The Trial Practice Tips Weblog

Don't Alienate the Judge

When dealing with the judge at trial, try your obsequious best never to show any hint of irritation or disrespect.

That's the advice of Martin L. Grayson, who writes in his excellent, readable book The View from the First Chair: What Every Trial Lawyer Really Needs to Know:

In my opinion, one of the biggest mistakes an attorney can make is alienating the judge. You will put yourself and your client at risk of losing every close call, having every request for continuance or extension of discovery procedures summarily denied and, worst of all, having the judge signal the jury at trial that you are not trustworthy.

Good advice.

How to Organize Simple Cases for Trial Without Software

In his post "A Basic Manual System to Organize Materials for Trial," lawyer Paul Luvera describes a step-by-step procedure for preparing for simple trial matters. He concludes, "This isn’t rocket science and certainly software management is probably superior to my procedure, but for simple cases it works for me." It's worth a read.

Beginning the Trial: What to Wear, What to Say

From Ron Miller at Maryland Injury Lawyer Blog, "Rolexes and Introductions"--

My style is conservative in that I wear “please don’t notice my clothes one way or the other” attire. I would feel uncomfortable with a diamond hoop earring and a gold bracelet. But some lawyers with traditional clothes look like your Uncle Bill at a wedding: miserably out of their element. If that is who you are, be who you are. Juries are going to say, "Hey, he/she is not like me, but this is a real person."

There's more explanation in Miller's post, which goes on to discuss how to start an opening: Should you introduce yourself and your client before beginning, or not? Miller gives the right answer.

Views on Trial from a Veteran Trial Lawyer

On his weblog Plaintiff Trial Lawyer Tips, Paul Luvera has published a list of "personal views" about trials, titled "My General Views about Plaintiff Trial Work."

Some of the questions that are answered in the post--

• How a high-low agreement changes trial strategies;
• Should you be chummy with your opponent; why or why not?;
• Who typically wins cases perceived as "complex"?; and
• How a lawyer's ego can get in the way of winning.

Luvera's views are interesting and worth reading.

Articles on Trial Style

There are a number of articles about interacting with juries from a trial consultancy firm called "Act of Communication." If you follow the link, you'll see a list of articles, including these:

"In opening a case, grab the jurors' attention," By Douglas S. Lavine

"Present your case like a good drama, and the story will lead jurors to render justice," by Katherine James and Alan Blumenfeld

"Tips on exercises to prepare for your courtroom performance."

The website design is a little sloppy (the second article listed above is shown at the website only as "TRIAL, Journal of the Association of Trial Lawyers of America - April, 1998"), but the links work and some of the articles are useful.

Your First Trial: Getting Up to Speed Quickly

At Ron Miller's law firm, Miller & Zois LLC, they're open to the idea of sharing their work product. The firm's "Sample Personal Injury Trial Materials" contains many real-life transcripts, in addition to forms and examples in these areas:

• Sample Voir Dire
• Opening Statements
• Direct Examinations
• Cross Examinations
• Jury Instructions

Since real-life examples provide one of the best ways to learn, the Miller & Zois webpage is worth a look.

Related posts:

1. Trial-Planning Steps to Take After a Deposition Has Ended

2. Learn from a Trial Transcript

3. Motivating Yourself for Trial: Start a Notebook Early

A Few Things to Know About Juries

In the April, 2008, issue of the Illinois Bar Journal, you'll find some interesting tidbits about juries in "Lessons from Jury Research," by Sara Parikh and Terrence Lavin.

Some examples--

• Juries care most about the "strength of the evidence" and make decisions on that basis, rather than giving in to pre-conceived biases or emotional appeals.
• Juries try to fit each bit of evidence into a "cohesive story"; if they can't do it, the evidence "tends to get dismissed or serves to reframe the story."
• Juries tend to discount expert testimony unless it is firmly rooted in the factual evidence.
• While lawyers must sometimes "emphasize and even repeat important concepts," juries quickly become frustrated by needless repetition.
• Even if jurors come to a trial with a particular bias in favor of the plaintiff or defense, these feelings are rarely so entrenched that they will predict the juror's decision about a particular case.

To learn more interesting lessons about juries, read the complete article at your nearest law library or online here (ISBA members only).

