How many notes do you use during trial?

It’s a delicate balancing act.  Too few notes, and you run the risk of forgetting to address an important element of your case.  Too many notes, and you risk sounding scripted.

Here are a couple of quick tips for improving your use of notes during trial.

When Speaking Directly to the Jury

The importance of eye contact in the courtroom can’t be overstated.  The visible (sometimes barely visible) reactions of your jurors can help you decide whether or not to pursue an argument, whether to follow up on a line of questioning, and whether you need to return to a line of questioning to clear up potential misunderstandings.  You’ll need to pick up on the small non-verbal clues that they’re sending you, and you can’t do that if your head is buried in your notes.  Are they telling you to speed up?  To slow down?  Are they confused?  Bored?  Do they need part of the testimony repeated?  If you don’t look at them and read those clues, you’ll never know.

Make sure that you’re making eye contact with who you want to persuade.  Since you’re trying to persuade the jurors, rather than your legal pad, try to minimize how much time you spend looking at your notes.

When Speaking to a Witness

Jurors take their clues from you about how they should treat witnesses.  If you act like a witness is important, jurors are more likely to think the witness is important.  If you act as if the witness’s testimony doesn’t matter, they’re more likely to dismiss what he says, regardless of its actual importance.

When you look at your notes instead of making eye contact with the witness, it’s not only rude, it sends a message that you don’t care what he has to say and that his answers don’t matter.  To avoid sending the wrong message to your jury, look up from your notes and make eye contact with the witness before asking your question, and finish listening to his answer before you look down at your notes for your next question.  You can even hold eye contact with the witness for an additional moment after he finishes answering, to show that you’re paying close attention to what he’s saying and encourage the jury to pay more attention, too.  Just don’t stare at him, because it will make him feel uncomfortable and he’ll look uneasy on the stand.

Minimizing Your Notes

It’s okay to write out your arguments or questions word-for-word when you’re preparing for trial, so that you know what you want to accomplish.  But don’t make the mistake of bringing those scripts up to the lectern.  Those notes will become a mental crutch, and your eyes will never leave the page.

Anyone can read from a script.  With a well-scripted direct or cross-examination, you could pick someone off the street, send him into court with the script, and let him conduct the examination.  He’d do fine, right up until the point when one of the witness’s answers went off-script.  Then he’d be completely lost, and would have no idea what to do next.

Unlike trials on TV or in the movies, real trials don’t stick to a script.  Trial lawyers who depend on scripted examinations don’t always react very well when the unexpected happens.  That’s why, the fewer notes you bring to the lectern, the more freedom you enjoy.

When preparing the notes that you’ll bring to court, instead of writing out a word-for-word script, write down only what you need.  Rather than full sentences, use brief phrases or single words.  Besides, when you’re in the heat of trial, your eyes won’t easily focus on full sentences like “Mrs. Johnson, would you please tell us how you know the defendant?”  All you’ll really need is a quick reminder, like “RELATIONSHIP?” or “KNOWS DEFENDANT?” to prompt the correct question.

Make it Easy on the Eyes

Finally, if you want to minimize your time spent looking at the page and maximize your eye contact with the jury, it will help if your notes are easy to read.  To reduce how much time you need to look at the page, don’t rely on your chicken scratch handwriting.  Instead, type up your notes (preferably in 18pt or 24pt type) with a simple sans serif font.  You’ll be able to glance down at your notes for an instant, absorb the idea, and then immediately return to making eye contact with your jurors or your witness.  With a little practice and preparation, the jurors won’t even notice your use of notes, they’ll just focus on the strength of your case!

Every day, lawyers blatantly lie to potential jurors during jury selection.

In courtrooms across the country, they repeat the exact same lie.  You’ve probably heard this lie repeated in open court, and there’s a good chance you’ve said it yourself.  So what is this oft-repeated lie?

“Ladies and gentlemen, we’re looking for a fair and impartial jury.”

