Moments before you’re about to begin a one-day jury trial, you suddenly realize that you don’t have anything to write with. Fortunately for you, I’ve got some spare pens that I’m happy to give you. You have two choices:

 

Choice #1: My gold-plated Mont Blanc Bohème Doué, or

Choice #2: Two of my 99¢ Pilot P-500 pens (one red, one blue)

Whichever one you choose is yours to keep, no strings attached. Which would you prefer?

“Wait a second,” you’re probably thinking, “if it’s mine to keep, I’d obviously prefer to take the expensive pen. But something tells me this is a trick… If I pick the expensive pen, the jurors will probably think that I’m pretentious or that my client is loaded, right? I guess I’d better pick the cheap pens.”

Before you make your final choice, let me assure you that the jurors will never see what you’re writing with, so don’t let that affect your decision. Do you still want the cheap pens?

“Since you put it that way,” you say, “there really isn’t any choice, is there? I’ll take the gold-plated pen.”

You sure?

“Yes.”

Is that your final answer?

“Yes, I definitely want that Mont Blanc.”

What a terrible decision! You’ve just made a tragic mistake! Your case is doomed!!!

“But I thought you said this wasn’t a trick! If the jurors can’t see my pen, shouldn’t I pick the more expensive pen?!?”

Not in this case. Mont Blanc writing instruments (notice I didn’t say “pen” — anything more than fifty bucks gets to be called a “writing instrument”) are great for autographs and signing settlement agreements, but they’re not nearly as effective for winning trials as those two 99¢ pens.

Here’s why two cheap pens are better than one expensive “writing instrument.” Using two different colored pens during trial dramatically improves the quality of your notes. For example, let’s examine the notes you might write down about a potential juror during jury selection in a Driving Under the Influence case:

Your notes include actual quotations from the potential juror, as well random comments or feelings about his responses. Both positive and negative information about the potential juror is interspersed throughout the notes. Fairly typical, right?

With the judge staring down at you from the bench, it can often feel like you’re being forced to make a split-second decision whether or not to keep a potential juror on your panel. When it comes time to make your final decision whether or not to keep him, you’ll refer back to these notes before asking yourself, “Is he a good juror for us?” Glancing at these notes in the heat of the moment, you’ll probably only see a jumble of hastily written notes scribbled across the page. If you’re not careful, you could overlook important information because it gets lost in the mess on the page.

That’s why you should use two pens during trial. Typically, I use a black or blue pen to write down any positive information, and a red pen to write down any negative information. By using two different colored pens to capture your notes, you’ll make it easy to immediately locate positive or negative information. Let’s pretend for a moment that you’re the criminal defense attorney in the D.U.I. case. Check out this example below to see how quickly and easily you can identify the negative aspects of this potential juror’s answers:

[I bolded the red portions in case you decide to print out this post]

Notice how much easier it is to identify the negative parts? At a glance, you see that this juror probably won’t be a good choice for your case. If it looks like someone bled all over the page, you probably don’t want that juror! You can use a similar system for taking notes during your opponent’s opening statement, the examination of witnesses, etc.

Don’t go crazy trying to use multi-colored pens (“Let’s see, purple related to causation issues, green was for damages, orange was for identification, yellow was for venue…”) Keep things simple and limit yourself to two different colors. When you start using two pens during trial, you’ll guarantee that your case strengths and weaknesses leap off the page.

Share This

As you get closer to your trial date, your days and nights will be consumed by trial preparation. An important part of that work is helping your witnesses get ready to testify. Of course, you know that you can’t tell witnesses what to say (not if you want to continue practicing law), but you can help them prepare how they will say it. Here are some tips to improve your pre-trial witness preparation:

Don’t give advice before you see how the witness performs. If you went to the doctor and the first thing he said was, “Ok, I’m going to give you a prescription for Ritalin that you’ll need to take 3 times a day,” you’d run out of the office. What type of a doctor would make a diagnosis without reviewing your symptoms? What type of doctor would write a prescription without hearing what was wrong?

Don’t make the same mistake with your witness. Don’t prescribe a remedy until you’ve gotten the chance to see the witness perform on the witness stand. Put them in the witness stand and start firing away with your questions. Ask short questions, long questions, open-ended questions, leading questions, and accusatory questions, then watch how the witness performs. Only then should you make any recommendations.

As you watch the witness testify, here are some things you can evaluate:

How does the witness sound? Does he need to speak up? Or is he so loud that the jury will be blown back in their seats? Is he making “popping” noises in the microphone? Speaking too quickly? Too slowly? Is he using incomprehensible buzzwords or jargon to explain what happened? Saying “uh” or “um” too often? Does he articulate his words, or does he mumble? Does he fade away at the end of sentences?

How does the witness look? Does he slouch in his seat? Sit ramrod straight? Lean forward? Drape himself over the witness chair like a teenager on the phone? Is he too comfortable? Too stressed? Is he looking at the jurors? Playing with his hair? Putting his hands in front of his face? Crossing his arms? Speaking animatedly with his hands? Scowling? Fake smiling? Grimacing? Avoiding eye contact? Making too much (“Stop staring at me, creep!”) eye contact? Talking to his shirt or towards the floor? When he responds to questions, does he look at the questioner, or does he speak directly to the jury? Does he look at all of the jurors, or just one of them? (Oh crap! Is he actually flirting with one of the jurors?!?) Is he dressed too warmly, so that he’s sweating? Gross. (Also, it makes him look like he got caught doing something dishonest.)

