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By Charles F. Brower I. INITIAL EVALUATION/WHETHER TO TAKE THE CASE When somebody comes in to consult you about representing them in court in a significant litigation matter, your decision as to whether or not to accept the case is dependent upon the merits and probability of success, the matching of personalities between you and the client in the sense that you will each want to work with the other, and the probable economic outcome for both you and the client. Therefore, your initial evaluation of the case and the client needs to address itself to these three matters. First, with regard to the merits of the case, the client may come in for an initial interview without much in the way of backup or documentation to support his claim. You will get some background information from him at the initial interview and may have time to review some of the documentation that the client brings in, but in all probability, you will want to have the client or your investigator flush out the details of the matter subsequent to the initial meeting. You will make a list of "to dos" for the client to pursue and get into your hands for review before the second meeting. In addition, you may want to do some preliminary research on the legal viability of the claim, assuming a hypothetical state of facts. Before you ever bring suit in the matter, you will have investigated the facts as thoroughly as possible and researched the legal implications of the facts for purposes of drafting your complaint. One of the matters that you will be addressing at this stage of things is your ability to prove the case in court. Assuming your client has a meritorious and legally supportable claim, are the witnesses and documentary evidence available to you in order to prove your case? If you have out-of-state information that you are going to need for trial, you want to plan to address those matters early on after you file suit. With regard to the personal relationship issue, while you are going through the first two meetings with your prospective client, you will get a feel for your ability to work with one another and make an evaluation of your respective abilities to get along with each other in the stressful situations that arise during a lawsuit. What a person may act like in the peace and quiet of your office may be quite different from the way he or she will act will act under the stress of a deposition or trial. Your ability to work together and your client's ability to function in the trial context are very important to the outcome of the case, and therefore very important to your evaluation as to whether to take the case at all. As a corollary to your evaluation of your ability to work together is your evaluation as a lawyer of the client as a witness in court. Is the client credible? Is he or she truthful? Do they try to slant things in their direction, or do they give you an honest version of what occurred? How will they appear to a judge or a jury? How intellectually able are they to understand the implications, both factual and legal, of the case they are about to bring and to understand the mechanics of testifying at a deposition or in court? You are going to need this person as your assistant during the course of the case, and their personality and effectiveness are going to be very important to you if you have to try the case. The third aspect of your initial evaluation will be the probable economic consequences of the lawsuit for both of you. From the client's standpoint, what will be the probable results of the substantial investment he or she will have to make in filing the suit, paying you, paying litigation-related expenses, paying experts, and trying the case? What is the dollar value of the case, vis-a-vis the expenses that will be incurred in trying the case? Is the client looking at the matter from the point of view of the practical economics of the case, or is the client litigating because of the "principle" of the matter? What are the financial arrangements that the client wants to make with you? Is the client fully prepared to fund the expenses of the case, and will the client be regular in their payments to you for fees and disbursements? In a major undertaking, it does not hurt to get a Dunne & Bradstreet or similar credit evaluation of the potential client. After your initial meeting and after the submissions by the client and/or your investigator of additional material, and after you have researched the legal implications of the client's claims, you are ready to have a second meeting with the client. At this meeting, you will have reviewed the materials generated after the first meeting. You will have researched the legal implications of the claim, and you will be prepared to enter into a retainer agreement with the client. This is the meeting at which you will give the client your preliminary evaluation of the case, including the merits and the probable economic outcome. This is the meeting at which you will make your final evaluation of each other as persons with whom you want to work in a litigation context, and this is the meeting at which you will submit to the client your retainer agreement to undertake the case. I like to send the client out of the office after our second meeting and after our discussions and after I have submitted the retainer agreement to the client and tell the client to consider the matter with whatever advisers he or she wishes to consult, call me back with any follow-up questions that he may have, and then sign the retainer agreement out of my presence and forward it to me with a retainer check, following which, I will return a fully-executed retainer agreement to the client, at which point we will be attorney and client. Having the client sign a retainer agreement at your desk is usually not a good idea because the client may feel pressured to do so. The client may not have really decided that they want to proceed, and once they talk with whatever other individuals they wish to consult, they may decide not to go forward in view of some of your cautionary comments during the second meeting. Accordingly, I think it's a good idea to have the prospective client leave your office with your evaluation and the unsigned retainer agreement after the second meeting. II. PLEADING Once you are retained, it is your job to draft a complaint and submit it to the client for review. How often have you seen a party to a suit confronted with a pleading filed by his or her attorney which has never been shown to the party and which has significant inaccuracies in it? It is really important to submit a proposed complaint to your client for review, correction, and editing. Before you can draft a complaint, you need to complete your initial investigation with further follow-up data to be provided by the client, your investigator, your paralegal, so that once you fact plead in your complaint, you will be fact pleading accurately. As above stated, the fact pleading needs to contain allegations you can prove in court, and you need to think about how you're going to prove those things when you're doing your initial investigation. Your complaint needs to contain a legally viable cause of action or causes of actions. These should be pleaded separately and the particular legal theory identified at the beginning of each count. You should research each of your counts to be sure that the facts stated in the count contain all the essential elements of the legal theory represented by the count. You are then ready to submit the proposed complaint to your client for review and editing. Educate Yourself If you are in a new area for you, either legally or factually, it is very important for you to understand what you are doing as soon as possible. If this is your first trade secrets case, it is very important for you to thoroughly educate yourself in trade secrets law. If this is your first time litigating a matter affecting a client who is in a particular specialized business, it is very important for you to thoroughly educate yourself in your client's business operations with respect to the aspects that are relevant to your lawsuit. You need to be able to be conversant with your client's business and the way it operates with your opposing counsel, with witnesses, and with the court. Since the trier of fact and the judge will, in all probability, not be conversant with the specific aspects of your client's business, it is very important for you to be in a position to educate them as the case goes along. Likewise, if you are deposing experts or persons involved in that particular business, you will need to understand its operations in order to ask intelligent questions and understand the answers that are being given. This can be a very painstaking, time-consuming process, but it is absolutely necessary for you to spend the time to educate yourself in order to effectively represent your client in the case. You also need to give some consideration to parties. Who will be the necessary parties to the case? What are the proper individual or corporate names? What are the proper addresses? Do they have agents for service? Are you suing the right parties? What is the proper jurisdiction and venue in which the case should be brought? Can you bring the case in federal court? If so, where? Are you better off in federal court because of the particular procedural considerations affecting your case? Once you have made these determinations, then you are ready to serve the complaint. Once the complaint is served, it is very important for you to check the service to make sure that it has been served properly and that all the parties have been served. III. DISCOVERY If you have brought the suit in federal court, the first step in
the litigation itself will be the Rule 26a meeting, at which you and
your opponent are required to exchange information and names and addresses
of potential witnesses. This is an informal meeting at which you will
develop a roadmap for your discovery process and prepare for a meeting