Bull.  No lawyer in his right mind wants a “fair and impartial” jury.  You want the most biased jurors possible — just so long as that bias goes in your favor.  You know that if you can select a jury that’s receptive to your client’s case, the battle is half-over.  That’s why jury selection can be one of the most important elements of your entire trial.

The two important goals of jury selection are picking jurors who will favor your client, and eliminating the jurors who will favor your opponent.  But how do you identify those two classes of jurors?

As you’ve heard me say before, it’s essential to get the jury panel talking if you want to discover what attitudes, beliefs, and life experiences they’ll bring into the jury deliberation room.

But sometimes, jurors talk too much.

For example, let’s say you’re the prosecutor in a DUI case and one of the potential jurors says, “I hate what you’re trying to do here today, and I’ll never agree with you.  I LOVE to drink and drive.  There’s nothing in the Constitution that restricts my right to travel between the states, is there?  No, of course not!  This ain’t communist Russia!  I can drive wherever I want to drive, right?  The Declaration of Independence says that I’ve got the inalienable right to life, liberty, and the pursuit of happiness, right?  Well, drinking makes me happy, so that’s a protected right.  I don’t care what so called ‘evidence’ you put on today, there’s no way I would ever vote ‘Guilty’ in this case.”

Even if this is your very first time selecting a jury and you have absolutely no idea what you’re supposed to do, you know that you need to strike this guy from the jury, right?  Now that you’ve successfully identified him as a definite strike, does that mean you should stop talking to him?  Definitely not!

But do you know why you should keep talking with him?

It’s not because you’re trying to learn more about him so you can re-evaluate whether or not to keep him on the jury.  This guy is so bad for your case that you’d probably be willing to exercise all of your peremptory strikes just to get rid of him.

The reason you want to keep him talking is so you can turn him into a “sounding board” and learn who else feels the same way that he does.

Here’s how you’ll use this opinionated juror to your benefit.  Start by asking your strongly opinionated friend another question that is designed to keep him talking.  It doesn’t need to be a mind bender of a question, just something open-ended that lets him continue expounding on his previous thoughts.  For example:

• “Why do you feel that way?”
• “How long have you felt that way?”
• “How/where did you develop those beliefs?”

If you don’t know what to ask, just use simplest follow-up question in the world: “Why?”  It doesn’t matter what question you ask, just so long as it’s open-ended and gets him talking.  (The best words to use when asking open-ended questions are “Why?”  “How?”  “Explain…” or “Tell us…”)

Now here’s the secret to spotting favorable jurors.  When you ask your sounding board the follow-up question, you’re not really listening to him or looking at him.  After all, you don’t really care what he says — he’s got less chance of sitting on your jury than O.J.’s chances of asking Det. Mark Fuhrman to be a character witness at the sentencing hearing.  [Yeah, I had to go there] 

If you’re not focusing your attention on the opinionated juror, where are you looking?

When you ask your follow-up question, you’re not looking at the talkative juror…

You’re looking for the guy in the back row who’s nodding his head in agreement

What you’re going to be looking at is how the other jurors respond to him.  Some of your potential jurors might agree with what he’s saying, and others might disagree.  As he continues talking, some of these jurors will express their feelings through their body language.  Your job is to pick up on these non-verbal clues so you can identify which camp the jurors belongs to.

When you ask the follow up question, expand your visual focus.  Don’t lock in on the opinionated juror.  Look at the entire jury panel, keeping your antennae raised for any indicators of agreement or disagreement.  Here are some of the clues you’ll want to look for:

• Nodding head
• Shaking head
• Leaning towards (or away from) the talker
• Looking towards (or away from) the talker
• Rolling eyes
• Raising eyebrows
• Furrowing brows
• Making eye contact with you or with opposing counsel
• Sighing
• Looking at watch or at wall clock
• Crossing or folding arms

Once you identify the other potential jurors who agree (or disagree) with your opinionated juror, you have two options.  If you think the other juror agrees, get him to voice his opinions.  If he speaks long enough, he might say something that lets you strike him for cause, too.  The two easiest follow-up questions you can ask are, “[NAME], what do you think about what he said said?” or “[NAME], how do you feel about what he said?”  Either question forces him to give more than a “Yes/No” response, improving your chances that he’ll say something worth noting.

