By Mark A. Romance
As a young lawyer preparing for trial, you undoubtedly will review Winning at Trial by D. Shane Read, or Fundamentals of Trial Techniques by Thomas A. Mauet. If that is not part of your plan, make it part of your routine before trial. Both books include valuable information on basic trial techniques. Here are ten tips from recent trial experience that are not found in textbooks:
- Prepare a “to do” list. Make a list of tasks to be done before trial. Include deadlines, motions to be filed, witness outlines, and practical items such as supplies needed and lunch arrangements. Identify the team member assigned to each task and review the list regularly to make sure nothing is forgotten.
- Visit the courtroom. Visit the courtroom to identify practical or technical issues. Some courtrooms have the latest technology while others have none. Make sure you know how to use the technology available and address any other practical issues.
- Read everything. Reread all depositions, pleadings, exhibits, key cases, and significant court rulings. Keep in mind that the complaint and answer establish the burden of proof at trial. You need to master the allegations, the evidence, and the law.
- Develop your theme. What is the story you will tell at trial? What are your strengths and weaknesses and those of your opponent? Your opening statement, examination of witnesses, demonstrative aids, and closing argument should all tell your story.
- Prepare your jury instructions. It takes significant time and strategy to prepare jury instructions (or proposed findings of fact and conclusions of law in non-jury cases). Become a master of the law and prepare jury instructions well in advance of trial and use them as your guide as to what you must prove at trial.
- Prepare witness outlines, not questions. Experienced lawyers prepare outlines of areas of questions for witnesses rather than a series of prepared questions. Remember, you are telling a story, which is most effectively presented through a conversation with your witness. Reading exact questions prevents you from presenting a fluid question and answer session with your witness. Of course, there are certain questions on direct that you must ask precisely to establish a fact, or to set up impeachment questions on cross-examination, but those are the exceptions and not the rule.
- Anticipate evidentiary issues. You should master the rules of evidence before trial. Read the rules again so they are fresh. Anticipate objections and be prepared to address them. If the issue is significant, prepare a short memo in advance of trial that you can use as a roadmap for your argument. This “bench memo” should include legal citations and be presented to the judge during argument on the issue.
- Use of effective demonstrative aids. Judges and jurors expect a visual presentation, even in business cases. Your demonstrative aids should be used during opening statements, with witness examinations, and during closing argument, to tell your story in a visual way that supports your case.
- Prepare closing argument ahead of time. Your closing argument should cite the evidence and law that supports your theme and the merits of your case. Do not wait until trial begins to prepare your closing argument. Prepare an outline before trial begins that cites exhibits and testimony you expect will be admitted at trial, and modify your closing during trial as the evidence evolves. If you wait until you are in trial, your closing argument will look unprepared and patched together. Plan ahead for a smooth and seamless closing.
- Watch and listen. Watch the jurors’ and judge’s facial expressions during trial and listen to the message being sent by judge and jury. Often-times a judge will ask questions or make rulings that indicates what she thinks is important and whether she wants to hear more from one side who may be winning the argument. Listen to the questions and comments to gauge what is important to the judge and when she wants to hear from you. Often the judge does not need (or want) to hear from a side who is winning. Be alert and try to read what the judge is really asking before deciding whether an argument or question is really necessary.
Learning from trial textbooks is critical to preparing for trial, but be practical in your approach and be prepared for the unexpected. Ask for help from those who have been through a trial. There is no substitute for experience.