Trial Theory

A person sitting on a jury in a resisting arrest trial in Detroit was removed from the jury after posting that it’s “gonna be fun to tell the defendant they’re guilty,” before the prosecution even finished presenting its case.  The post was caught by the defense lawyer’s son, who was reviewing jurors’ facebook pages.

This illustrates two things:  1) the presumption of innocence does not exist in our courtrooms – no surprise to any practicing defense lawyer; no matter what the law says, jurors presume a defendant to be guilty until he or she proves otherwise; and 2) the importance of social media such as facebook and twitter in investigating juries.

In South Carolina, there is no attorney conducted voir dire in non-capital cases, which means that we are flying blind unless we do our own investigation of potential (and sitting) jurors – we cannot talk to the jurors or question them before jury selection, and if we do not find some way to discover information about jurors we might as well take the first twelve.  One thing that we can do is check social media sites such as facebook and twitter, both before jury selection and during the course of the trial, and attempt to discover those with extreme or off-center opinions – we know that there are people who are compelled to post their every thought and action to social media sites throughout their day, and jurors are not exempt.

Last week I was working on preparing a client (lets call her “Witness”) for cross-examination, and I explained how police are trained to testify.  First, they take classes on how to testify effectively and connect with jurors, and second, they get plenty of practice over time.

With the first run at cross examination, an attorney from our office immediately got Witness into a rhythm – rapid fire questions, Witness fell into a rhythm of immediately answering yes, no, yes, yes, and the attorney was the center of attention in record time.  Witness was looking at the attorney as the attorney asked questions in rapid succession, and I felt my attention inescapably drawn from Witness to attorney.

We had a mock jury set up on one side of the room (six faces on the wall), and I explained that, even on cross examination, Witness had to talk to the jurors and not to the cross-examining attorney.  We try again, but this time as the attorney finishes the question I interrupt with a loud “stop! pick a juror,” forcing Witness to stop and think before answering, to find a juror to give the answer to, and then to take a moment to explain the answer or to testify for a moment about the subject the attorney had asked her about.  Rinse and repeat.

When Witness is looking at the jury, the jury is looking at her.  If Witness is looking at the cross-examiner, the jury is looking at the cross-examiner – Witness’ non-verbal language is telling the jurors that the attorney is the most important person in the room, and it is directing their attention to the cross examiner.  With some practice, Witness got it and at trial Monday and Tuesday you could see the improvement.

A police officer testified at the trial as well, and I received  a healthy dose of my own medicine when he not only stopped, picked a juror, but then refused to answer any question I asked and talked about whatever he felt like instead.  Like I said, they are trained to testify – not necessarily to testify truthfully, but to engage a jury and, in this officer’s case, to avoid every question asked.

It’s important to remember that our clients don’t have the training and experience of a professional witness like a police officer or an expert witness, and part of preparing for trial is to prepare our client and other witnesses to testify (truthfully and without avoiding answers), to engage the most important people in the room (the jurors), and to prepare the client or other witnesses for cross examination.

Trial prep begins the first day that we meet a new client,  involves a myriad of tasks and varies from case to case.  It can involve researching the legal issues in the case, gathering information and sorting that information as it comes in, meeting with witnesses, finding the story(ies) of the case, and finding the best way to present the evidence to a jury.

It occurs to me that I spend a tremendous amount of time preparing for that preparation – reading books on trial practice, talking to lawyers who have handled similar cases and brainstorming with them, attending seminars and constantly learning and improving.

The truth of the cliche, “the more I learn, the less I know,” becomes painfully clear as I continue in the process of learning trial practice and techniques, and I realize that it is a lifelong endeavor.

The methods that I am in the process of learning – cross-examination techniques learned from various people or books, used in different combinations depending on the type of case and witness, psychodrama which I have only scratched the surface of, methods of organizing information so that it is at my fingertips during a trial, storytelling skills, and more – these are all a part of preparation for all future trials, and when applied makes possible effective trial prep for any particular case.

I try to be aware, as each day passes, of whether I am only getting through each day’s tasks – returning phone calls, meeting with clients, responding to letters or motions from opposing counsel, putting out various fires as they arise – or whether I am also putting extra time into bettering myself as a person and as a trial lawyer.

It is never enough to just get by or to work only on the cases in front of me – extra time and study now can and probably will make the difference in someone’s life at some point in the future if I win their case because of the time that I spent learning today.

This type of trial prep happens after 5:00 and it happens on the weekends – when you have a busy and demanding law practice there is no other way to get it done.

