the-box approach to the opening statement.  Storytelling.  Instead of the same old opening, shake it up a bit.  Instead of going through the motions outlined above, act out what happened in the case.  That will definitely get the jury’s attention!  Act out your theory of the case as if it were a play.  Boy is this effective!

• Cross Examination - We’ve all encountered the difficult witness.  What do you do?  Don’t argue with the witness.  If the witness is giving you a hard time, make him or her look like the jerk - not you.  You’re a PTL.  Make your points and then move on.  He or she will invariably come across like he or she has some sort of motive, bias, or something to hide.  You will look good because you made the witness look bad!

Direct Examination - KISS (Keep It Simple Stupid).  Don’t go all around the world to make your point.  Get your witness on and off the stand without any damaging testimony to your case.  Make your points and then move on.  The longer your witness testifies about nothing relevant to your theory of the case, the more opportunity the DA has to bring out unfavorable testimony on cross.

• Objections - Don’t object to every little thing.  It makes you look like you’re trying to hide something.  My rule for objections is if it doesn’t hurt your case, don’t object!  I believe you lose credibility with the jury if you make too many objections - especially with minor issues.

• Closing Argument - The Big Finish.  Here is your opportunity to shine.  You were a PTL throughout the trial and now you’re going to bring it home.  Be confident in your theory of the case.  Be concise with your words.  Be yourself.  I like to use voice inflections to help my strong points come across to the jury.  Keep the jury engaged in what you’re saying.  You don’t want to lose the jury here. 

My last bit of advice for the novice trial lawyer:

Be comfortable - You will be sitting and standing for long periods of time, so wear a PTL suit, but make sure you’re comfortable in it.  The worst thing you can have is discomfort during trial and tugging at your clothing.  For the ladies - we love our cute shoes, but for trial, make sure they’re comfortable.  This is not a time for style before comfort!

Remember, everyone makes mistakes during their first trial.  I did - and I know I’ll never make those mistakes again!  As you get accustomed with trying cases, it will be second nature to you.  Please know, we’ve all been there.  We learn from our mistakes.  Just keep in mind - kick it PTL style!