The Trial Practice Tips Weblog

Telling Stories at Trial

"[E]excessive strategizing about trial advocacy is counterproductive," writes Max Kennerly of the Litigation & Trial blog in this paragraph--

All of which leads me to believe that excessive strategizing about trial advocacy is counterproductive, a product of our intuition leading us astray with psychological illusions like confirmation bias. Facts win cases. The minimum performance required for a trial lawyer to be considered competent is quite high (and there are many incompetent trial lawyers), and there are differences in style and performance that separate the great trial lawyers from the competent ones, but no one reasonable decision at trial ever sways the case one way or another.

The quote is pulled from the end of a long post about trial styles and story-telling: "Trial Lawyers As Storytellers, The Narratives Versus The Numbers." It's a useful read if you've been thinking about how to organize trial facts into a compelling narrative, and how much this matters to the outcome of your case.

During a Trial: What's Important and What's Not?

From the Wisconsin Law Journal: "Trial Techniques: What lawyers should (and shouldn’t) worry about in the courtroom," by Alexandra Rudolph--

As the owner of a Chicago jury research firm, I’ve seen a number of lawyers make the same mistakes and misjudgments countless times over the years.

In my experience, attorneys spend too much time worrying about things they can’t control, such as opinions expressed during jury selection, and too little time considering how their trial team appears to the court or what a judge might find most helpful.

Rudolph goes on to list "things to stop worrying about," with explanation--

• Whether jurors will be turned off by use of technology;
• How the jury will react to a witness who seems to have been prepared to testify by a lawyer;
• Whether comments made during jury selection have tainted the jury;
• How a jury will respond to an expert who makes small admissions that seem to bolster the other side's case.

What's really worth worrying about? According to Rudolph--

• Technology misfires;
• A disjointed trial team;
• Whether you have sufficiently educated the judge;
• Whether you have clearly communicated with the jury throughout the trial.

You can read Rudolph's full article, with its explanatory text, at the link.

For Plaintiffs' Lawyers: Who Should You Call As Your First Witness?

At The Maryland Injury Lawyer Blog, Ronald V. Miller, Jr., has a post titled "Sequence of Witnesses," which discusses strategies for choosing the first witness in a trial.

Miller's post includes advice from David Ball's book Damages, which was recently released in a third edition.

Tips for Lawyers from the Jury

From Steve Frederick's Kentucky Injury Law Blog: Jurors' Top 5 Trial Tips, a guest post by Becky S. Jones.

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.

The Zen of Trial Practice

Here's a novel idea for lawyers from a new law blog, Seattle Zen Legal Blog: "Thou Shalt Not Be a Pompous Ass"--

As an attorney I work on treating all people with dignity and respect. This is the right thing to do. Sadly there are lawyers who are over impressed with themselves. These lawyers talk down to others or appear not to have time for the problems of little people. Well we never know who we are helping, and since we have chosen to be a lawyer, we have an obligation to help others when we are able.

The blog's author is Pat Trudell. On his blog, you can also read posts like "Beyond the Reptilian Brain" and "Personal Injury as Tragedy."

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.