Trial for the Terrified

September 11, 2019

Jury.jpgBy Dan Portnov

I’ll make a confession: I am not a trial attorney. If you need a Johnny Cochran or Benjamin Brafman-type courtroom wizard, I’m not your guy and I never will be.

Still… I love trial. I’ve done several and had my moments of glory. It is a rush and sometimes I will completely lose myself in the moment. Sara, on the other hand, is much more seasoned and in command of the courtroom. (Check out what she has to say about trials here, here and here). I’ve had the good fortune to second-chair a few trials with her (and other great attorneys) and I learn something new each time.

Now I hope to share with you a few things I’ve picked up along the way: tips for the trial enthusiast. (Or for the junior lawyer or law student who hopes to get in the courtroom one day.)

Get the basics down.

If you are still in law school, take courses like Evidence, Criminal Procedure, Trial Practice, Advanced Trial Practice, and join your mock trial team. You will learn all the rules of evidence and courtroom procedure, and you will be drilled in it.

Once out of law school, take trial-oriented continuing legal education (CLE) classes, often taught by the best trial attorneys and judges in your area. Take on pro bono cases that will allow you to go to trial, or at least do hearings.

And, if you have the time, coach a high school or college mock trial team. You will be reminded of the basic rules of evidence and courtroom decorum. You will also be surprised how much you know when you are schooling a 16-year-old on all of the hearsay exceptions.

Speaking of courtroom decorum…

Stand up when you speak. “Your honor” instead of “Judge,” “Sir” or “Ma’am.” Find out how to pronounce the judge’s name if it’s a difficult one; practice it a hundred times until you get it right. Always ask before you move out from behind your table or the lectern from which you are asking questions.  Heck, get used to asking for permission to do anything.

Jury selection can be fun!

When I’m at counsel table during jury selection, I do one of two things. If the prospective jurors are in the box, I have post-its on a manila folder arranged to represent each juror. I write down answers to the juror questionnaire or to the judge on each post-it as that individual speaks. Then, when it’s time to make strikes I look at each post-it, filled with bullets, to make my recommendations.

If we get a list of the venire (panel of potential jurors) ahead of time, I am all over Google and social media trying to learn more about each juror. You’d be surprised how much you can find out from LinkedIn, Facebook, real estate records, etc. that might help you keep or strike a juror. Of course, check the local rules to make sure there are no restrictions on doing this type of research and be sure to follow the rules of ethics with respect to avoiding “communicating” with a potential juror through a friend request, follow or direct message.

There’s never enough time!

Trial should feel like hell. After eight or so hours in the courtroom, you go back to your office (or home) to prepare for the next day. That means writing scripts, preparing for arguments on legal issues that might come up, prepping your witnesses, compiling jury instructions, arguing with opposing counsel because the judge asked you to resolve your differences before the next day, and so on.

Fortunately, the adrenaline, caffeine, and the nobility of your cause will keep you going. Still, you should look and feel stressed out all through trial. If you are getting more than 4 hours of quality sleep each night, you’re probably doing it wrong and will lose.

Most witnesses aren’t that hostile.

During my first federal criminal trial (we represented a pimp – long story), my first witness was a police detective. I was supposed to cross examine him. Expecting him to be wily, evasive and potentially lie (misremember), I brought up every piece of paper with his name on it. I was ready to refresh recollection, impeach, introduce exhibits.

The detective turned out to be a regular guy who remembered everything and didn’t fight me on much. After ten minutes, I finally had to introduce an exhibit. But it was buried in my stack of papers and, as I searched for it, I dropped the stack right in front of the jury box. (Juror number 7 helped me collect my stuff.)

All that is to say that most opposing witnesses don’t require a heated cross exam for it to be effective. Be prepared to impeach on the important points, but realize that arguing/impeaching/refreshing every little thing makes you look like a fool and wastes everyone’s time.

Finally, figure out your style and get comfortable.

I’d like to think I have a sense of humor. But in court you wouldn’t know it. Any jokes I’ve ever cracked in court have fallen flat.

I realized that I was never going to be “charming” or “charismatic” – but that doesn’t mean I can’t be effective. I just have to prepare everything and practice. And then occasionally I go off script, but only when I know the script and subject matter cold. I may be boring in court, but I am earnest. And that can go a long way with the jury.

In sum, trial is not just for the trial attorneys. After all, there are only so many naturals. The rest of us have start somewhere and the

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