If you think you’ve found a juror who will favor your client’s case, you’ll want to keep him on your panel.  In that situation, you might not want to ask him anything, and simply make a positive note on your legal pad and hope your opponent doesn’t pick up on the body language.  (Keep in mind, however, that it’s always risky to expect your opponent to overlook anything.)

Many trial lawyers think that strongly opinionated jurors, especially those who vocally disagree with you, are problematic.  Nothing could be further from the truth.  These opinionated jurors can serve as a sounding board to help you identify favorable jurors, and they can also help you ferret out unfavorable jurors.  Keep ‘em talking, and your jury selection will dramatically improve!

 

 The Secret to Spotting Favorable Jurors [8:53m]: Play Now | Play in Popup | Download (2231)

With language, it’s not just the words you use, but the order they’re placed in.  By changing the syntax, you can radically alter the meaning of a phrase.  For example, look at these two phrases:

#1: You are not as pretty as she is.

#2: She is not as pretty as you are.

Same words, different meanings.  Both phrases contain exactly the same words, but only one gets you slapped across the face.  Obviously, syntax can be powerful, so in this tip, you’ll learn how to harness its power to improve your cross-examinations.

By changing the structure of your questions, you’ll shift the jury’s focus towards the most important point that you need them to remember.  For example, let’s say you’re cross-examining a witness in a case where a child gains access to a handgun and injures another child.  One of the important facts in your case is that the witness kept a loaded handgun in the bottom drawer of his nightstand.

Depending on which fact you think matters most, you’ll want to rearrange your question to emphasize that fact.  What you’re going to do is put your most important point at the end of the statement.  Here are a two different ways to ask the same question:

1. Emphasizing that the gun was located in the bottom drawer, which would be easier for the child to access:

“In your nightstand, you kept a loaded gun in the bottom drawer?”

2. Emphasizing that he kept the gun loaded:

“Inside the bottom drawer of your nightstand, you kept a loaded gun?”

Rearranging your questions to place the most important fact at the end will give you two benefits.  First, it gives the witness less time to think.  That forces him to either respond immediately (possibly blundering his response) or squirm silently for a moment while formulating his response.  Sure, it’s only an extra moment or two, but when a witness gets hit with a tough question during cross-examination and then pauses to form his response, that time can feel like “dead air” on the radio.  A few extra moments like that during critical moments in your cross-examination can leave the jurors with the impression that this witness isn’t someone they should fully trust.

The second benefit of rearranging your question is that you’ll place greater emphasis on the important facts you want the jury to remember.  When we get to the focus of the sentence, we tend to stop listening.  Put your most important point at the end of your sentence, and then stop.

How many times did you testify during your last trial?

According to the Federal Rules of Evidence definition of “testimony”, your official answer should be zero.  Unless something bizarre and unexpected arose, you probably didn’t find yourself raising your right hand, swearing or affirming to tell the truth, sitting in the witness box, and then telling “the truth, the whole truth, and nothing but the truth.”

But that doesn’t mean you didn’t testify.  In fact, you probably testified more than anyone else in your case, because each time you arose from your seat and spoke to the jury, you were “testifying” and giving the jurors a chance to assess your credibility and your belief in the case.

So, with that new definition in mind, how many times did you testify during your last trial?

If you’re like many lawyers, your answer is probably “twice”: Once during opening statement, and again during closing argument.

But think again.  When you stood before the potential jurors during jury selection, you were testifying there, too.  In fact, that was the first time they got a chance to see you and evaluate how you felt about the case, so it might have been one of the most important times you “testified.”  So, the correct answer is 3 times, right?

