If I had to add it all up, I know that I’ve logged more than 10,000 hours in the courtroom.  Between jury trials, non-jury trials, motion hearings, docket soundings, conference meetings, status checks, plea hearings, and miscellaneous courtroom arguments, I have spent a lot of time in a lot of courtrooms.  I’ve been the lead trial lawyer on cases, sat second chair, been a witness, been called for jury duty, and even put on the robe to judge mock trials and teen court.

With all of that courtroom experience, you’d think that I would have been ready for what happened a few years ago when I was called to the witness stand…  But I wasn’t.  My experience as a witness was one of the most frustrating experiences I’ve ever had in a courtroom.  Here’s the story of what happened, and five guidelines to prevent your witnesses from turning against you.

1. Tell your witness EXACTLY where to go.  I normally try cases in our downtown courthouse, and I’ve been to all of the outlying courthouses for miscellaneous hearings.  But I’d never been to this courthouse before.  The courthouse was located at the jail complex, and I didn’t know which building I was supposed to go to.  I had to poke my way around a little bit before I was able to find the right building.  Once I finally found the right building, I had no idea which floor I was supposed to go to, and I had no idea which of the two courtrooms I was needed in.  Even when I found the right courtroom (which was behind bulletproof glass) I wasn’t sure if I was supposed to wait outside with everyone else or if I was expected to ask a guard to let me inside.

Even if you think your witness knows their way around the courthouse, don’t assume that they know where to go.  Tell them not only where to go, but where they should park.  If there is more than one building, tell them which one they’ll go to.  Tell them how to navigate through the metal detectors.  Once they’re inside the building, which floor do they need to find?  Which room?  Should they stay outside the courtroom, or should they walk inside?  Remove all doubt from their heads — tell them exactly where to go.

2. Tell them what to bring to court.  How much will it cost to park their car?  Will they need to bring cash, or does the garage accept charge cards?  Will they need to bring coins to feed a parking meter?  Should they bring something to occupy their time while they wait?  Should they bring a book or magazine to read?  Is it okay for them to bring a laptop and do some work while they wait?

3. Tell them what to leave behind.  As I mentioned, this courthouse was at the jail, so security was heavier than at a regular courthouse.  Luckily, I’ve been to jail before (always on the “Just Visiting” side of the board) so I knew to leave prohibited items (like my cell phone and the shiv I made by sharpening a spoon) outside in the car. 

If there are any items your witnesses shouldn’t bring to the courthouse, tell them specifically what they can’t bring.  And don’t limit your list to items you don’t want them getting caught with at the security lines, like drugs or weapons.  Tell them the other items that you don’t want coming into the courthouse.  For example, if someone brings attorney-client privileged documents with them to the witness stand, the opposing attorney may be entitled to review them.  If the item isn’t necessary to aid their testimony, tell them that they’re probably better off leaving it at home.

4. Lie to your witness about how long it will take.  That’s right — LIE to them.  Why?  Because it never goes as quickly as you hope it will.  If you lie to them about how long it will take, you’ll probably be telling them the truth.  Here’s what happened to me:

I was told to be in court at 1:30 PM for a 1:30 hearing, that I was the only witness, and that my testimony wasn’t going to take any longer than a few minutes.  Relying on that information, I blocked off 1:30 PM – 3:00 PM on my calendar, just to be safe, but left two important appointments on my calendar: An appointment at 4:00 PM, and a speech to the law school at 5:00 PM. 

I arrived on time and was ready to go at 1:30 PM, but they didn’t call the case.  “No problem,” I thought, “That’s why I scheduled some extra time.”  But then they didn’t call my case at 1:45 PM, either… 

2:00?  Nope. 

2:30?  3:00?  3:30?!?  Nope, nope, and nope.

As the clock ticked past 3:00 PM, I started getting antsy.  As 3:30 came and went, and I started realizing I wasn’t going to make my 4 o’clock appointment, I started getting upset.  And as the small hand spun past the 4 o’clock position, I moved from upset to angry. 