with the federal judge under Since you have brought the lawsuit, and since you have done a pre-suit investigation of both the facts and the law, you are in a superior position on day one to know what additional information you need, what depositions you need to take, what production materials are going to be essential for your case, and what interrogatories you should ask the other side. Therefore, the sooner you get these requests filed, the more likely it is that you are going to obtain necessary information from your opponent that you need to successfully prosecute your case. I like to obtain documentary information and leave the interrogatory part of it to depositions, which are taken after the documentary or other production materials have been reviewed by you. You will, of course, be using your pre-suit investigation materials, both legal and factual, in preparing your initial requests for information, and your initial depositions. I don't start with the proposition that I need to depose every adverse witness or party in the case. I feel that it's necessary to depose an adverse witness or an adverse party only where I need specific information from them that I cannot otherwise obtain, where I need to preserve their testimony, or where there is otherwise some other good reason to take their deposition. Simply taking a deposition of an adverse witness or party because they are there can serve to educate them and prepare them for legal and factual issues that they perhaps were not aware of before the deposition. I, myself, have been educated on many occasions by opposing counsel taking a very thorough, comprehensive deposition of one of my witnesses or my client, which I have in turn used very effectively to prepare that person to testify at the trial. Accordingly, I would not necessarily think it would be to your advantage to depose everyone in sight. I also feel that it is not necessarily to your advantage to take an A to Z deposition of everyone you choose to depose. You may want to limit your deposition to a few selective areas that you feel you need to cover in order to prepare your case, obtain necessary information, achieve admissions, etc. During the discovery process, you are also going to want to draft some requests for admissions, isolating specific parts of your case, or perhaps sections of your complaint as to which you think you can obtain a specific limited admission of fact. If you are unsuccessful in obtaining an admission of a matter that you feel that you are entitled to, you can keep track of the costs that you incur in proving that particular fact at trial and make an application to recover those costs at the close of the case. The discovery stage is also the time to obtain court orders for inspections. Inspections can be important for your preparation for trial by your experts or yourself, and if the particular things sought to be inspected are in the control of your opponent, you may need to apply for a court order for an inspection, and of course, make arrangements to have your expert present, and probably a photographer or a video camera. Preparing Your Client For a Deposition In preparing your client for a deposition, you will outline the client's testimony with a particular emphasis on vulnerabilities, and as you go through the client's testimony with him or her during the pre-deposition drill, you will address those vulnerabilities in questions to the client and educate the client in answering those questions. I tell my clients that the most important thing to do, aside from preparation for taking the deposition, is to listen to the question. If a client listens to the question, they will know whether they understand the question, and they will know whether they know the answer to the question. If they do, they can then proceed to answer it responsively and briefly and then stop. The second thing I tell my clients is that there are certain fundamental aspects of a case that they know and are sure of, and there are certain aspects of the case that they are not sure of, and that is important for them to know the difference and never back down from something that they absolutely know to be the case, and never go out on a limb and volunteer information about things they are not sure about. When a client is being examined with leading questions by the opposing attorney, it is very important for the client not to leap to the conclusion that because a question is asked it must be something that they have to agree with. Usually the opposite is the case. If the attorney is asking leading questions, which he or she should be doing during a deposition, the questions may very well call for a yes/no answer, and rather than leaping to the assumption that the deposed client needs to agree to the question asked by the opposing lawyer, it's probably the case with many questions that the proper answer to the opposing lawyer's question is not to agree with them, or in other words, to say "no", stop and make the attorney ask another question. You can, as counsel, also object to the form of leading questions. I also tell my clients that they are privileged to call a time out, confer with me outside the deposition, go back in and resume the deposition. I also tell them that it is not a trial. They are strictly being asked factual matters, and they need not worry about being harassed. Depositions of Unavailable Witnesses When you or your opponent are taking the deposition of a witness who is likely to be unavailable for trial, it is extremely important for you to remember that the form of the questions that you ask the witness must be the same as you would ask at trial. In other words, if you are asking the questions of a witness whose testimony you need at the trial, it is important for you to ask proper questions to obtain proper and admissible information from the witness so that you will in fact be able to use the deposition at the trial. You cannot ask leading questions of your own witness. You cannot ask questions that call for hearsay responses. You must treat the examination of the witness as though the witness were in court or you will not be able to use the deposition in evidence. Concomitantly, when your opponent is deposing a witness who is likely to be unavailable for trial, it is important for you to make objections to the form of questions asked of the deponent if you feel that the questions are leading or otherwise improper. Failure to object to the form of a question at such a deposition will probably preclude you from objecting to the form at the trial. All other objections, of course, will be saved, but when you or your opponent are deposing a witness who is likely not to be available for trial, it is important for both of you to treat this examination as though the witness were a live trial witness. Deposing Adverse Clients and Witnesses The purpose of deposing adverse clients and witnesses is to obtain admissions and obtain information that you need to try your case. In general, you can ask leading questions at trial to an adverse party or witness. Accordingly, you should cover the essential items in depositions of adverse parties and witnesses that you need to be able to ask them at trial so that you know what their answers are going to be. If you get the right answer, you can be sure that in most cases, the opponent is going to read their deposition before you call them as a witness at trial, and they are going to give you the same answer on the stand. If they don't, you can use the deposition transcript to "refresh their recollection." During the discovery stage, you are organizing your potential exhibits and documents usually in an exhibit book with an index, possibly organizing your documentary exhibits in chronological order so they are readily available to you at the trial. It is also very important for you to read and digest the materials as you go through the discovery phase so that you can make absolutely sure you understand what you are receiving and can seek additional information if you need it. During the discovery phase, you can continue to use your investigator to follow up on information that you obtain through discovery or to follow up by attempting to obtain information that you feel may impeach witnesses who have given depositions during the discovery phase. If you are doing your job, while you are going through this phase of the case, you are going to have things occur to you that will help you prosecute the case. You will think of additional witnesses that can help you with a particular issue. You will think of additional documents that can perhaps help you prove an important material point. You will discover vulnerabilities in your opponent's case, testimony, theories, that weren't completely apparent to you when you started the case. These are all the types of things that make the difference between winning and losing cases, and they are always the product of hard work in the discovery and trial preparation stage of the case. IV. EXPERTS An expert is somebody that knows something about a particular subject matter that most people don't know. Almost any type of educational or vocational background and experience can qualify somebody to be an expert. There is no particular requirement imposed by the court for somebody to qualify as an expert, as long as they demonstrate that they know more about a particular subject matter than most people do because of their particular background and experience and, In case of scientific evidence, as long as the testimony is based on a generally accepted scientific methodology. The Connecticut courts have stated that in some cases, i.e., malpractice, professional liability, contractor liability, an expert is essential to make out a prima face case of liability. Accordingly, you should research very early on the issue of whether your case is one where an expert is required by Connecticut law. If the expert is required by Connecticut law for you to make out your case, the time for you to hire the expert is before you bring suit. You don't want to find out after you have done your factual investigation and after you brought suit and after you're in the discovery stage that there is really no credible expert available to you who will substantiate your theory of liability. Accordingly, once you have done your preliminary factual and legal research and you have determined that you need an expert or that you want an expert, you should hire the expert before you bring suit, make sure the expert is thoroughly educated in the facts of your case so that he or she can render an objective supportable opinion, and then have the expert generate a written report. That report is going to be quoted in your complaint and is going to be the basis for your theory of liability. In choosing an expert, you need to use the same general guidelines that you use in hiring anyone, that is, you want somebody that is experienced and who is honest and forthright, who makes a good impression, who can communicate well with a judge and a jury, and who will give you his or her honest opinion about the subject matter. Indeed, one of the valuable things that you can learn from an expert if you hire the person before you bring suit is that you don't have a case at all. You can save yourself and your client a lot of money and agony by learning this at the time your expert renders the pre-suit report. So you do want an expert who is going to give you an objective evaluation of the case, an expert that's going to be credible and that will give you a comprehensive written report. You want the report to review all of the factual bases of the expert's investigation, all the factors that go into the background information leading to the opinion, and then to spell out the expert's opinions giving the data considered by the expert and arriving at each of the opinions and the basis of the expert's opinion. In meeting with your expert, writing your expert, furnishing data to your expert, you have to be constantly aware that your communications with your expert are not necessarily privileged communications and that the information in your expert's file, including data provided by you and correspondence from you to the expert can be obtained through discovery or by subpoena in many situations. Accordingly, you need to be very careful to be fair and objective in providing the expert information based on which he or she is to make their opinion. As in the case of preparing your client to testify, you are going to be preparing your expert to be firm and unwavering as to opinions that he or she has and to be very careful not to testify about things that they are not sure about or have no opinion about. I