I was talking with an associate a few weeks ago – I had been giving him a hard time about researching the law in a case we were working on – and he pointed out that on this blog there is no category for “research.”  In response, I suggested that there are “building blocks” that make up a successful trial.  First we need to know what our case is about – we need to know what the claims are and how they are treated by the law and the appellate courts.  We need to know the law that applies to our case inside and out, and, if we have not handled this exact type of case before, that involves extensive research and reading of appellate court opinions.  Once we know the law that applies to the case inside and out, then we can look for creative ways to apply the law to our case and expand it if possible.

Second, we need to have evidence that will support our claims – if there is no witness, no document, no videotape or audioclip that proves what our client has to say, then our client does not have a case.  This is not to say that all of our evidence will be lined up in a row and waiting for us when we take on a case – we have to find it.  We have to send out our investigator, we have to engage in discovery, look at incident reports, talk to witnesses, take depositions in a civil case, collect what we know that we will need to prove our client’s case.

When applied to a personal injury case, different lawyers have different standards that they apply when they decide whether or not to even accept a case – I believe that part of this first “research” level of building blocks is evaluating whether there is a claim at all (can it be proven); whether there are sufficient damages in the case to justify the time and expense of taking a case to trial (which means we shouldn’t accept a case for “settlement value”), whether it is possible to recover for our client on that claim (is there insurance or can the defendant pay for the damages they have caused); and whether it is a cause that we can feel good about (are we on the right side).

Once we know the law that applies to our case inside and out, and we know that we have the evidence to support our client’s claims, then we move to another level of building blocks, and begin preparing our case.  Then we begin to delve deep to find our client’s story, we can use psychodramatic techniques to better understand our client and the other figures in the case, and we begin to look for and find the best ways to present our client’s case persuasively to a jury.

For the better part of today I was reading and enjoying a trial transcript from another attorney who is light years ahead of me in trial practice and techniques, and reflecting on what is ahead of me in terms of learning trial practice.  The “practice” of law never ends – law school was the beginning of a life-long journey of learning that we will never graduate from.  It is an amazing thing, to stand up for another person in a courtroom against the power of the government or a corporation or an insurance company.  There is always more to learn, to become a better advocate for the people who need us.

In other words, in response to the statement that there was no category for research on this blog, I went off on a philosophical rant that didn’t help us one bit in getting the research done on that particular case.  At any rate, there is now a category for research on the blog.  For you.

Much has been said about the need – and the specific devices you use – to prepare for trial. There are witness outlines, direct and cross-examination outlines, voir dire, opening statement and closing argument notes, jury instructions, motions in limine, exhibit admission, evidentiary outlines, the list sometimes seems rather endless. And indeed, if your trial experience is anything like mine, there doesn’t seem to be any end to things you can do to make yourself more ready. I just want to try one case before I leave the law, where I feel completely ready and prepared – knowing there is nothing else I could have done. Doubt I’ll get there, though.

The purpose of all this trial preparation is often overlooked. When you are in trial – in any phase of trial – the secret to being effective is to be present in that moment. You need to be able to take the temperature of the judge, the jury, opposing counsel, the witness. You need to be aware of your mood, how you are being perceived by the people who matter to your case. You need to be able to really hear what the witnesses are saying, what opposing counsel is saying – because they are giving you valuable insights into what they think is important, where the weaknesses are in their testimony or their case – etcetera. This is pretty hard to do if you have things on your mind. Preparation helps calm your mind. The ultimate goal is reflected, in my mind, by the Zen expression “mind like water”. A calm, placid and undisturbed lake – no ripples or waves. Free to accept and reflect every change.

And that is where the hidden preparation can help you the most. When we think about trial preparation, we think about this case, this judge, this witness, this evidence, this jury, this opposing counsel. These are the variables that change from case to case – and become the focus of most of our preparation. But there are many other things at play that don’t change from case to case – yet form an integral part of the trial. They include the rules of evidence, the rules of civil procedure, the local court rules and the governing case law. And this is the preparation that can make the difference between winning and losing, every day, every trial, every case.

I always tell young lawyers (even old ones, actually) that the single best thing they can do to improve their trial skills is to read the rules, cover to cover, once a month. This means the rules that apply to your practice. Civil procedure if you do civil work. Criminal procedure if you do criminal work. And the rules of evidence if you ever try a case. Local rules too – BTW. They can be as important – if not more important – than the general rules.

The beauty is, though, you don’t have to give up movie night with the family in order to slog dutifully through the rules. Leave a copy in the bathroom (we all have to go). Read them one at a time. They don’t take that long. You will be surprised and amazed what gems are hidden in the rules that you have been practicing under for years. This amazement will continue every time you read them. As you get to know them better and better, the nuance of their application will give you insights that will make you far more effective in every phase of your case work-up. Simple, basic and straight-forward. You will be a better lawyer for it.