Things would have been more relaxing if someone had simply lied to me: “Don’t schedule anything this afternoon, because this is going to take all afternoon.  You might even need to stay past 5.”  If someone had lied to me, I would have rescheduled everything else and just planned to spend the entire day in court.  Not only that, but instead of being irate when I was finally released at 4:15 (more than two hours longer than I’d expected), I might  have actually been happy about it, thinking they’d gotten me out early.

5. Respect your witness’s time.  Finally, more than 2 ½ hours after I was told to be there, I was called to the witness stand.  I turned to the clerk, raised my right hand, and took the oath:

Q: “Do you swear to tell the truth, the whole truth, and nothing but the truth?”
A: “I do.”

Those were the only words I spoke in the entire hearing.  As I was being sworn in, the judge asked the lawyers to approach the bench.  They spoke for a few moments, and then announced that the case was being continued to a later date until a companion case could be resolved.  My entire afternoon was wasted, and they hadn’t even needed me for the hearing. 

How cooperative do you think I’ll be when they ask me to come to the next hearing?!?

Just because we can issue subpoenas and force people to sit in court doesn’t mean we should.  The easiest way to convert a friendly witness into a hostile witness is to disrespect them or waste their time.  If there’s a chance your witness won’t be needed, tell them up front.  As soon as you find out that the hearing is going to be cancelled or that you don’t need their testimony, tell them immediately and apologize for the inconvenience. 

In short, the best way to keep your witnesses from hating you (and possibly sabotaging your case) is to follow the Golden Rule.  Treat your witnesses like you want to be treated, and you won’t turn your witnesses into enemies.

The case was serious.  The charge?  Attempted Murder with a Firearm.  The defendant was accused of shooting the victim in the head, and he was facing a potential sentence of life in prison.  You would think that because its seriousness, my opponent and I would be fighting over every single issue in the case.  But nothing could be further from the truth.

Instead, we were standing in the hallway behind the courtroom, talking with the judge and telling him that we were stipulating to nearly every material fact in the case, that we were streamlining the introduction of exhibits, and that we’d agreed to significantly reduce the number of witnesses who would testify.

Why would we do that?  Why would two experienced attorneys (each hoping for a completely different outcome) agree to almost all of the issues in a case?  We did it because we knew the strengths and weaknesses of our cases and were able to identify the true issues in the case.  In short, we knew what mattered and what didn’t matter.

Many attorneys don’t like to stipulate.  They’re afraid that if they agree about anything with their opponent, they’ll seem weak.  So instead, they argue about everyissue with their opponent.  Typically, the attorneys who are most afraid of stipulating are also the ones who either don’t understand their cases very well or don’t know how to try cases.  But in my experience, the attorneys who stipulate are usually the best attorneys in the courthouse.  They understand their cases inside and out, and know where to pick their battles.  They streamline their cases, identifying the important issues, and agreeing to everything else.

If you’re thinking about joining their ranks and stipulating to parts of your case, here’s a quick list of some things you might consider agreeing to:

• Witness credentials
• Authenticity of business records
• Evidentiary foundations
• Distances
• Demonstrative exhibits
• Accuracy of transcripts
• Identities of parties
• Venue
• Minimum or maximum damage amounts
• Liability (when damages are the only issue)
• Damages (when liability is the only issue)
• Allowing witnesses to testify by telephone or video
• Admissibility of exhibits
• Permitting opposing counsel to ask leading questions to expedite testimony
• Permitting witnesses to give narrative responses so they can “tell their story”
• Introducing depositions or sworn statements in lieu of live testimony

This list is just the tip of the iceberg.  The better you understand your case, the more issues and items you’ll want to agree to.  But, if you’re going to use stipulations during trial, you’ll want to make sure the jury actually pays attention to them.  Here are three tips for maximizing the impact of your stipulations:

1. Don’t call them “stipulations.” Are you confident that each of your jurors knows what “stipulation” means?  Don’t risk any confusion.  Rather than titling the document “Stipulations,” consider titling the document, “Agreed Upon Facts,” “Agreement Between the Parties,” or “Facts No Longer in Dispute.”  Also, consider writing an introductory paragraph like this: “Both sides have agreed to the following facts.  There’s no need for any further proof of these facts — they are no longer in dispute, and you may accept them as true.”

