The Trial Practice Tips Blog

Learning to Be Comfortable in a Courtroom

The best trial lawyers move around a courtroom with such ease that you'd think they were trying the case in their own living rooms. When you are up against such lawyers, you'll be surprised by how disarming it can be. Sometimes their mistakes just won't seem to matter. In fact, you'll wonder, was that a mistake at all?

While this sort of confidence comes only with experience, there are some shortcuts you can take to being comfortable in a courtroom. Try these six:

• Meet with the Judge Every judge has special trial procedures and quirky personal rules that are best learned before you violate them. The more you know about the judge's personal trial procedures ahead of time, the more comfortable you will feel at trial. Question the judge at a pretrial conference or arrange a meeting that's convenient for opposing counsel. Put the question as directly as possible: "Your Honor, do you have any special trial procedures that I should know about?"  Don't worry about sounding like a novice; you won't.
• Talk to Other Lawyers Asking the judge directly is good, but so is asking other lawyers. Find out about as much as you can about the trial judge by asking lawyers with firsthand knowledge. Does the judge require more formality or less? Will he impose limitations on your ability to move around the courtroom? How is his demeanor? What sorts of things will make him angry?
• Learn the Layout of the Courtroom If you are trying a case in an unfamiliar courtroom, spend some time there the week before. Consider where you'll sit, where you'll put your files, and how you'll get from one place to another with a jury box full of people who will all seem to be watching your every move. If you have an extensive computer set-up, conduct a dress rehearsal with your staff. You will be glad later that you did.
• Get to Know the Courtroom Personnel I suppose some lawyers don't take the time to learn the names of every member of the judge's staff before the trial begins, but this is not only risky, it's rude. Try to do more than learn their names; engage in some small talk and get to know a little about them too. Not only will you appreciate their smiles after a difficult day of trial, but they might be a big help when it comes to courtroom logistics. During a trial, you can't have too many friends.
• Be Yourself Sure you have seen some great lawyers who you would like to imitate at trial, but imitation just won't work. You're a lawyer, not an actor. Focus on the lawyering, try not to be too self-conscious, and don't be hard on yourself when you mess up. The showmanship may come naturally, but if not it won't matter: you'll be acting like yourself, which will make everyone happier (and much more comfortable) in the end.
• Overprepare There's no better way to make sure you will be relaxed at trial than to overprepare in the weeks before it starts. You won't be able to prevent the heart-stopping surprises that complicate every trial, but you will be more likely to keep your cool when they come.

Publication Note: Originally published 12/30/05. Republished today with minor edits.

At Trial: When to Object, When to Sit on Your Hands

From At Counsel Table: "To Object Or Not To Object," by Alex Craigie--

It’s interesting that our law school evidence classes teach us the mechanics of the rules of evidence, however, (if my memory serves) we’re not given much guidance on how to decide whether, assuming a question is objectionable, it is a good idea to object during trial. It is true that the rules of evidence have application outside the context of a jury trial, and in fact it can be years before a lawyer actually has to make the decision whether to raise an objection at trial. But the question whether it makes strategic sense to object in the presence of the jury merits some analysis.

I consulted Professor McElhaney and, as expected, he had wisdom to impart. In Litigation, he articulates rules for when to object. I’ll list the first five here.

Find the five rules at the full post.

Where to Keep Your Hands at Trial . . . And Other Useful Tips

From the Velvet Hammer: "Top 10 Tips from a Voice Coach," including "keep your weight on both feet," "employ vocal highlighting," "keep your hands relaxed at your sides," and more . . .

The Importance of Preparation

From Alex Craigie at At Counsel Table: "Killing Them Softly With Preparation"--

I rarely hold the opinion that I am the smartest guy in any room. But when I remind myself of this first “Horton Rule,” I am empowered with the notion that there is an additional X factor that I alone control: how much time and effort I devote to being the better prepared lawyer in the (court) room.

What's the "Horton Rule"? Read Craigie's full post to find out.

Make the Most of Trial Graphics

Here's a useful article from Melvin Dubinsky: "Making the Most of Graphics for Trial," which is republished at his website. You'll find tips about--

• Photos and charts
• Videos ("moving graphics")
• Powerpoint

Dubinsky's points about using graphics for maximum impact at trial are illustrated with many of his real-life trial anecdotes.

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.