Imagine that you’re being audited by the Internal Revenue Service and need to hire an accountant. Since this is such an important decision, you’re going to do a diligent search for the most qualified accountant in your area. You’ll probably pick up the Yellow Pages, look for the accountant with the biggest ad, preferably a full-color advertisement on the back of the book, and immediately schedule your initial consultation. (What? That’s not how you hire someone to perform a critical professional service?!? You’d base your decision on word-of-mouth reputation and the recommendations of your colleagues? Huh… That’s weird.) Walking into his office, you drop two boxes of documents and receipts onto his desk and say, “I’m trusting you with the financial security of my family. I need you to make sure that this audit goes smoothly and keep me out of trouble. Can you do it?”

If he paused for a moment before telling you, “No problem… I think I’m up to the task,” how would you react? Would you leave the boxes on his desk and say, “Thanks! Let me know how the audit goes?” Or would you grab the boxes and run?

Now imagine for a moment that you’re going to the hospital for a minor surgical operation. Moments before they’re about to begin the operation, you hear the doctor tell the nurse, “I’m pretty sure I can do this!”

How would you react? Would you relax, breath deeply, and wait for the surgery to begin? “After all,” you’d think, “it’s only minor surgery — what’s the worst that could happen?”

Probably not, right? Chances are you’d probably jump up from the operating table, rip the IV from your arm, and bolt out of the room.

You’d never accept equivocal answers from the people entrusted with safeguarding your property or your life. Even though it’s only money and only minor surgery, you’d immediately demand a different accountant and a different doctor, because your life is too important to risk on someone who’s “pretty sure” he can do the job.

The same thing is true in the courtroom.

During trial, jurors will be entrusted with safeguarding your client’s money or liberty. To do that, they’ll need to be fair, and they’ll need to follow the law. Yet how many times have you had a juror tell you, “I think I can follow the law?” or “I’m pretty sure I can be fair?”

Usually, these types of responses are just a juror’s honest (albeit conversationally casual) reaction to your questions. It doesn’t necesarily mean the juror won’t be fair, but it’s no guarantee that he will be fair, either. Under the law, these types of answers are considered “equivocal,” which means that either you or your opponent may now be able to strike him for cause by showing the judge that the juror’s equivocal answer raises a reasonable doubt about his ability to be fair or to follow the law.

Getting rid of a juror for cause allows you to use your peremptory strike against another witness, so in reality, a cause challenge is actually worth two strikes. That’s why equivocal answers can be dangerous. A single equivocal answer may give your opponent all the ammunition she needs to strike one of your favorable jurors for cause, saving her precious peremptory strikes to get rid of additional jurors who may be persuaded by your case.

What do you do when a potentially favorable juror gives you an equivocal answer?

Many lawyers try to shove an unequivocal answer down the juror’s throat by “rehabilitating” the jurors. (I’ve been guilty of this in the past). Here’s a typical scenario:

Lawyer: Ms. Jones, can you be fair in this case?

Juror: Um, I think I can.

Lawyer: Ms. Jones, in the courtroom, the law isn’t really set up to deal with “I think I can” type answers. We like to have more definite answers. Just imagine getting on a plane and the pilot says, “I think I can land this plane safely.” Obviously, you’d have some concerns about whether or not you should fly with him. You’d want a definite answer. Can you give me a more definite answer, Ms. Jones? Can you be fair in this case?

Juror: Yes, I can be fair.

The danger in this type of “rehabilitation” is that the court may still have a doubt about the juror’s ability to be fair. If the judge thinks that the witness’s “Yes” response was merely coerced by your questioning, the witness will still be stricken for cause.

Instead, you need to follow up and let the record reflect how the juror truly feels. One of the best ways to do this is by following up with an open-ended question asking the juror to elaborate on her answer. Here’s are two examples:

Sample 1:

  Lawyer: Ms. Jones, can you be fair in this case?

Juror: Um, I think I can.

Lawyer: Ms. Jones, can you think of any reason why you couldn’t be fair in this case?

Juror: No, there’s no reason I wouldn’t be fair.

Sample 2:

  Lawyer: Ms. Jones, can you be fair in this case?

Juror: Um, I think I can.

Lawyer: Ms. Jones, what concerns do you have about your ability to be fair in this case?

Juror: I can’t think of any reason why I wouldn’t be fair.

By asking the follow-up question, you can save this juror from being improperly stricken for cause, forcing your opponent to use one of her limited peremptory strikes. In the courtroom, you only get one chance to hear from the people who will ultimately decide your client’s fate. Hopefully this tip will help you make the most of it!

It was a paper-intensive trial, one of those cases where the phrase “Plaintiff’s Exhibit #2,598,124” doesn’t seem to shock anyone.  Because the stakes were high, it was a well-financed operation, and both parties brought a lot of technology with them.