Not quite.  If you did a good job of trying your case, the correct answer should be that you testified four times during your last trial.  The fourth time that you testified, and the time that most lawyers forget about, is during cross-examination.  (Why isn’t the correct answer five times, once for each portion of the trial?  Because hopefully the jury was so attuned to what your witness said during direct examination that they didn’t even notice you were there.)

The great thing about cross-examination is that it allows you to testify during your opponent’s case.  Although many lawyers think that the person in the witness stand is the one testifying during cross-examination, that’s not true.  If you’re doing it correctly, it should be you “testifying” to each factual statement, while the witness merely nods his head in agreement with what you’ve said.

The reason you get to testify during cross-examination is because you’re allowed to ask leading questions.  The leading question is the only tool that the Rules of Evidence provide you for controlling the witness and discovering the truth.

Unfortunately, many of us don’t wield that tool as effectively as we could.

If you were prepping an important witness for trial, you’d help them to ensure they testified powerfully and persuasively, right?  Well, it’s just as important to maximize the effectiveness of your testimony during cross-examination.  One of the easiest ways to improve your testimony during cross is to eliminate any surplusage in your questions.  These irrelevant words and phrases can dilute the power of your cross-examinations, create confusion, or give the witness an opportunity to wiggle out from under your control.  If you’ll make an effort to reduce their use, your testimony will become more persuasive.  Here are three examples of surplusage, and tips for eliminating them from your testimony:

Surplusage #1: Adverbs
Adverbs dilute the power of your cross because they provide the witness opportunities to disagree with your questions.  For example, if you tell the witness, “You walked south on Elm St., away from the crash scene,” there’s not much room for disagreement.  He either did, or he didn’t.  But, if you add an adverb to the statement (“You quickly walked south on Elm St., away from the crash scene,”) the witness gets a chance to fight you, because now the question asks for a subjective interpretation, rather than asking for strictly objective information.

Read through your list of cross-examination questions and look for any words ending in “-ly.” When you find them, strike them from the page.  By eliminating these quibble words, you’ll make it more difficult for the witness to disagree with you.

Surplusage #2: Perceptions

Many lawyers will ask the witness what they perceived, rather than what happened.  Here’s an example:

“You saw the tall man pull out a handgun?”
“You saw him point the gun at the shorter man?”
“You didn’t see anything in the shorter man’s hands?”
“You saw him pull the trigger?”
“You heard a single gunshot?”
“You saw the shorter man fall to the ground?”

The most important part of those questions isn’t what this witness saw, it’s what the tall man did. Strengthen the imagery in your testimony by focusing on the events, rather than the witness’s perception of the events.  Instead of asking how the witness observed the event (“You saw Johnny walk into the bedroom?”), remove the “you saw” elements from your questions and go directly to the facts: “Johnny walked into the bedroom.”

Notice how much removing the surplusage makes it easier to follow the story:

“The tall man pulled out a handgun?”
“He pointed the gun at the shorter man?”
“The shorter man didn’t have anything in his hands?”
“He pulled the trigger?”
“A single gunshot rang out?”
“The shorter man fell to the ground?”

Surplusage #3: Taglines
Taglines can be an effective tool for helping you ask leading questions:

“You own 30,000,000 shares of SuperMegaCompany stock, correct?”
“Your best friend is the president of that company, isn’t that true?”
“He told you to sell all of your shares on October 2nd, right?”
“You sold every share you owned, didn’t you?”
“The company declared bankruptcy three days later, didn’t they?”

Used occasionally, taglines can add dramatic impact to your most important questions.  However, used to excess, these taglines can distract from your cross-examination, especially if you repeat the same tagline over and over.  (“Correct?”   “Correct?”  “Correct?”  You’ll sound like a broken recording!)  By eliminating taglines, you can streamline your cross-examination into a series of back-to-back factual statements that tell a persuasive story, punctuated only by the witness’s “Yes” response to each statement:

“You own 30,000,000 shares of SuperMegaCompany stock?”
“Your best friend is the president of that company?”
“He told you to sell all of your shares on October 2nd?”
“You sold every share you owned.”
“The company declared bankruptcy three days later.”