think a good answer for an expert to give in a deposition as to one of these latter matters is "I have no opinion on that." This makes more credible the opinions the expert does have and the basis of the expert's opinions. I always tell my expert, especially one that has not testified in court before, that he or she is being retained as an expert to give their opinion on a specific technical matter, and that as long as they give an honest credible opinion supported by facts and data in their experience and training, their opinion will be considered by the trier of fact. I tell them that their opinion is their opinion, and nobody can really change the fact that they have that opinion, especially if they have given it before the suit was brought and the possibility existed that based on their opinion, no suit would have instituted at all. I think that examining a good expert is one of the easiest things for a trial lawyer to do if you have done your homework and have been careful to present the expert with an objective set of data. The reason I think this is a pretty easy part of your case is that the expert should be the one who is going to do most of the talking. Therefore, when you have your expert on the stand, you are simply going to ask them about their qualifications, education, training, and experience and bring the qualifications down to the specific subject matter involved in the case. You are then going to ask the expert whether there came a time when they were given some data by you and to testify as to what that data was and what information was supplied to the expert. You are then going to ask the expert what they were asked to do with the data, what was the subject matter of the opinion they were asked to give. Next, you will ask the expert whether they did in fact form an opinion about the specific topic in question and what the topic was. The next question of the expert could very well be a hypothetical question. The reason for that is that in many situations, there is information before the judge or the jury that the expert has no personal knowledge of, but which is going to form a material basis of the expert's opinion. Therefore, you need to prepare yourself to ask the expert a hypothetical question, and you need to do this in advance of his initial deposition, and you need to tie down the material bases of his opinion by listing them, reviewing them with the expert, and being sure that those necessary predicates to his opinion are things that are sufficient for him to give the opinion and also things that will be in evidence at the trial. Some judges will require that the evidentiary predicates for the expert's opinion be in evidence before the expert gives their opinion. Other judges will allow the expert to testify on the assumption that those facts exist, or will be shown, cautioning the jury that if they find that they do not exist or if no evidence is submitted on the factual predicates, that they can consider that in evaluating the expert's opinion. If the expert is going to give an opinion simply based on their examination of certain data which is limited to their evaluation of that data, then a hypothetical question will not be necessary. Finally in examining the expert, you will be asking the expert, once they have given their opinions, either based on a hypothetical question or otherwise, what the basis of those opinions is, and at that point, the expert would explain in detail why they had arrived at the opinion that they have, and you would then conclude your testimony. Cross examination of your expert is going to be one of the toughest challenges that opposing attorney has because if you have carefully laid the ground work for the expert to testify; there is not going to be very much that your opponent can do with the expert's testimony. If the expert is a "professional hired gun," your opponent will get transcripts of the expert's prior testimony, looking for inconsistencies between that testimony and the testimony they just gave. If your expert's opinion is based on a hypothetical set of facts, your opponent may question the expert as to whether or not if the trier of fact found that those facts did not exist, whether that would change the expert's opinion, and from a logical standpoint, the expert is going to have to say that it would change their opinion. Otherwise, there is really not much that your opponent can do with the expert if they have given an honest comprehensive opinion on the subject matter of the case, and the danger that your opponent has in cross examining the expert is that the expert will give further testimony substantiating his or her opinion, thus strengthening it in the minds of the trier of fact. As above stated, it is important during cross examination for your expert to stick to his guns as far as the critical parts of the testimony are concerned and not go out on a limb and volunteer opinions as to matters that the expert really doesn't need to give or is not really sure about. V. THEME OF YOUR CASE All the really good experienced trial attorneys that I have ever heard at seminars have taught me that you must have a theme of your case. It's kind of hard to pin down exactly what this means. I think it's really important not to have a theme of your case that is naive or just trumped up for the sake of having some kind of a selling point for the jury. Having a theme for your case involves your respecting the intelligence, sophistication, and judgment and experience of the jury. I think one of the deadliest mistakes that a trial lawyer can make is to insult the intelligence of the jury. If they think that you are attempting to sell them a bill of goods, they are very likely to make a wholesale rejection of your case. Therefore, in choosing a theme, it needs to be a real theme, an honest theme, one that's supported by the facts and law, and one that you can confidently argue during the trial. The theme that you have for your case is not necessarily something that you need to disclose in discovery. The theme really can emerge in your opening statement to the jury, in your evidence, in your arguments on objections to evidence during the course of the trial or on motions that come up during the trial, memoranda of law that you file with the trial judge during the trial, and of course, in your summation and requests to charge the jury. During the course of your initial investigation and during the course of your discovery post-suit and during the course of your trial preparation, you are going to discover, as I have said before, little inconsistencies in your opponent's case, little problems with the credibility of their witnesses, little facts that you can use to argue your case, and little things that occur to you that make you look for specific additional data or witnesses. During the course of these mental exercises, you will not only be reinforcing your theme, but you may very well come up with sub-themes. Sub-themes are pieces of evidence relating to statements by your opponent or their witnesses, telling pieces of evidence that are inconsistent with their position in the case, actions by the defendant in the case which are designed to cover up their liability, things that reinforce your theme and that you can argue to the judge and the jury during the course of the trial. As I said before, these can very well be the difference between winning and losing your case, and in my view, they are always the product of hard work during the pre-suit and pre-trial stages of the case. They do not occur to you as a rule during trial. Having said that, I would like to just say that having critical things occur to you during the course of the trial does happen. I like to believe that the reason it happens is because you have thoroughly prepared before suit, during the pre-trial stages, during the trial preparation stages, during discovery, etc. so that you are "steeped" in the case by the time you hit the courtroom. Then what sometimes happens is that you're into the evidence, you're into the arguments to the court, you're interviewing witnesses before they go on the stand, you're reviewing exhibits before they're submitted, even though you have done all these things many times before, and all of a sudden, it hits you between the eyes that there is a witness out there or a document out there or a piece of evidence out there that you have not thought of, in spite of the fact you have spent 300 hours on this case, and you get your paralegal or assistant to check on this particular fact, or you issue a subpoena, or you make a phone call, and all of a sudden, the whole posture of your case changes dramatically. That may sound like just a story, but I would challenge you to interview trial lawyers who have tried hundreds of cases and ask them how many times that has happened to them. It has happened to me many times, but as I have said before, I really believe it is a product of the work you have done on the case before you get to court, not blind luck after you get there. In any event, all of these things enter into your developing, enunciating, and bolstering your theme during the course of the trial. It is the theme that ties all of your witnesses and evidence together. It is the theme that makes your case credible. It is the theme that allows you to get a little excited with the jury when you are making your summation. VI. TRIAL PREPARATION Your preparation for trial, of course, starts in your mind at the time your client first walks into your office. As I have said before, the first few decisions you make about whether to take the case at all depend in part on how the trial is going to go, what you think you can prove in court, how your client is going to come across in court, etc. Accordingly, as you go through the case, you are really just honing down your trial preparation, which you have envisioned from the start. Damage Evidence I'd like to start out in talking about trial preparation with the topic of damages, and I like to do this because I think a lot of us forget as we go through the adventure of a full blown contest, how important it is to focus on the issue of damages and how to handle the issue of damages with the trier of fact. I certainly have been guilty of treating damages as sort of an afterthought when I am working very hard preparing a case and trying a case, which may have some difficult liability issues involved with it. So you really need to keep in mind how important it is to, at the appropriate time and in the appropriate way, address the issue of damages. Whether you are dealing with a personal injury case or a commercial case, I think it is important for you to humanize your treatment of damages to the trier of fact, and by this I mean that you need to be able to show that the damages that you are claiming in the case represent actual injuries to your client. Whether you are talking about a personal injury case or a commercial case, you are talking about injuries to human beings that are affected by the defendant's conduct. If you are talking about a copyright infringement case, and you
are representing the copyright holder, the damages represent an invasion
of that person's right to the fruits of their creative labors. Your
claim is that the defendant has invaded those rights and taken away
things that your client, by hard work and creativity, has produced.
