Summary: You know how to dazzle the jury box with your closing argument. You know enough now to wing it, right, Icarus? Only if you want to crash and burn.
You’ve watched dozens of courtroom trials on the tube and on the big screen. You’ve watched The Practice, and committed most of it to memory, including the special features. You’ve been the star of moot court every year. You know to never ask a question in court to which you don’t know the answer. You know how to execute a crushing cross of your opponent’s star witness. You know how to dazzle the jury box with your closing argument. You know enough now to wing it, right, Icarus?
Only if you want to crash and burn.
What do you do when the person sitting at the other lawyer’s table has 20 years trial experience to your 20 minutes? Well, short of slumping in your chair and going into the legal dumper, you can get up to trial speed quickly by adopting some of the same tactics those judicial graybeards are using to kick your butt.
We’ve consulted with eight trial lawyers, some of whom were winning cases before your parents went on their first date. Listen up and find out their secrets. And after you’ve racked up a few big verdicts, the only thing you’ll have to figure out is how gracious you’re going to be in victory.
1| Become a Courthouse Groupie
Call the clerks of the court, ask when the top attorneys will be in trial, and go study them. Former Judge Steven Johnson says, “I would go watch the greats in trial, civil and criminal, and study how they did it. Then when those cases went up on appeal, I’d read the original trial transcripts and sit in the mezzanine of the court and listen to the oral arguments. I learned a lot from them.” Indeed. Johnson learned so well he became legendary as a successful St. Louis civil rights attorney and prosecutor before he went on the bench.
2| Get Perspective
If you plan to be a career prosecutor, first work as an intern for the public defender. “If you aim to be the next Clarence Darrow, start off as an FBI agent or assistant D.A.,” suggests Don Roberts, a criminal defense attorney. “When you work both sides of the table, you learn the other side’s strengths and weaknesses,” says Roberts, who began his 43-year career as a prosecutor in the U.S. Army in Europe and became a state prosecutor after returning home.
3| Pound Your Community Chest
Be a mensch who gives back more than a long billable hours worksheet. “Being part of your community also gives you a good reputation before the judges and jurors,” says Roberts, who has served as the national vice president of Big Brothers Big Sisters, and was legal counsel to the St. Louis Urban League for 20 years and the ACLU of Eastern Missouri for 25 years.
BEFORE THE TRIAL
4| Become a Boy (or Girl) Scout Again
Remember the Boy Scout motto? Heed it. “I may not be smarter than the other attorney or as quick on my feet, but I can out-prepare him and win,” says Joe Mosk, partner in Woodstock, Illinois, near Chicago. The more you know, the more confident you’ll appear.
5| Read, Read, Read
“Reread your petition and research the law, so you know what you have to prove,” says Ted Horowitz, a member of the College of American Trial Lawyers and a plaintiff’s attorney with 50 years’ experience in negligence actions.
6| Line Up Your Ducks
“Review and summarize all the depositions so you know exactly what everyone has to say,” says Horowitz. Dictate a summary of each page with the page number so you can refer to it during the trial.
7| Be a Know-It-All
“In an appellate case, know the record cold or it’s malpractice,” says Floyd Abrams, a senior partner at Cahill Gordon & Reindel in New York and author of Speaking Freely: Trials of the First Amendment. “An appellate lawyer should never put himself in a position where he must tell the court, ‘I wasn’t the trial lawyer and I don’t know the answer.'” You should be prepared to answer every question the judges ask you.
8| Go Back to School
“Don’t be too proud to get more court cred. I’ve hired doctors to teach me,” Horowitz says of his medical malpractice cases. The same amount of prep work goes into his product liability trials: “I read every article I can find on the product.”
9| Know Thy Enemy
“Step back and look at the case the way your opponent does. Then repeat the process before you walk into court,” advises a family law specialist in Rockville, Maryland, and Washington, D.C. If you know how the other side thinks, you can have an answer when the trial shifts.
10| Stay Informed
“When I have a trial out of town, I subscribe to the local dailies and listen to the radio stations,” says a litigation partner at Latham & Watkins, in Washington, D.C., and a former counsel to the U.S. Attorney’s Office. You have to understand where the jury is coming from and how you and your evidence will appear to them.
PREPPING CLIENT AND JURORS
11| Just the Facts, Man
“Get your witnesses in the habit of answering the question and only that question,” Horowitz says. A voluntary statement from the witness will create new territory for your opponent to exploit.
12| Start Strong, Finish Stronger
“Open with the strong witness,” adds Horowitz. Sandwich the slow stuff in the middle, and always end each day with the most impressive witness of all. You want to send the jurors home with a bang.
13| Teach Your Client Well
“Educate your client about what winning is,” says an attorney who spent the first 20 years of her career specializing in school desegregation and labor and employment litigation. Too often they think only a big jury verdict is winning. Sometimes, the client wins if you settle.
14| Lose the Bling
It isn’t hip for clients to flash bling in front of a judge or a working-class jury. “Cover tattoos with long sleeves,” Horowitz says, “and have your client lose his mustache, little goatee, or ponytail.”
“Borrowed clothes don’t fit well,” Horowitz says. “Leave the diamond stickpins, alligator cowboy boots, and other signature raiment to the marquee names known for it.” Adds Pulliam: “You are who you are. You are not who your clients are. Some lawyers think they’re special because their clients are important people. All clients are important if you chose to enter into a relationship that is honored and protected by the law.”
16| Community Cred
“When I try cases in any location other than my own [especially in small towns], I always go into the courtroom with the best or most credible lawyer in that community,” Roberts says. “The local counsel enhances my credibility in the beginning, from the voir dire.” This tactic helped Roberts, a big-city lawyer, win big in Lafayette, Louisiana, when the federal judge appointed him lead counsel for 30 defendants in a big drug case and he walked his client along with 27 other men.
DURING THE TRIAL
17| Swear Tactics
“If my client is African American and the jury pool comes from a racially polarized community,” says Roberts, “I ask during voir dire if they can take the oath to treat the defendant fairly, even if they admit to being a little prejudiced. I remind them of that commitment when they go to the jury room to deliberate.”
18| Gut Feelings
“During voir dire if some guy makes you so uncomfortable that you wouldn’t want to go have a beer with him, keep him off your jury panel,” Horowitz says. “You want only sympathetic jurors. Trust your instincts.”
19| Do You Hear What I Hear?
“Ask the jurors, Can everybody hear me?” Horowitz says. “Lots of times the jurors don’t even realize they’re uncomfortable because they can’t hear you or your client. As a result, they become irritated and unreceptive to your case.”
20| Make It a Chat Room
“Keep it conversational,” Horowitz says. “Know your case well enough so you don’t have to read your opening statement or closing argument.” The worst thing is to read questions to a witness. “But do keep a checklist of questions for each witness,” adds Horowitz, “and make certain you’ve asked them all before you dismiss him.”
Want to know the rest of the tips? Read them at LawCrossing.com!