If you practice before one of those judges who refuses to believe that voice inflection alone is insufficient to turn a statement into a question, you may feel forced to add taglines to all of your questions.  However, if you find yourself in that predicament, try using taglines on the first few questions, and then dropping them.  Having set the tone with your first few questions, the witness will be trained to say “Yes” to your statements, and no one will notice that you’ve dropped the taglines:

“You own 30,000,000 shares of SuperMegaCompany stock, correct?”
“Your best friend is the president of that company, isn’t that true?”
“He told you to sell all of your shares on October 2nd, right?”
“You sold every share you owned.”
“The company declared bankruptcy three days later.”

You probably can’t eliminate all surplusage from your questions (nor should you try), but once you’re aware of how it detracts from the strength of your testimony, you’ll want to make efforts to reduce it.  Invest the effort to properly prep yourself for trial, and your “testimony” may make the difference between winning or losing the case!

How do you structure your closing arguments?  If you’re like many attorneys, you probably take advantage of primacy to start strong and tell the jurors how strong your case is and show them why you deserve to win.  Normally, that’s exactly how I coach law students and trial lawyers to structure their closings.  “Start strong,” I’ll say, “disclose your weaknesses in the middle, and then finish strong.”

But…  That’s not necessarily the “best” way to outline your closing.

Trial advocacy is art.  Unlike mathematics or science, where only one correct answer exists, art doesn’t necessarily have a “best” way of doing something.  Working from the same palette, Cézanne, Picasso and Dali each created radically different depictions of the human form, but none of their masterpieces can objectively be called “the best.”

The same is true of closing arguments.  There are many different approaches, but we can’t objectively say one of them is the “best” way of structuring an argument.

So, with that in mind, let me offer another approach for structuring your closing argument.

Rather than starting with your strongest argument, then saying “But, here’s the weakness with our case,” you might want to consider starting with your case weakness before discussing the strongest part of your case.  That’s because the word “but” indicates, “Put aside what I just said, and pay attention to what I’m about to say.”

For example, let’s pretend that during your semi-annual review, your boss tells you, “Overall, your job performance is excellent, but… your communication skills need improvement.”

If you’re like most people, you probably fixated on the negative portion of the evaluation, even though the overall evaluation said you were doing an excellent job.  It’s just human nature – when we hear the word “but,” we tune out the previous statement and focus on what follows.  Don’t believe me?  Just imagine the person you love most in the world telling you, “I love you more than anything else in the world.  You’re the most wonderful person I’ve ever met.  I can’t imagine life without you.  But…”

All it takes is one word and you’ve completely forgotten about how wonderful you are, haven’t you?

With that in mind, you may want to reconsider the structure of your closing argument.  Many cases have been won with arguments that basically said, “We have a strong case that deserves to win…  BUT, there are a few weakness in this case that you should know about.”  If you’re afraid this structure may increase the risk of jurors placing greater focus on your case weaknesses, you may want to re-write your argument like this: “There are a few weaknesses in this case that you should know about…  BUT, we have a strong case that deserves to win.”

You probably won’t want to try this format during opening statements, because at that point the jurors don’t know anything about your case yet, and you’ll want to fully maximize the power of Primacy by establishing a strong, positive image in your jurors’ minds.  However, by the time you reach closing arguments, the jurors have heard all of the testimony and seen all of the exhibits in your case, so Primacy doesn’t play as big a role.

By the time you reach closings, the only thing left is argument.  By discussing your weaknesses first before talking about the strength of your case, you may enhance your credibility with the jury and help them become more receptive to your arguments.

The important lesson is that there’s no “best” way to craft your closing argument.  Don’t get locked into thinking there’s only one way to structure your arguments or that there’s a “magic bullet” that will work in every trial.  Each trial is different, each client is different, and each jury is different.  As the trial lawyer, it’s your job to discover which structure you should use and which arguments you should make to create your “masterpiece” closing.  Good luck!