This is a human loss that your client and his or her company have
suffered. If you are talking about a personal injury case, of course,
you client has suffered pain and suffering and medical procedures
and emotional trauma and permanent loss of function and out-of-pocket
medical expenses, and those are not very difficult to humanize. My own personal approach to proving damages is to undersell them rather than oversell them. Make sure you put in the evidence of the commercial losses that your client has occurred, and make sure you cover all the legal bases when you are doing that. Make sure you address all of the elements of damages in a personal injury case by witnesses as to pain and suffering, including close family members and your own client, witnesses as to the permanent disability that your client has and the effects on his or her daily life activities, vocations, recreation, etc., out-of-pocket medical and vocational losses, permanent disability and the effects of that on a long-term economic health and welfare. But don't overdo it. You can address these things in your summation, and you can do it honestly and passionately, but you will do it without overplaying it. In the trial preparation stage, you are simply making sure you are covering all the evidentiary bases so that you don't end up with a vacuum at the end of the case with regard to your proof of damages. Again, I am emphasizing this topic first because of the fact that you can get so consumed with proving liability that you leave effective proof of damages to the last minute. Preparing Witnesses You are going to start your trial preparation by organizing the materials that you've generated up to that point, and you are going to start to review those materials molecule by molecule. When you are using depositions to prepare for trial, you should have an index of the depositions so that you can readily locate particular pieces of testimony that relate to specific topics and plug those page numbers into your testimony notes when you are preparing the testimony of the witness. In preparing your own witness's testimony, your testimony outline should include the critical material matters that you wish to prove through a particular witness with appropriate highlight notes next to particular sections of their testimony which you need to be sure you nail down at the trial and references to any exhibits you are going to offer at particular stages of that witness's testimony. When you begin drilling that witness for court, you use those notes, go through the witness's testimony on tape; have a transcript prepared; return the transcript to the witness; have the transcript reviewed by you and the witness for omissions, errors, and then go back again either with that transcript or your original notes, and re-drill the witness. The reason I like to use tapes to drill witnesses is because when the witness is testifying at the practice drill, the witness is saying things that you're not hearing. You are not picking up every single thing that the witness says in response to your questions because you are focusing on the bigger picture; you are focusing on your questions; etc. When you go to review the transcript of the initial drill with the witness, you are going to find things in that witness's testimony that you did not hear them say, that may be very important to the case, and that you may want to pursue the second time around. You then are going to repeat the same process with the witness one or two more times before you actually put them on the stand and maybe make one more tape recording before the final drill, this time addressing all of the material critical matters with the benefit of knowing details that you missed the first time around. You will return the second transcript to the witness for review, and then, of course, you will discard the transcripts before the witness ever enters the courtroom. In the case of witness who has not been deposed, your initial interview with that witness, either before or after filing suit, is hopefully one that you have tape recorded so you have a transcript of that witness's testimony which you can use to prepare that witness for trial in the same manner that I have described with regard to deposed witnesses. It has been my experience that my witnesses like me tape recording them in preparation for trial because they never have to ask me what I am going to ask them in court. They know exactly what I am going to ask them in court. And moreover, they know what they are going to say in response to my questions, and they know what I think of what they are going to say because we've been through it a couple of times. And they know how not to answer questions. And they know how to answer questions. When they are being taped they feel like they are "on the record." The whole trial prep experience has been as helpful as I can make it in preparing that witness for the experience of going to court. I don't like to "go after" my own witnesses on cross examination in pretrial drills. Rather, I like to address the issues that will be raised by the opposing attorney on cross examination during the course of the drill of that witness and help the witness address those issues along the way. The reason I like to handle potential cross examination this way is because if you prepare the cross examination of your own witness, and you "become" the opposing attorney, and then you launch an attack on your own witness as part of a pretrial drill, you may run the risk of convincing that witness that he or she is really vulnerable, doesn't really know what they are talking about, and will not hold up in court under cross examination. If you have successfully cross examined them in the pretrial drill, you may produce a problem that you didn't have. Accordingly, I like to prepare the witness for cross examination in a more positive way by reinforcing with them what they do know and what they are sure of and helping them to handle cross examination topics, rather than showing them that they are not going to be able to handle cross examination topics by going after them in a pretrial drill. You also, of course, are going to be preparing the examination of
your opponent's witnesses during the trial prep stage, and again,
with regard to deposed witnesses, you are going to be preparing cross
examination based on their deposition testimony, using nothing but
leading questions as Irving Younger says, and being ready to correct
any "wrong" answers by calling the witness's attention to
their deposition transcript. You also have the little sub-themes that
I talked about before to use to attack adverse witnesses with inconsistencies
between their testimony and what you think you can prove by documents
that you have thoroughly reviewed or by other evidence that you have
discovered in your labors that will serve to undermine their testimony.
Some of the cross examination questions your are going to ask adverse
witnesses will be written out by you, so you ask a question in exactly
the way you want to, and again, it will be a question that you know
the answer to from your prior labors. I like to ask my cross examination
leading questions by starting out with the phrase, "isn't it
true that ......" I think that serves to emphasize to the jury
that you are seeking an admission from the witnesses and that it's
going to be one that is going to help your case and that they should
pay attention to. I also think it's not a bad idea during trial preparation
and preparing for cross examination of adverse witnesses to do a drill
to yourself out loud, or more ideally, have someone play the part
of the adverse witness so you can actually attempt a cross examination
of them. Once you have meticulously worked your way through every single question you are going to ask every single witness during the entire trial, and of course, cross checked all the testimony against other testimony to make sure you have covered everything you want to cover through your examination and cross-examination of all the witnesses, then you are going to go back to your complaint, and you are going to prepare your opening statement based on the evidence that will be adduced at trial, the allegations of the complaint, and the approach you want to take in the opening statement to the jury. In preparing your opening statement, most judges are going to limit you to statements about the claims in the case and what you think the evidence will show. They will not allow you to give an oration as though you had completed your proof in the case, which, in general, they will allow you to do in your summation. So you need to be careful in preparing your opening statement, not to go outside the bounds of what the judge is going to let you do in your opening statement. One important thing I think you can do in your opening statement is to educate the jury on what the issues in the case are and how they should handle them. You should do this in a completely honest, candid, objective way. What does the plaintiff claim? What does the defendant claim? And what are they going to be asked to do in evaluating the evidence? And how should they approach that evaluation during the course of the trial? I think the jury will appreciate your educating them on the claims in the case and what the evidence is intended to do on both sides and how they should handle it, rather than launching into a one-sided dissertation on why you should win the case. If the jury doesn't understand the issues in the case at all as they sit there listening to the opening statement, they surely are not going to be prepared to adopt your side of the case. So you need to act as an officer of the