One of the gizmos the plaintiffs brought with them to help present their evidence was a computer projector and a visual display program like Sanction or Trial Director. If you try document-intensive cases, you know the importance of using these programs to help jurors focus on the important elements of your evidence.  Unfortunately, despite all the benefits these programs offer, if you don’t use them correctly, they’ll actually detract from the persuasiveness of your case.  As I was watching the plaintiff’s attorney present his evidence, I saw a few mistakes that negatively impacted his case.  Here are the mistakes I observed and tips to help improve your presentation the next time you’re exhibiting documentary evidence:

1.  Don’t expect jurors to read the entire page when it’s displayed on a computer screen. This case was tried in our courthouse’s ceremonial courtroom.  The ceremonial courtroom uses 42″ plasma screens to display images to the gallery, and smaller LCD displays to present images to the jurors.  It’s a nice system, but if you don’t zoom in to particular parts of the page, it’s impossible to read an entire page of a document.  When you try to view the entire page on those monitors, it looks like this image to the right.  Yes, you can see it, but you can’t actually read it.  Even with a hi-def screen, it’s impossible to focus on the entire page.  The only time you should show the jury the entire page of a document is when you’re trying to give the jurors an overview of the document they’re about to see.  Let them see what the document looks like, but don’t expect them to be able to read it.

The solution?  Zoom in.  Focus on one part of the document, and give your jurors a chance to digest that portion before moving on to the next section.  Probably a good recommendation would be to show the jurors just one paragraph at a time.  (A fiction writer’s paragraph — not a lawyer’s paragraph that goes on for 40 lines.)  Look at this example to the right.  It’s not enough to just highlight the important portion — you need to blow it up if you want the jurors to see it.  By blowing up the paragraph you want them to focus on, they can actually read the portion that matters to you.  Make it easy for your jury to absorb the information, and they’ll be more likely to remember it.

2.  Don’t compete with your visual aids. Visual images are usually far more compelling than aural testimony, so your jurors’ attention is usually going to be drawn towards your TV screen, not towards you or your witness.  When you’re no longer referring to the on-screen document and you want the jury to focus on your witness, switch your display screen to a blank screen so the jurors aren’t distracted.  (If you have the option, switch to a black screen rather than white, because the white screen is harsher on the eyes.)

3.  Don’t shine bright lights in your jurors’ eyes. Turn off any distracting lights.  The lawyer wasn’t using an overhead image viewer to display any images, since all of his documents had been scanned into Sanction. But for some reason, he’d turned the overhead projector on, so the projector light was shining brightly.  Every time he moved between the jurors and the bright light, they would go from darkness to bright lights shining in their eyes.  (Ouch!)  That can be distracting.  Be mindful of the projector lights and overhead display lights, so you don’t subject your jurors to a similar experience.

4.  Don’t publish private information. This last tip won’t necessarily make your presentations better, but it might make your clients (or their clients) happier.  As I mentioned earlier, this was a document intensive trial.  The plaintiff’s lawyer was publishing LOTS of documents to the jury using the projection monitors.  That meant that everyone in the courtroom could see the information.  Some of the documents he published contained private information that wasn’t essential to the case.  For example, one of his documents published the names, addresses, dates of birth, and social security numbers for 5 different individuals who weren’t involved in the case.  Hopefully, there wasn’t an identity thief in the courtroom that day, because that’s all the information he’d need to destroy their lives.  Unless it’s essential to your case, consider blacking out social security numbers and other private information from your documents before publishing them to the jury.  (Just make sure you clear it with opposing counsel in advance, and also explain to the jury why the information is blacked out.)

Your ability to persuasively present documentary evidence is essential to the success of your case.  Follow these quick and simple tips, and you’ll make it easy for jurors to focus on your documents and remember the essential details of your case.

When was the last time you watched someone else try a case?  Have you ever snuck into a courtroom and watched your opponent present a case?  If not, let me recommend you jump at the opportunity to watch someone else pick a jury and present their case.  If you do, you’ll learn some things that you wouldn’t normally notice about successfully trying cases.

Last year I had the opportunity to watch numerous jury trials and critique the performance of the attorneys.  When I watch a trial, I try not to read the case file or review a case summary, because I don’t want to know any more about the case than the jury would.  I want to be completely detached from the emotional background of the case, so that I can just sit in the back row and watch the trial unfold, critiquing the trial from the jury’s perspective.

Watching all of those trials, one of the things I noticed was just how irritating bench conferences are.  In one of the trials I watched last year, the attorneys seemed to spend more time presenting their cases to the judge than they did presenting their cases to the jury.  When most attorneys approach for bench conferences, they violate a cardinal presentation tip: Never turn your back on your audience.

Have you ever seen a live theater performance?  No matter where the actors move on the stage, they  never turn their backs on the jury.  It’s the same on TV.  You’ve probably noticed how TV families are always gathered on one side of the dinner table, right?  That’s so they don’t turn their backs on the camera and exclude anyone in their audience.  You know how rude it feels when someone turns their back on you.  But when you approach for a bench conference, that’s exactly what you’re doing.  You’re turning your back on the jurors.