Communicating with Juries: Introduce Scientific Terms Slowly

I know a lawyer who cites psychological research to say that when people hear new, unfamiliar terms, they become so distracted that they are unlikely to pay attention to the next seven words. That's why at trial, any jargon that might be unfamiliar to jurors must be introduced to them with the utmost care. Here's the wrong way:

Q. Doctor, please explain blood flow to the heart?

A. [In a sonorous tone]. Certainly. The heart is actually a double pump forcing blood along a complex network of 60,000 miles of blood vessels, from which oxygen-poor blood arrives from the body and collects through the superior vena cava into the right atrium, an upper chamber of the heart, while at the same time, oxygen-rich blood is flowing from the pulmonary veins into the left atrium (meaning that, as an aside, the pulmonary veins are the only veins in the body carrying oxygen-rich blood), all of which initiates a contraction in the walls of the heart which force blood simultaneously through the tricuspid valve on the right side on the heart -- which is on the left in this diagram -- and the mitral valve on the left -- here in the diagram, on the right -- which then results in the blood collecting in the right and left ventricle before flowing into the pulmonary arteries (right side) and the aorta (left side).

Q. Thank you very much, doctor. And next, let me ask . . .

In stark contract, here's the right way to introduce new terms drawn from the same jury-sensitive lawyer who claims to introduce unfamiliar scientific words in exactly this way:

Q. That's a model of a heart, doctor?

A. Yes, it is. The blood comes in from the rest of the body here, to the right atrium.

Q. Atrium? What's that?

A. That's a chamber of the heart.

Q. You mean like rooms in a house? The first room of the house you enter when you go through the door--that can be an atrium, right?

A. Right.

Q. Same word?

A. Right.

Q. And where does the blood flow after that?

A. The right ventricle.

Q. What's a ventricle?

A. That's the chamber right below the atrium.

Q. Right below that first room in the heart?

A. Right.

Q. And what does the right ventricle do?

A. It pumps the blood towards the lungs.

Q. Oh, so the blood leaves the heart there through the ventricle, which is like a vent? Same type of thing?

A. Same type of thing.

Q. So the right atrium is where the blood is coming in from the body, and the right ventricle is where it's going out to the lungs?

A. Right.

With this method, things move a little more slowly, but in contrast to the first example, the jury is more likely to understand what's happening and can use the new words they are learning as building blocks for understanding more complex concepts.

How to Dress at Trial

At the Trial Lawyer Resource Center, Ron Miller has a post called "What Should Lawyers Wear for Trial?" The short answer: don't worry aobut it, be yourself. It's advice that applies equally to lawyers for the plaintiff and for the defense.

For more, read the whole post.

Related post: "Connecting with Juries by Frequently Using the Word 'Folks'"

Are Gadgets Replacing Oratory?

From the Tacoma News Tribune: "Fancy gadgets replace oratory in courtrooms," by Adam Lynn--

From PowerPoint presentations to slick graphics flashed on interactive whiteboards, computers are transforming the way justice is delivered to defendants who want their day in court.

The evidence:

• The Internet is filled with tip sheets for lawyers looking to get the most out of computer technology during trial.
• Professional legal conferences include sessions on using technology in the courtroom. A conference Friday in Tacoma was titled, “Using Courtroom Technology in Thurston County and Pierce County,” and featured speakers from both counties’ prosecuting attorney’s offices.
• Pierce County prosecutors recently debuted an interactive whiteboard that allows them to introduce evidence and re-create crime scenes for a jury with the click of a mouse.

“I certainly think it’s going in that direction,” said Michael Kawamura, who supervises Pierce County’s public defenders. Legal consultants agree.

“At a presentation I recently gave to a room of 150 to 200 lawyers, almost every one raised his hand in response to my question: ‘How many of you have used PowerPoint or an electronic presentation program in a closing?’” said Todd Flaming, an Illinois attorney and adjunct law professor who recently served as chairman of the Illinois State Bar Association’s standing committee on legal technology.

Some legal consultants tout interactive media as a way to better connect with jurors who increasingly are immersed in a gadget-filled world.

The quoted article is an example of the way lawyers are perceived in the lay press. But it's not really true that gadgets are replacing oratory; rather, gadgets are enabling a new kind of oratory. It's one that all lawyers should be familiar with. Though some lawyers with lesser-damage cases think that the use of technology might result in "over-trying" a case, one could argue that even if juries don't expect or demand technology in every case, they certainly won't object to it in a way that would be harmful to the client. The quoted article proves the point.

Related posts:

1. "Plaintiffs' Lawyer Mark Lanier Received Special Powerpoint Training Before First Vioxx Trial"

2. "Just Say No to Speaking Without Visual Aids"