court and educate them on what the case is about, and this maybe can include some terminology. If it's a commercial case, what is the relevant terminology that is used in the particular trade or business that is involved in the lawsuit? What are the technical terms? What are the technical procedures that they are going to have to understand in order to evaluate both sides of the case? They will appreciate your addressing those in your opening statement rather than launching into a diatribe against your opponent. In the federal court and in many state courts, the jurors will be allowed to take notes, and if you help them at the first part of the case in understanding what the case is all about, they will appreciate that. They will take notes. They will use those notes during the course of their evaluation of the evidence, and they may appreciate the help you have given them by the time they get to the end of the case. So in preparing your opening statement, address the issues that are raised in the complaint. Don't oversell your case. And try to educate the jury in the task that is before them. At this stage of your efforts to thoroughly prepare for trial, I think it is a good idea for you to look at your complaint to see whether there should be any amendments made. In general, courts will allow you to amend your complaint at any reasonable time, sometimes even including during the trial. If you are at a pretrial stage and specifically including preparing for trial, it is very important for you to take a look at your complaint to see whether you have alleged everything properly and whether you should be making any amendments. The sooner you amend your complaint, the less likely it will be for your opponent to successfully argue to the judge that they have prepared their case on another set of allegations and that the amendment you are attempting to make is prejudicial to them. The more steeped you are in the facts, and you certainly should be well steeped in the facts by the time you get into your trial preparation, the more important it is for you to weigh the facts that you know against the allegations in the complaint so that there will be no unfortunate deviations at trial. Once you have labored through the witnesses' testimony and looked at your pleadings and opening statement, it is time for you to revisit your legal research, prepare your requests to charge, prepare any trial memoranda that you wish to submit on evidentiary issues or other issues. If you are in the federal court, your requests to charge need to be consistent with the law of the circuit in which you are litigating, since every circuit has its own approach to the law. If you are in the state court, your requests to charge must be isolated to one topic, limited to one page per request, tailored toward the facts and allegations in your particular case, and supported by in-point case law authority. You should also consider during this stage of your trial preparation the matter of asking interrogatories to a jury. It can be very helpful to a jury to have laid out to them particular factual questions which are material to the outcome of the case and which can help them arrive at a comprehensive consistent verdict. You should also draft some interrogatories during your trial preparation stage and take a look at them and see whether they will help the jury in their deliberations. If you think that they will, you should submit these along with your requests to charge and ask that the court submit them to the jury in addition to general verdict forms, or in the case of the federal court, in lieu of general verdict forms, if you think that would be more appropriate. Interrogatories may also be critical to your case. Under the general verdict rule in the absence of interrogatories addressing specific factual issues, parties can be precluded on appeal from attacking one basis of an adverse general verdict where another pleaded basis would be supportable. Memoranda addressed to in-trial issues which you anticipate, either
evidentiary or otherwise, should also be prepared at this point, and
a decision should be made by you as to whether to make motions in
limine, or whether to address any legal issues during the trial. Motions
in limine in general can only be addressed to the judge who will try
the case. If you make a motion in limine in the state court before
trial, in all probability, the judge is going to defer the decision
to the trial judge. In the federal court, motions in limine can be
made at the time of the filing of the final pretrial order. It is
not always a good idea to file motions in limine because the facts
that you are predicating your motion on may not be the facts that
exist at the time the issue actually comes up at trial. On the subject of trial preparation, a lot of really good attorneys use trial books, and in the book, they put their research on issues that may come up during trial. They put their testimony outlines for their witnesses. They put notes and references to exhibits, and are able to sit at counsel table with the trial book and simply walk themselves through the trial page by page. This is something that I have never been able to do for a couple of reasons. First of all, the testimony of the witness, in my experience, is in constant flux. When you get a witness on the stand, whether on direct or cross examination, that witness's testimony is going to change question by question, even though you have worked on it a hundred times and even though you know where you are going and even though question by question you are pursuing a line of questions for the witness that you need to complete for purposes of proving your case or disproving your opponent's case. The problem that I have always encountered with a book is that it is an artificially static document which would have a tendency to make me too lazy to go through the effort of changing it. Whereas, in the case of using a file of testimony notes, documents, copies of exhibits, random jottings during the course of my trial preparation, when I go to pick up the testimony file for that particular witness, I've got much more information in that file than I could ever put in a trial book without simply stuffing things in to the pages. I can constantly change my notes with regard to what I am going to ask that witness, and I don't have the additional task of cutting, pasting, and clipping in order to put something in a looseleaf book. There is just too much usable material in my file as to any one witness, including depositions, copies of exhibits, testimony notes, deposition indexes, etc. for me to ever be able to get everything into one trial book which will remain in a stable condition throughout the trial. This is strictly a personal preference issue, and of course, there are many excellent trial lawyers that use trial books, and they are a way to organize your trial preparation witness by witness, exhibit by exhibit, so that when you walk into the courtroom, you have a structure for your trial from opening statement to summation, including your factual, legal, and exhibit materials. I do like to use a book for two purposes. One, I like to have my exhibits in a trial book, marked and indexed for use by the judge, by me, and by my opponent. And secondly, I like to have a document book during my trial preparation stages of the case of all the documents in chronological order. Putting things in chronological order during the trial preparation stage of a case is very educational. It helps you tie one event into another event. It helps you tie a letter that a witness may have written to a document that was generated that may have some significance in evolving and advocating a theme for your case. It may produce one of those sub-themes that I was talking about before. So making a time line and putting things in chronological order, I think is a very good way to prepare for trial and probably is something that you haven't really been able to do until your discovery is completed and until you are in the trial preparation stage. During your trial preparation, you will want to consider the use of graphics during the trial. Graphics can be used for two main purposes: 1) to scan exhibits and to project them onto a screen with a projector so they can be viewed by the jury, the court, and the witness while a particular witness is testifying about that exhibit. PowerPoint or other similar computer graphics can be used by the witness to highlight or emphasize particular parts of the exhibits; 2) the other use of trial graphics is as charts, diagrams, or illustrations to be used by experts or other witnesses in illustrating the testimony, again by creating a graphic exhibit which can be displayed on a screen and used with PowerPoint or other computer graphics to illustrate the testimony of a witness. In this day and age where juries are increasingly sophisticated and expect good trial lawyers to be able to illustrate and graphically demonstrate their case by visual aids, it is very important for trial counsel to keep in mind that the days of dryly reviewing testimony and exhibits are over. Juries expect to be educated visually, intellectually, and audio-graphically. While you are in your trial preparation stage, you need to give
serious thought to the admissibility of your testimony and exhibits
and the admissibility of your opponent's testimony and exhibits. Just
because you have a document or a photograph or a piece of paper that
you think is going to be helpful to your case or harmful to your opponent's
case doesn't meant that it is going to be admitted into evidence.
What kind of a foundation are you going to have to offer the document?