I wonder why it is that the success of a trial always begins with preparation, preparation, preparation? I have noticed that in the last few years,, it has been easier and easier for me to win cases.

For me,,, and maybe only for me,, it begins with preparation, preparation and more preparation.

I won a rather good large case recently for a client of mine and I can share with the you readers the secrets to winning as I see it. After all, the helpfulness of this article is trial preparation,, not telling all about whether you are plaintiff or defense,, but about preparation.

I find the challenges stimulating, and enjoy the battle in the arena whether the opponent is a rather large civil defense law firm or the “government”. I say,, it all begins with preparation.

In the most recent civil case I won,, I simply begin with jury instructions,, simply jury instructions.

I can tell damn near any lawyer in the country in about witness preparation, documents, pleadings, motions, etc., but they cringe at the simplest task of just doing jury instructions early on in the case.

I always begin backwards,, that is, I begin at the end and work towards the beginning, (after discovering the story).

Tell any of your “lawyer” friends how important it is to look at jury instructions,, and they wait until the night of the trial to do this,, tell those same folks prepare documents, exhibit lists and they do that without hesitation during the case.

The “Harvard” lawyers have killed 10,000 trees to prepare a file, but in reality, only 15 – 50 documents are actually used in trial,, why?

I will write more about other topics if you all even desire to read the words I write,, in the end,, the trial arena is only place in America where a man or woman can stand equally against power, money, greed and overwhelming odds,,, and still win one on one.

This will help those who want to win,, win,, those that don’t read no further.

Thanks for letting me post on this wonderful blog.

I take inspiration wherever I can find it.  I was listening to Matt Damon in an interview on NPR this morning, talking about his role in the movie The Informant.  He was talking about how it is the hundreds of small details that go into preparing for a role that make the role believable.  It is the small things, like how a person stands, walks, speaks, facial expressions, and the list goes on and on.

In preparing for a role, you have to get into your head, learning the details and practicing for the performance, brainstorming about what will make this role believable and getting feedback from other actors or the director.  But – he says, once you are there, once you’ve prepared, you can’t be in your head.  When you are on the set and you are getting ready to give a performance, you must be “in the moment.”

What a wonderful analogy for trial preparation – you have to stay “in your head” while preparing a case for trial, and there are hundreds of details that go into preparing our case.  We have to research the legal issues, finding a way to exclude some evidence and to include other evidence.  There are the details of presenting opening and closing, cross and direct examinations.  The process of fine-tuning our case never ends, and although we may be ready for trial, we’re never fully prepared.

But when the trial begins, when we are standing inside the well, arguing motions to the judge or talking to the jury, we have to be in the moment.  All of the preparation that goes into the details is what makes it possible to be in the moment during trial, to act and react to the unexpected and the unpredictable nature of trial, without getting into our head and trying to figure things out while they are happening.

Next week we supposedly have four cases that are to be tried, in three different counties.  Obviously not going to happen, but I’m sure at least one or two will go.

Bill Luse, who came to work with us a few weeks ago, is set to try a criminal case in General Sessions in Georgetown, and also has one that is “first up” in Marion County.  I predict the Georgetown trial goes and the Marion one does not.  I have a criminal case on the roster in Marion County, but I also have a false arrest case (1983 action) on the roster in Horry County.

Although the defense lawyer is asking for a continuance, we are pushing to try the false arrest in Horry County – we are ready.  Should be an interesting week.

If there is one thing that makes the difference in the outcome of a trial it is preparation.  I’ve been told that you spend 5 hours out of court for every hour in court, and I’ve been told that you spend 20 hours out of court for every hour in court.  There is no hard and fast rule – you spend as much time as it takes, and if there is not enough time you use associates and an investigator to supplement.  In most cases that go to trial, we have to spend more than 20 hours out of court for each hour spent in trial.

Last week we  had a week-long trial in Conway, S.C. that ended Friday afternoon, and next Monday we begin another trial in Georgetown, S.C., barring unforeseen circumstances.  This week has been spent with some long hours digging out from being out of the office for an entire week, and at the same time gearing up for next week’s trial.  Much of the office management that needs doing will fall by the wayside until late next week.

We’ve been preparing for this trial for the last couple of months and it is ready to go – despite this it will be a long weekend, as there is always something left to do.  No matter how prepared you are, it is never enough and there is always more that can be done.

After working 15 hours today, I am still in a good mood and excited about the prospect of trying another case next week.  There are some times when we go a few months without a case going to trial – but I prefer the stress and the excitement of times like these.  I am alive when I am standing in the courtroom, talking to a jury.