The second problem with approaching the bench to argue a point of law is that you form an elite little club that excludes everyone else in the courtroom except you, your opponent, the judge, and the court reporter.  As I watched the attorneys huddle around the bench and whisper, I wanted to lean in and listen to the conversation.  I wanted to know what was going on.  And I was resentful that I was being excluded from their group.  Here are two lessons you can apply in your next trial to avoid ignoring or excluding your jury:

LESSON #1: Argue the Law Before Trial

The bench conferences I saw involved points of law that should have been handled before trial.  If you’re waiting until the day of trial to argue essential points of law or limit your opponent’s introduction of evidence, you’re waiting too late.  File motions in limine before trial, and you’ll be able to argue those essential points of law in advance of trial, minimizing the need for legal discussions during trial.

LESSON #2: Don’t Turn Your Back on the Jury

If you must approach the bench to argue a point of law or respond to an objection, make sure you don’t exclude the jurors from your discussion.  That doesn’t mean raising your voice so they can hear what you’re saying — that’s improper.  But you can use your body language to include the jury at the bench.  Rather than turning your back on the jury, just turn your body half way or 3/4 of the way towards the judge.  Leave part of your body “open” towards the jury, and they won’t feel completely excluded.

You are a professional communicator.  It’s your job to speak on behalf of your clients and ensure that their voices are heard.  But what happens if you’re too nervous to properly present your client’s case?  When you forget what you need to say or if the words get trapped and won’t come out, your client suffers.  Nervousness can decimate the presentation of your case, but if you apply these quick and easy tips, you’ll minimize its impact and present your client’s case with strength and passion.

1. Be prepared.
Lack of preparation is the most common cause of nervousness in the courtroom.  Nothing will make you more comfortable in the courtroom than knowing you’re fully prepared for trial.  When it comes to minimizing nervousness in the courtroom, the Boy Scouts still have the best advice: “Be Prepared.”

Are you prepared?  Did you bring caselaw to support your position on expected evidentiary issues?  Do you have an alternative plan in case one of your witnesses is late to court?  Do you have a backup presentation plan ready to go if your technical equipment malfunctions?  Have you rehearsed your case and your presentation until you’re confident?  (Until you’re fully prepared for trial, none of these other tips will be much help to you.)

2. Don’t speak to “the jury” — speak to one juror at a time.
Another common cause of nervousness during trial is the fear of public speaking.  Public speaking routinely captures the #1 spot on the list of “Top Ten Fears.” Can you believe it even edges out the fear of death and the fear of spiders?!?  Just because you’re a trained communicator doesn’t mean you’re immune from a fear of public speaking.  And don’t make any mistake about it — regardless of whether you’re talking to a panel of 100 prospective jurors, or talking to the six or twelve jurors selected to try your case, what you’re doing is “public speaking.”  It’s not unusual for you to feel uncomfortable speaking to large groups.  Yet you probably feel perfectly at ease speaking to just one person, don’t you?  If you would feel comfortable presenting your opening statement to just one person, then you’re ready to present to six jurors, twelve jurors, or 1000 jurors.

Here’s the secret: rather than speaking to the entire jury, speak to just one person at a time.  Make eye contact with that person and talk one-on-one with them.  Don’t hold your eye contact so long that it becomes uncomfortable, but just long enough to make a connection.  Then make eye contact with another juror, and repeat the process.  Rather than talking to a group, you’ll be carrying on a series of one-on-one conversations.  If you talk directly to each person, you’ll forget that you’re speaking in public — it will feel like you’re carrying on a conversation.  Not only will this technique help you minimize your nervousness, it will also help you develop a more personal bond with your jurors.  Apply this simple technique of talking to one person at a time, and your presentations will become more personal (and more memorable) to your jurors.

3. Have a checklist.
You’ve probably heard it said that “the faintest pencil mark is better than the sharpest memory,” right?  That’s especially true during trial.  In trial, the stakes are high, emotions are high, and your mind is racing at breakneck speed.  If you were ever going to get nervous and accidentally overlook something, this would be the perfect opportunity.

To ensure that you never lose a case because you omitted an essential element, prepare a checklist of the elements in your case and keep it on top of your trial materials.   Here’s an example of how a prosecutor might organize the checklist for a simple D.U.I. case:

As your witnesses testify to each element, you check it off the list.  Before you rest your case, you review the list to ensure that every element has been proven.  In this example, the prosecutor wouldn’t want to rest his case yet, because he hasn’t proven that the court has territorial jurisdiction over the case.  I know dozens of young prosecutors who have lost misdemeanor cases because they forgot to prove venue.  Almost without exception, they overlooked the venue element because they were nervous.  A checklist like this may not eliminate that nervousness, but it can certainly prevent their nervousness from sabotaging the case.

Understand that it’s okay to be nervous.  You want to do a good job, and you’re concerned about your client, so it’s only natural that you’ll be a little nervous.  With everything that’s on the line, it would be a bigger problem if you weren’t nervous.  But don’t let your nervousness control you or debilitate your case presentation.  Follow these simple tips, and you’ll be able to control your nervousness, rather than letting it control you.