How are you going to prove the authenticity of the document? Is the
document hearsay? What is the relevance of the document? All these
things have to be addressed by you in the trial preparation stage
so you do not get caught with your pants down at the trial by assuming
that a document is going to be admitted. The same care has to be applied
to testimony of witnesses. In general, your witnesses can only testify
to things that they have first-hand knowledge about. A witness who
is going to testify about what somebody said may not be able to do
so unless the statement that they are testifying about was made by
an adverse party or his or her authorized representative or is otherwise
within a hearsay exception. The same goes for testimony by the witness
about a document not in evidence. Finally, in the trial prep stage, you can make a tentative decision
as to order of witnesses. If you have a client, and this goes back
to the initial interview stage of the case, who makes a good impression,
is credible, can give the jury a comprehensive picture of the entire
case from During your trial prep stage, you need to keep continually in mind what I have said before, which is that the fact that you have a structure for your proof in your head, and the fact that you have certain witnesses that you intend to call to prove your case, and the fact that you have decided on an order of witnesses, etc., etc., should never be cast in stone. In other words, as human beings, we have forgotten certain things; we have missed certain things; we have failed to anticipate certain things, and some obvious critical part of the case that you really need to think about is very often sitting out there in the wilderness while you are in the trial prep stage, waiting to be discovered or not discovered. If you don't discover it, you many lose the case. If you do discover it, you may win the case. So never be wedded to the way you are going to put your case on or defend your opponent's case. Never think that there isn't something else there waiting to be discovered by you for you to use at the trial. Always be looking for that additional witness, fact, piece of evidence that you have missed because many times it is sitting there. Many times it's waiting to be discovered, and if you don't continually think about that and look for that, even during the trial itself, you are not really doing your job. What I like to do to keep myself awake at night worrying about whether I have done everything I should do is to think about my opponents sitting in their office knowing this thing that I have not discovered and laughing about the fact that I have not discovered it. What is the thing that I have missed that I need to address at the trial, and how do I address it? VII. TRIAL The trial is a series of victories and defeats. An answer to a question can be a victory. The testimony of a witness can be a victory. A day in court can be a victory. And each of them can also be defeats. On my way home from court after a day at trial, I like to ask my paralegal or my client or someone who has watched the trial for the whole day, "how did we do today?". I may have a sense of how we did, but I really don't have a very objective laid back view of how we did. Therefore, you can't really judge the outcome of a case by one question, one witness, or one day. What may seem to you a big event affecting the outcome of the case on day one may completely change with the testimony of a witness, the answer to a question, a judge's ruling, etc. on day two. Therefore, you need to be emotionally and intellectually prepared for the ups and downs when you step into the courtroom. The first emotional adventure you are going to have when you get into court is that you are probably going to be confronted with some last-minute settlement negotiations while you are trying to focus on the hundreds of things that you need to focus on to get started with the trial itself, and you are going to need to be prepared to deal with the possibility of settling the case while you are thinking of all these other things. There is no roadmap for doing this. In general, you have probably negotiated your way through the case from the time you brought suit up until the trial. You have talked about settlement possibilities with your client if there have been negotiations, and you have a general idea of what would be an acceptable settlement resolution for you. So when you walk into the courtroom, you have a frame of reference against which to weigh any settlement proposals. However, in the emotion of the moment, it may be a lot more difficult for you to make rational decisions about settlement when you are about to pick the jury. There are those occasions when the opposition simply "caves in" and offers you a settlement that is basically what you have been looking for all along, which can sometimes make you wonder whether you have been mistaken in your evaluation of the case. However, in those situations when such an offer is made, my general recommendation would be to accept that and go home. If you have had the benefit of reviewing and re-reviewing and discussing the thing over and over with your client, and you have a settlement in mind that you think would be reasonable, and you get to court to start for trial, and the other side offers you that settlement, I think that's as good as it's going to get, and to turn that down and go to trial with all the vicissitudes attached to that decision, I think as a rule is a mistake and that you should understand that things could get worse instead of better from that point on. On the other hand, for the same reason, you should reject a lowball settlement proposal offered in the emotionally charged context of the start of the trial. If you have prepared your case, you have evaluated your case, you have discussed your case with your client, you have a range of settlement options that you feel would be acceptable, you should not dispose of your case for a lowball number at the start of the trial simply because of the uncertainties of trial, which your opponent shares equally with you. Having said all that, you are going to face situations where the judge calls you into chambers, either separately or together, gives you his or her views of the case, makes a recommendation for settlement, which is in the agonizing middle range, and you are going to have to deal with that situation with your client. If both sides end up with a meeting of the minds in the agonizingly middle range, it's probably a good disposition, and everybody should grumpily leave. If you don't, then you are ready to start the trial. Jury Selection The first thing you are going to do is introduce the case to the jury panel, which is done by a combination of remarks from the judge and the lawyers about the nature of the case and the names of the persons who will be involved as lawyers and witnesses. Based on that introduction, certain members of the jury panel will disqualify themselves, and you are then ready for the full personality investigation called the voir dire, which literally means "speak the truth," so you will know whether to select someone as a juror. In the federal court, the voir dire is generally conducted by the federal judge, in some cases by asking the first 10 or 20 panelists to state a brief autobiography and then asking follow-up questions based on suggestions from the attorneys. In the state court, the voir dire is conducted by the lawyers outside of the presence of the judge, hopefully in a succinct, relatively balanced way in order to select between six and ten neutral, intelligent jurors who are available to hear the case. As a rule of thumb, I do not select a juror unless both my client and I agree that the juror should be selected. If either one of us feel for any reason that the person would not make a good juror in this particular case, then I excuse the juror within the limits of my peremptory challenges. Secondly, I think almost everybody wants relatively intelligent people who look like they are interested in sitting on the case and will listen to the evidence in the case. Thirdly, if you interview somebody who you think is going to make a gangbuster juror for your side because of the way they answer the questions posed by the attorneys, you can be pretty sure that that person is not going to be on the jury because they will be excused by your opponent. Fourth, as far as questions to ask a juror are concerned, I think rather than dissertating to a jury panelist, which I think a lot of attorneys do, it's important to talk with and converse with the human being that you are interviewing one-on-one, listen to their answers, ask follow-up questions to the answers, and try to get an understanding of who they are and how fair and equitable they will be as a juror. I don't think it makes sense to use the voir dire as an opportunity to indoctrinate a juror about your case or about the approach you want that juror to take with your case. I think that's an insult to the intelligence of the juror, and I don't think they are going to adopt that frame of reference to decide the case when they are in the jury room at the end anyway. They are going to evaluate the case based on what they have seen and heard in the courtroom. After the jury is selected, you are ready to begin your opening statement. As I have said before, your opening statement is not the time for you to launch into an impassioned oration as to why you should win the case. The opening statement is an opportunity for you to educate the jury on what the case is about, educate the jury on what the claims of the parties are, including your opponent's claims, educate the jury on what factual issues the jury will be to decide, and educate them on what kind of evidence they will be listening to or seeing to help them decide those issues. Then and only then can you say to them in a way that respects their intelligence as people that are going to listen to both sides, that based on the evidence that they hear, your client is going to ask them to find in his or her favor. If you overstate your case during your opening statement, your opponent is going to purchase a transcript of your opening statement and remind the jury of what you said during summations. So don't overstate your case in the opening statement. In general, I think it's a good rule not to overstate your case at all, even in the summation. You are submitting your case to the jury for decision. Let the jury decide the case. Do everything you can to advocate your client's cause. Do everything you can to educate the jury on why they should adopt your client's cause, but never step over the line and tell the jury that they must decide something in your favor. Respect the fact that they are going to do their job, not you. Use of Witnesses You are now ready to call your first witnesses, and as I said before, your first witness, if possible, is going to be a good, credible, personable, comprehensive witness who is going to give the jury the best possible picture of your case in order for you to put your best foot forward. You and this witness should have prepared the testimony in such a way that it will be educational, straightforward, succinct, and persuasive. The last thing in the world you want to do with your first witness is get lost in minutia, go off on tangents, drag the testimony out ad nauseam, get bogged down in objections, etc. Not only should you have prepared that witness to present a confident, straightforward story to the jury, but you should have prepared that witness to stand up well on cross examination. To know that witness is going to stand up well on cross examination is to listen to the question that your opponent asks the witness. Make sure they understand the question and know the answer to the question. Give a short responsive answer to the question, and wait for the next question. The witness should be alert for the "why" question, which gives him or her an opportunity to explain your side of the case, and should be alert for any question which, in an open-ended way, allows them to explain or describe something to the jury, which again gives them the opportunity to give an answer which will be helpful to your case. A good cross examiner, as I said before, will ask nothing but leading questions, which in general can be answered "yes" or "no" by your witness, and you should therefore caution your witness not to agree with the cross examiner if the way the leading question is phrased creates a scenario which should not be agreed with. In other words, your witness should not buy into the leading questions asked by the cross examiner unless the question is absolutely square with that witness's testimony. The way to answer a question like that, which is not going to be adopted by your witness, is simply to say, "no" and stop and make the cross examiner ask another question, not to say, "no" or to explain or to argue or to