How does the witness act? Does he become confrontational when you switch to cross-examination? Does he change his body language based on the questioning style? Does he get defensive when you switch to certain topic areas? Does he change the tempo of his answers (sometimes pausing for an extended period before answering, and other times answering immediately) based on topic areas or questioning styles? Does he interrupt before the question is completed? Does he try to look at you (“Help me, please!”) during cross-examination?

After you’ve evaluated the witness’s performance, it’s time to make recommendations for improvement. Your recommendations should follow these guidelines:

Limit your initial comments to a few simple improvements. When I coach trial lawyers about improving their courtroom skills, I try to make only one or two specific comments. Giving someone a 30 point plan of action for improvement has the same effect as not giving them any guidance for improvement. 30 points are too many — they’ll feel that they can’t do anything right, and will just give up. But if you give them a few, limited areas for improvement, they can do that. And then next time, you can give them 2 or 3 more things to improve upon.

Be honest. Don’t say something nice just to give false praise. Only imbeciles are unable to recognize false praise. Everyone else hates it. And you’ll offend them. If you can, it’s nice to tell them something positive about their performance, but don’t lie or B.S. ‘em. If the witness is sincerely interested in improving their performance, they’ll appreciate your candor.

Preparing witnesses to testify is one of the most important pre-trial functions a trial lawyer can perform. Get the most out of the limited time you’ll be able to spend with each witness. Apply these guidelines to your pre-trial preparations and you’ll see dramatic improvements in your witnesses’ courtroom presentations.

Share This

If you frequently travel for business, you know the terrible feeling of arriving at your destination only to realize that you’ve left your toothbrush or razor at home. That’s why people who regularly travel on little (or no) notice understand the importance of keeping a “travel kit” packed and ready to go. In case you’ve never heard of a travel kit before, it’s a bag packed with all of the essential items you would need for a short business trip.

Your travel kit is probably similar to mine:

• Shampoo
• Deodorant
• Toothpaste
• Razor
• Shaving cream
• Fake ID’s, passports and/or visas issued under at least (3) different aliases
• $50,000 cash (typically in U.S. or Canadian dollars, Japanese yen, European euros, Russian rubles, and Swiss francs)
• (2) “clean” pre-paid cell phones (and chargers)
• Safe deposit box keys
• Access codes to safe houses
• Swiss bank account access codes
• Laminated list of non-extradition countries
• Hair dye and fake moustache
• (2) pair black socks
• Q-Tips
• Toothbrush
• Etc.

Having a well-stocked travel kit like this can be a real lifesaver. It not only simplifies your packing, but it also sets your mind at ease because you know that you can head out the door without worrying that you’ve forgotten an essential item.

Far more important than your travel kit, however, is your “trial kit.” A trial kit contains all the essential items you’ll need during trial. The items in your trial kit will vary depending on what types of cases you normally try, but here are a few recommendations to help get you started:

• Measuring tape. Distances are often an essential element of a case. (“How close were the cars?” “How far away was the witness?” “How tall was the attacker?”) If you have a measuring tape with you, you can put those distances “on the record.”
• Stopwatch. Another common issue is time. (“You said the light just turned red. How much time passed before the defendant ran the light and darted into the intersection?”) Using a stopwatch can prevent witnesses from haphazardly guessing at the passage of time and lock them into definite time frames.
• Magic markers. Almost every courtroom has an easel and a flip chart, but surprisingly few of them actually have magic markers. For some reason, they just seem to vanish. Keeping a supply of magic markers in multiple colors (at a minimum: red, black, and blue) will let you summarize points for the jury or allow witnesses to clarify something by drawing or diagramming it.
• Highlighters. Want to draw a witness’s attention to a specific section of a transcript or written statement? Highlighting the relevant section makes it much easier to limit their focus or show them which portion they should read aloud.
• A/V cords and power cords. The world’s best computer simulation is useless if you can’t show it to the jurors. Make sure you’ve got the right cables to connect your computer to the court’s projection system and an extension cord in case the power outlets are too far from your equipment.
• Law books. It’s almost a guarantee: During the trial, someone will have a question about jury instructions, rules of procedure, or an evidentiary issue. Luckily, you’ll have the answers handy because you’ll pack copies of the rules of court and the evidence code in your trial kit.
• Sustenance. Trials can take a lot out of you. Pack a few bottles of water to keep your throat clear and some energy bars to maintain your energy throughout the day.
• Cash. (No, it’s not for bribing jurors or judges!) Keep $10 worth of quarters in your trial kit. You’ll be surprised at how often you need it to feed a parking meter, let someone use a pay phone, or to buy your “express lunch” of Diet Dr Pepper and pretzels at the vending machines.
• Aspirin. If you have it, you won’t need it. But if you don’t have it, you’ll wish you did!
• Tissues. Do your cases deal with emotional issues? Be prepared to let witnesses wipe away their tears on something besides their shirt sleeves.
• Pointers. Normally, when you ask witnesses to identify a specific section of a map or diagram, they will reach across the exhibit and point with their fingers or with a pen, completely blocking the jury’s view of the exhibit. To avoid this problem, keep a laser pointer and an expandable pointer in your kit.

Obviously, this list only scratches the surface of what you’ll actually bring to trial, but at least it will get you thinking about the essential items you should pack. Don’t make the mistake of waiting until the eve of trial to start packing your trial kit. The closer you get to trial, the more cluttered your mind will become with last-minute issues and problems. Just like packing for a trip, if you wait until the night before, you’ll probably forget an essential item. Instead, prepare your trial kit now, while your mind is calm, and you can be guaranteed that you’ll have everything you need when you get to court.

Share This