If you represent individuals or small businesses, business has probably slowed down in the last week or so, hasn’t it?  Part of it is the economy (remember: the economy is always cyclical — we’re gonna bounce back just fine!), but the main reason that your phone hasn’t been ringing as much as usual isn’t because you’ve done anything wrong, it’s just that your clients would rather spend their money on Christmas gifts rather than on legal services.

Don’t worry.  There are only two and a half more weeks left in the year, and you’ll soon have more business than you know what to do with.  But what should you do in the meantime?

You could join your clients at the mall, and do your part to keep the economy strong, or…

You could join other local lawyers for a few pints at the bar near the courthouse and exchange war stories, or…

You could stay in your office and invest two minutes per file to review every file in your filing cabinet!

“Why would I want to invest two minutes reviewing each file?  What could I possibly accomplish in that miniscule amount of time?”

Actually, it may not even take the full two minutes.  If you’re really knowledgeable about the essential elements of your cases, it may require less than a minute per file.  But with that small investment of time, you may save your case from a premature death, or set up a directed verdict for your client.

Let me explain.  Last year, I was waiting to learn when my case would be called up for trial.  The case before mine was a sexual molestation case.  I’d been told that the prosecution’s case would take about a day, and the defense case would probably take another half day.  Since they’d started the previous afternoon, I decided to poke my head into the courtroom and see how far they’d progressed, so that I could ask the judge when to expect my case would be called.

The prosecution had rested their case shortly before I arrived, so as I walked in, the attorneys were arguing the motion for Judgment of Acquittal (directed verdict).  In sexual molestation cases, these are usually pro forma motions, so you can imagine my surprise when I heard the judge announce, “The State has failed to allege an essential element in their Information (indictment), so the motion for judgment of acquittal is granted.”

Basically, here’s what happened.  In Florida, the crime of “Sexual Battery on a Child Less than 12 Years of Age” is treated differently depending on whether the defendant is older or younger than 18 years of age.  One of the essential elements that must be proven is whether the defendant is 18+ years of age.  Unfortunately, from what I gathered, the essential element of the defendant’s age was never charged and never proven during trial, so the judge had to dismiss the case.

To avoid the same problem with your cases, invest a few moments with each file and look through the language to assure that each and every essential element is listed in your charging document.   Are there special circumstances that must be specifically pled in your complaint?  If so, are they listed?

From the defense perspective, looking through each and every element may allow you prepare a J.O.A./directed verdict argument that you otherwise might have overlooked.

I know that this week’s advice sounds basic and obvious, but sometimes we need to be reminded about the basics of trial practice.  Invest a few minutes looking through each of your files — I guarantee that you’ll be happy you did.

Whenever an attorney asks me to help them with their opening statement, I usually ask them a series of questions to help assess the true value of their case:

Question #1: “What do you like about your case?”

It sounds like a silly question, but it’s actually quite important.  The more time you invest in your case, the more weaknesses you start seeing in your case.  That’s an invaluable asset for realistically evaluating your case, but unfortunately, it often leads to tunnel vision.  Some lawyers become so fixated on their case weaknesses that eventually, that’s all they see.  They magnify those weaknesses out of proportion until they start feeling overwhelmed.  Before long, these lawyers can actually start believing that their case is unwinnable.

Obviously, that’s not true.  All that’s happened is that they’ve lost sight of their case strengths.  If it ever happens to you, take a clue from the time when Apollo Creed took Rocky to the inner city gym in Rocky III. All you need to do is get back to basics and remember your inner strengths.  Answer these questions and you’ll remember why your case is winnable:

• “Why did you initially decide to take this case?”
  When the case first came into your office, what did you like about it?  Was it the client?  The opposing party?  The legal issues?  What was it that made you think, “This is a good case, and I can win it”?
• “How did you feel the first time you heard the case details?”
  Did you feel an emotional tug on your heartstrings?  Did you get angry?  What was your emotional response when you learned about the case?
• “What did you say to your spouse / best friend / trial partner the first time you told them about the case?”
  How did you sum up the case for them?  What facts did they fixate upon?  What grabbed their attention?  What did they like most?  How did they respond?

By getting back to basics, you’ll tap into the memories of what first attracted you to the case.  By the end of your opening statement, if the jurors feel like you did when you first learned about the case, the battle is half-won.

Question #2: “What do you hate about your case?”

Your case isn’t perfect.  If it was, you wouldn’t be writing an opening statement, because your opponent would have made an incredible offer and the case would already be settled.

Nope, your case isn’t perfect, so if you’re going to present a persuasive opening statement, you not only need to focus the jury’s attention on the strongest elements of your case, but you’ll also need to prepare them to handle the weaknesses in your case.  You can’t ignore your case weaknesses during opening statement, because if you don’t address them, your opponent will exaggerate them and make it look like you’re hiding things from the jury.  To be effective, you’ll need to create an all-encompassing opening statement that successfully incorporates your case weaknesses into a persuasive storyline.  So, what’s wrong with your case?  What are the weaknesses and the difficulties you’ll need to overcome?  Here are some of the problems you might experience:

Bad facts? Sometimes a single fact can be a case-killer.  What is the worst fact in your case?  What is the best fact in your opponent’s case?

Credibility issues? Do any of your witnesses have criminal histories?  Reputations for dishonesty?  Have they previously made statements that conflict with what they’re expected to say during trial?

Conflicts in the evidence? Do your witness statements agree with the physical evidence?  Do the witness’s statements agree with what other witnesses have said about the case?

Lack of proof? Are there any gaps in the evidence?  Do you have two forms of proof for every essential element, in case one form of proof falls apart or becomes inadmissible?

Legal hurdles? Are there any legal technicalities affecting the admissibility of your evidence?  Will the evidence be partially admissible?  Will you need to survive a Frye type hearing before your witness may testify?

Financial hurdles? Can you afford to hire experts?  The best ones?  (Or at least more persuasive than your opponent’s experts?)  Will financial issues force to use a recorded deposition rather than a live witness, or limit your use of demonstrative aids?

Witness difficulties? Is your witness incomprehensible?  Does he need an interpreter?  Is he a sanctimonious jerk?  Does he have any character traits that will prevent the jury from listening to his story?

Societal expectations? Just because a landlord is legally entitled to evict a family on Christmas Eve doesn’t mean the jury is going to approve of his actions.  There may not be any duty to be a Good Samaritan, but will your jury understand?  Even if your case is legally viable, does it fly in the face of societal expectations?  Will you need to overcome jurors’ negative emotional feelings?

Question #3: “What scares you the most about your case?”

What is the biggest problem with your case?  Where is your Achilles heel?  As you look through the list of things you hate about the case, is there a recurring theme?  Is one of the problems more insurmountable than the others?  If your opponents have even half a brain, they’re going to focus all of their attention on that single issue.  You’ll need to be prepared to address it during opening statement, so on a fresh sheet of paper, answer this question: “The thing that scares me the most about my case is…”

Question #4: “Why do you still deserve to win?”

If your case is like most cases heading to trial, you probably wrote down an extensive list of problems, and didn’t have any difficulty identifying the thing that scares you the most about your case.  Now you need to show the jury why you still deserve to win this case, despite all of these problems.  (If you can’t do that, you might want to start thinking about settling the case immediately.)  For each issue (focusing especially on the issue that scares you most about your case), write out an answer to this question: “Despite [negative fact], we still deserve to win because…”  It might take creative thinking and late nights, but develop a response for each potential issue before you advance to the next step of preparing your opening statement.