make a dissertation which is going to probably anger the trial judge and may lead to further questions that will damage the witness's credibility, and concomitantly, your case. Once you have gotten through your first witness, you are then going to be calling your subsequent witnesses who will corroborate and amplify and complement the testimony of your leading witness. Again, these witnesses should be cautioned to testify confidently and unswervingly as to what they know and are sure of, and not testify or answer or volunteer information about matters that they are not sure of. In terms of the conduct of you and your client and your witnesses in and around the courtroom during the trial, I think this subject is worth a discussion in your office before you walk into the courtroom. The demeanor of your client and witnesses in front of the judge and the jury, both on the record and off the record, is going to be part of the basis of opinion and judgment that they form concerning your case and the testimony of your witnesses. Accordingly, it is really important for them to be polite and respectful at all times of both the judge and the jury, and not engage in extracurricular discussions of the case. Never comment or gesture or gesticulate in response to testimony of the other side. And never try to showboat, play up their particular testimony, or otherwise attempt to patronize the judge or the jury in connection with their appearance in court. Their responses to questions should be direct, tailored to the specific question asked, polite, never argumentative, yet confident. They should be admonished to be themselves, act themselves, and never try to put on any kind of act in front of the jury. Juries will react negatively to this type of behavior on the part of witnesses and clients because it insults their intelligence and casts out on the credibility of your case. In terms of your own conduct in the courtroom, I think it is important to remember what you are doing at all times. In other words, you are obviously going to make arguments on behalf of your side of the case. You may make objections to evidence brought in by the other side of the case. But you want to be careful to do so only for purposes of advocating your cause and never for purposes of harassing your adversary or grandstanding to the jury. You always want to remember that as an officer of the court, it is your job to advocate your cause to the jury and the judge, but to do so in a way that respects their intelligence and the integrity of the system. I believe that if you conduct yourself during a trial with that in mind, your credibility and that of your client is enhanced when it comes time for the jury to make a decision on the case. For the same reason, I think you should maintain an attitude of aggressiveness in making objections, but not make objections to things that really will not have an adverse effect on your case and may in fact alienate the judge and the jury. Many of your key objections will have been researched and prepared during your trial preparation stage of the case because you will anticipate certain proffered exhibits and testimony and will be prepared to object to it. If you can tune in to the way the judge is receiving the case, whether in a jury trial or a court trial, you very often have a judge who wants you to make objections but is powerless to make objections for you. The most typical example would be questions that call for cumulative or repetitive evidence, leading questions, questions that call for irrelevant testimony. The best way to find out what the judge is thinking in that regard is to make some objections to those kind of questions and see what the reaction of the court is. You may find the judge is eagerly awaiting these objections and may immediately rule in your favor. Since the federal and state courts are increasingly adopting the practice of pre-marking exhibits, many evidentiary battles that would otherwise occur during trial, have been avoided, and many exhibits are simply admitted at the start of the trial. I think one thing that is very important to do before and during the trial is to make sure the judge is educated on your legal and factual theories. The best way to do this is with a trial memorandum, which outlines your factual and legal claims and which may address evidentiary issues which will come up during trial. Whether or not the trial judge has read your trial memorandum before trial, it can be used to address arguments that come up during the trial on evidentiary matters and otherwise. If you have an inexperienced judge or a judge who for one reason or another is not grasping your legal and factual theory of the case, a trial memorandum is an excellent way during the course of the evidence to explain to them what you are trying to do and give them an opportunity to review your authorities before they make rulings, which may be erroneous. Things that you may think are obvious in your legal theory of the case or the authority for part of your argument may not be obvious to the trial judge for a variety of reasons, and it is important for you to be able to map out to the trial judge during the course of your trial with clarity where you are going, both from a legal and evidentiary standpoint. The trial memorandum helps you do that. In a jury trial, a lot of this will be done and should be done in the absence of the jury. You want to be very careful in the course of a trial not to engage in debates over evidentiary matters in front of a jury. Most judges want you to do that during the breaks, before the jury is called, or if necessary, after asking that the jury be excused when you did not anticipate a matter coming up that should be debated in their absence.
Cross examination is always done by asking leading questions. Cross examination seeks to ask the witness to admit or deny certain facts, almost always facts that you know the witness should admit or will admit. Cross examination is also used to test the credibility of a witness by pointing out inconsistencies in his or her testimony, prior inconsistent testimony, improbabilities in what the witness is trying to say, or lack of knowledge of the subject matter about which the witness testified on direct examination. Indeed, you could almost make an outline of your cross examination using those as the subjects. When you have finished your cross examination on those topics in those categories which are available to you, sit down. Do not continue your cross examination because you think somebody thinks you should. Do not ask the witness to repeat testimony that was harmful to you. The cross examination which nails down a couple of admissions from the witness to the effect that his or her knowledge of the subject matter is limited or is a different version of the facts than given at an earlier time, or that there are inconsistencies inherent in the story being put forth by the witness, which cross examination terminates quickly is far more effective than a long, drawn out ineffective cross examination which allows the witness to give another dissertation on what he or she testified to during direct. Ask leading questions. Be abrupt. Nail down the points. Sit down. The judge and the jury will both appreciate it. Offers of Proof Offers of proof are oral or evidentiary submissions to the trial court of evidence that is being objected to or may potentially be objected to which you wish to adduce in front of the jury. The offer of proof is made in the absence of the jury. The trial counsel should be careful to completely cover all aspects of the proposed evidence in the offer of proof and to cite authorities for why that evidence is admissible, and of course, if you are objecting to the evidence, authorities as to why the evidence is not admissible. Offers of proof are essential in order to fully and completely educate the trial court and the appellate court on what it is you are trying to adduce through the witness and why it is admissible. Many judges will allow you to present offers of proof by live testimony of the proposed witness, along with proposed exhibits. Where crucial evidence is objected to, you should be prepared to present that evidence in the absence of the jury in the nature of an offer of proof. Rebuttal Evidence Rebuttal evidence is one of the most overlooked and underused weapons in litigation. Rebuttal evidence should be prepared while you are preparing for trial because you are in a position where you can anticipate what your opponent is going to adduce as evidence in his part of the case. Therefore, you should have one or two good rebuttal witnesses prepared to rebut your opponent's case. These witnesses must limit their testimony to rebutting things that are sought to be proved in your opponent's part of the case and cannot simply be called to rehash or restate or repeat evidence which you have already produced. With this limitation, however, if you are the plaintiff in the case, you can produce some effective rebuttal evidence which will both address things brought up by the defendant's witnesses and allow you to put a couple of good effective witnesses on the stand to finish up your part of the evidence. The rebuttal part of the case is a good time to bring up things that have not been raised before that will go to disprove your opponent's claims. It is a good time to put in the minds of the jury some "final thoughts" which you can use in your summation. It is a good time to let the jury see a couple of good effective witnesses testify for your side of the case, maybe some of the same witnesses that have testified on your direct case. Let a couple of your good witnesses deal with some of the claims that the defendant has made. Don't go beyond rebutting your opponent's case. Specifically address parts of your opponent's case as a predicate to questions that you are going to ask your rebuttal witnesses. Let the witnesses testify pointedly, responsively, and directly on point with what your opponent's evidence has claimed. Leave the jury with the testimony of these few good rebuttal witnesses just before they hear your summation and the charge to the jury by the judge. Rebuttal witnesses can significantly enhance your chances of success in the trial. Prepare them in advance of trial, and do not hesitate to use them after your opponent has put on his case. VIII. SUMMATION AND CHARGE You are now ready for one of the most emotionally draining experiences that a trial lawyer goes through-the charging conference. The charging conference is the moment when for the first time in many cases, the lawyers get to look into the minds of the judge as to his or her reaction to the evidence, his or her reaction to the law that has been presented by the lawyers in their trial briefs and requests to charge, and his or her understanding of the issues in the case. It can be a frightening experience. If your judge is inexperienced or has not totally grasped what you and your opponent are litigating over, the charging conference is going to be your only real opportunity to educate the judge so he or she will give a proper charge to the jury. You are not there to induce the judge to commit error in the charge so you will have an appealable verdict. You are there to advocate a good, fair charge for your side of the case, but also to advocate a charge that will not be reversed on appeal. Accordingly, both you and your opponent have an interest in seeing that the judge properly addresses the legal issues that exist between you. You then have an interest to see that your legal and factual claims are submitted fairly to the trier, and your opponent has the same obligation. You, of course, have listened attentively to your opponent's evidence and know thoroughly your own evidence, so you know what has gone on in the courtroom. The judge may not. He or she may have been on the computer during part of the case, may have been interrupted by other matters, may have been sleeping through part of the evidence, etc. If they don't properly address the legal issues and apply the evidence in the case to those legal issues in their charge, everybody may be in trouble. So before the charging conference, you need to review your requests to charge, review in your mind the evidence in the case, and be prepared to defend what you want the court to tell the jury. Once this nerve-wracking experience is over, you are going to be sitting there with a written charge to the jury on the salient points of the case that is going to be given by the judge. Do not give up throughout this charging conference in attempting to educate the court on the legal and factual issues and on fairly putting to the jury your client's legal and factual claims in the case. After the charging conference is complete, you are ready for your summation. There are several basic things you should do in your summation. 1. Review all the evidence that is favorable to your case.
