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It's Not About You

Understanding Your Role During Trial

 

by Elliott Wilcox

 

After deliberating for six hours, the jury finally returns with their verdict. You stare at the verdict form as the foreman passes it to the bailiff, trying to catch a glimpse of their verdict as it passes hands, but to no avail.

 

The bailiff hands the verdict to the judge to review for legal sufficiency. You try to decipher the judge's body language, but he's a poker player, and you don't pick up any clues.

 

Satisfied that the verdict is a legal one, the judge passes the verdict to the clerk. He asks her to read it aloud. You try to read her body language, but she plays poker with the judge, so no luck there, either. Finally, she reads the verdict aloud...

 

As the judge thanks the jurors for their service, you sit stoically, silently reviewing any possible grounds for an appeal.

 

Outside the courtroom, you meet several jurors who have been waiting to speak with you. They ask for your business card. They promise to refer their friends to you. They tell you that you were definitely the better lawyer. They say you did a "fantastic job" and tell you that you tried a "great case." But, "you just didn't have the facts to support it."

 

Ouch.

 

What just happened? They told you that you tried a great case. They said that you were the better lawyer. They loved you. How could you have lost?

 

You must understand: It's not about you.

 

Many lawyers think that a verdict reflects directly upon them and their trial skills. Not so. The world's best lawyers have lost cases, and the world's worst lawyers have won cases. Of course a skilled lawyer increases the chances of success, just as an inexperienced lawyer raises the risk of failure, but it is not the lawyers who ultimately determine whether the case is won or lost.

 

Facts determine the outcome of cases.

 

Many lawyers forget this basic guideline of trial advocacy. They think the trial is about them. They try to impress the jury with how good they are or how skilled they are. But when a jury walks out of the courthouse talking about the attorney, rather than the client's story, that lawyer has done a disservice to his client.

 

It's not about you.

 

The main area in trial where lawyers run the risk of shifting the focus towards themselves and away from their clients is during direct examination. It's also the easiest to fix.

 

If the jurors are paying any attention to you at all during direct examination, you're probably not doing your most effective direct. The lawyer is not the star of direct examination. The witness is the star of the show during direct. Here are three quick tips to focus the spotlight back on the witness:

 

1. Ask shorter questions. The less time you spend talking, the more they'll hear from your witness. One effective technique for asking shorter questions is to use headlines during your direct. For a complete discussion of how to use headlines, see Beyond "What Happened Next?" - Secrets of a Powerful Direct Examination.

 

2. Actively listen to your witness's answer. "Never ask a question you don't know the answer to." Every lawyer has heard this advice. So what happens during trial? You ask a question, but, since you already know the answer, you ignore the witness's response and start formulating your next question. Juries are much smarter than the average lawyer gives them credit. Together, they see everything that happens in the courtroom. If they see that you don't care about your witness's answers, that can become a topic of discussion in the deliberation room. In short, they will focus upon you, rather than your client's story.

 

3. Position yourself out of the jurors' line of sight. If your judge will let you, move towards the end of the jury box, out of their line of sight. If you can't, at least position yourself on the far side of the lectern, so that they see as little of you as possible. If you also tell your witness to direct his answers towards the jury, you will force the jurors to focus their attention towards the witness, rather than you.

 

It's like you're the director of a movie. Nobody should walk out of a great movie talking about the director's skill ("How about that Spielberg? Wow, what a great choice of camera angles!"). They should be talking about the story ("Did you see how Indiana Jones barely escaped that rolling boulder?!?") Remember: it's not about you. Keep them focused on your client's story throughout the trial for maximum effect.


WANT TO USE THIS ARTICLE IN YOUR EZINE, WEBSITE, OR BAR ASSOCIATION PUBLICATION? You can, as long as you include the following blurb with it: Elliott Wilcox publishes Trial Tips Newsletter, a free weekly e-zine for trial lawyers that reveals simple, effective, and persuasive techniques to help you win more trials, guaranteed.  Sign up today for your free special report: “How to Become the Best Trial Lawyer in Your Courthouse – The Top Ten Tips for Trial Lawyers,” at www.TrialTheater.com

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