There are several ways to review your evidence. You can outline your evidence on a blackboard, which can be very effective. You can outline your evidence using graphics, PowerPoint, and either blow-ups of exhibits or scanned exhibits projected onto a screen, or you can outline your evidence on posterboard or construction paper with an easel. Include in your graphic presentation of your evidence, dates, names of witnesses, specific events that occurred, the evidentiary significance of those events, so that the jury will completely understand why you did what you did in your evidence and what significance it has to the case. Do this in an informative, educational way that strictly adheres to what you adduced in the courtroom and does not overstate anything. This will be extremely helpful to the jury in evaluating the case, and they will appreciate your having gone through that exercise. 2. Address Your Opponent's Evidence You cannot simply let your opponent's evidence sit there in your
summation. You must address it. You must argue to the jury why they
should not accept it. You should address inconsistencies in your opponent's
testimony. You should challenge the credibility of your opponent's
witnesses. You should point out why the jury can still find in your
favor even though they may accept part of your opponent's testimony,
but you must address your opponent's part of the case in your summation.
Your case has had a theme from early on in your trial preparation stage. Now is the time to enunciate clearly to the jury what your theme is and tell them why the evidence in this case has substantiated your theme. This is the mantra that they will carry into the deliberation room with them, and they will have tested all of the evidence and claims in the case, including the judge's charge to the jury, with reference to your theme and whether you have successfully convinced the jury that your theme is valid. 4. Humanize Your Case To The Jury Your clients are human beings. Their business is run by human beings. The events that gave rise to the lawsuit occurred to human beings. They are not in court because they want to be in court. They are there because they are human beings. They have a cause that they have not been able to resolve. The case is very important to them. The outcome of the case is very important to them. The evidence that you have adduced shows the effects on them as human beings of the conduct of the defendant. You therefore need to make sure that you emphasize to the jury the effects of their deliberations and verdict on the human beings that you represent. 5. Don't Misrepresent The Evidence Don't insult the intelligence of the jury. Don't try to explain evidence by giving directives to the jury as to how they should interpret it or make naive, unpersuasive observations on the evidence. If a witness has testified credibly about a certain matter, the worst thing you can do is tell the jury that the witness was incredible or that they should disbelieve that witness. You need to accept what has happened during the evidentiary portion of the case and argue your cause to the jury without making naive or dogmatic misrepresentations to them about what the evidence has shown. If they think you are doing so, your argument will go out the window, and with it, in all probability, your case. 6. Ask The Jury To Find In Favor Of Your Client Don't forget why you are there. You need to close your summation by asking the jury to find in favor of your client, and you need to address the issue of what you want them to do for your client. If you are seeking money damages in the case, you need to outline to them the elements of damages which they can award. I would again do this on a blackboard or using graphics to show the different elements of damages they can award and outline to them what the evidence in the case is that supports your claim that they do so. You should do this completely and thoroughly in your summation and not leave any part of this for your rebuttal, which should be strictly limited to rebutting your opponent's argument. If you suggest numbers to the jury in terms of awarding damages, you need to be very careful about how you do that. One way to do it is to break down the elements of damages that you have in the case, some of which may be specific special damages amounts which you can spell out in your summation. Others may be more nebulous, such as damages for pain and suffering or permanent disability. In the case of damages for pain and suffering or permanent disability, you can suggest just mechanisms to the jury by which they could calculate these damages. For example, in the case of pain and suffering, you could suggest to them that between the time of the incident giving rise to the lawsuit and the trial, x number of months have gone by, during which your client has gone through the pain, suffering, and discomfort which has been described in the evidence. You can then suggest that the jury might want to break down this pain, suffering, and discomfort by month, giving an amount per month and multiplying by the number of months prior to trial. In the case of permanent disability, you will have adduced evidence by way of the mortality tables to show what your client's life expectancy is, and you would be able to argue to the jury that they could give a dollar amount for each of the years of your client's future life expectancy for permanent disability pain and suffering. Once you have given your summation, you will carefully take notes on the summation of your opponent, and make marginal notes as to what points you want to rebut. You should specifically attack things that your opponent says in his summation that you do not think are fairly supported by the evidence, and point out to the jury that you have attempted to be faithful to the evidence and that your opponent has not in making that particular observation. You should challenge claims that your opponent makes during their summation which you do not think are valid or viable claims, and you should close your rebuttal by pointing out to the jury why your opponent's evidence has not been persuasive, why your opponent should not prevail in the case, and what wrongs against your client have been done by the other party, and what misrepresentations about those wrongs have been made in the courtroom by the other party, and again ask the jury to find against that party and in favor or your client. Charge To The Jury I was once trying a case with a friend of mine in front of an extremely
inexperienced and incompetent judge who was having some gastrointestinal
problems, which required him to excuse himself after reading my requests
to charge to the jury. Upon returning to the bench, the judge Another agonizing event that takes place before the final verdict are jury questions. Jury questions can often indicate the direction in which the jury is leaning, and therefore, I never like to have a clerk tell me that the jury has a question and sit at counsel table awaiting the arrival of the jury so that they can submit the question to the judge in open court. Often the judge will discuss the question with counsel before inviting the jury into the courtroom, advise counsel as to what answer the judge is going to give to the question, and seek input from counsel as to whether they agree with what the judge is going to do. This, of course, can be an important decision-making point in the case for you, and you should be extremely alert and prepared to make constructive suggestions to the court as to the handling of any particular question. After hopefully not too long an agonizing wait, your jury is going to return with a verdict in your case. The moment the jury walks into the courtroom, you will very quickly learn two things. Number one, you will learn who the foreperson of the jury is, which may very often be a surprise, and number two, you will quickly thereafter learn what the result of their deliberations have been. Hard work, a good case, good luck, good witnesses, thorough preparation all may have produced a victory for you. Good Luck.
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