2. Get everyone to sign the document. Not just the lawyers — have all of the parties sign the document.  That way, none of the jurors will get the mistaken impression that only the lawyers agreed to the stipulations.  To really add some extra “oomph” to the agreement, ask the judge to formalize the agreement by signing off on the document.

3. Introduce stipulations at the most effective time. Many lawyers fall into the trap of waiting until the end of their case before publishing all of their stipulations.  The judge says, “Call your next witness, counselor,” and the lawyer responds, “No more witnesses your honor — but I do have 40 minutes worth of stipulations to read into the record.”  If that’s how you introduce your stipulations, “the record” will be the only one in the room paying any attention to them.  The jurors will fall asleep before you finish reading the third page of the stipulations, and they’ll ignore your carefully crafted agreements.  (Even worse?  Those attorneys who don’t even read the stipulations into evidence.  They just introduce the agreements into evidence and then expect the jurors to read them in the deliberation room.)

To maximize the impact of your stipulations, you want to publish them at the most effective time.  For example, let’s say that you and your opponent have both agreed that a firearm recovered from the house was loaded and operational.  Rather than waiting until the end of your case to read that stipulation into evidence, you should publish it to the jury when the gun becomes important.  After the witness testifies, “I saw a gun next to the baby’s crib,” you can read the stipulation to the jury: “Both parties have agreed that the firearm was loaded and fully operational.”  Doesn’t it make more sense to publish it then, rather than waiting until the end of the trial when the jurors have forgotten about the gun?

Consider making stipulations an integral part of your trial practice.  The sooner you understand why to stipulate to issues in your case, the faster you will develop your trial skills.  The better you understand your case, the more you’ll stipulate to.  The more you stipulate to, the more focused your case will become.  The more focused your case becomes, the better you’ll try your case.  Keep it up, and before long, you’ll be one of the best trial lawyers in your courthouse!

It was a serious DUI accident, and the issue was whether or not the jury would be allowed to hear the results of the defendant’s blood alcohol level test.  If the blood test results were deemed inadmissible, the plaintiff’s case would be significantly weakened, so both sides were extremely well prepared for the hearing.

The defense was the moving party, so they bore the initial burden of persuasion.  For their first witness, they called a toxicologist, and started with the routine questions about his background.  If you’ve ever called a witness to the stand, you’ve gone through a similar process.  You’ve asked witnesses where they went to school, what they majored in, when they graduated, etc.  In fact, if you’ve tried cases for any significant period of time, you’ve probably posed those types of questions to dozens, maybe even hundreds of different witnesses.

But let me ask you an important question: Do you listen to the answers?

Surprisingly, many lawyers don’t.  During direct examination, many lawyers are so busy thinking about their next question that they don’t bother listening to the witness.  After all, you already know what the answer is supposed to be, don’t you?

The problem with not listening to the witness is that you can ask stupid questions and appear foolish.  In this motion hearing, it was obvious that the attorney was prepared.  It was obvious that he’d spent a significant amount of time rehearsing with the expert witness.  It was obvious that he knew what the witness was expected to say.  But it was also obvious that he wasn’t listening to the witness.  And that’s what prompted this exchange:  

Q: Mr. Expert, what degree did you receive from the University of California – San Francisco?

Judge: He received a Master’s degree in Chemical Engineering from UC-SF in 1972, just as he said earlier.  Don’t waste our time by re-asking questions that the witness has already answered, counselor.  You have a limited amount of time to present your evidence and your arguments.  How you choose to use it is up to you, but in three hours, this hearing will be concluded, and you won’t get any additional time.

Ouch!  It stings to get called on the carpet like that, doesn’t it?  The worst thing about hearing those type of comments is knowing that the comments are true.  The only good thing about this exchange was that it didn’t happen while a jury was watching.  Luckily, these situations are easily avoidable.  Here are the two most common reasons why attorneys ask questions that have already been answered:

1. Relying too much on your notes.  When you write out every question word-for-word, it becomes difficult to escape from your “script.”  Here’s an example of what happens when you’re tied to your notes:

Q: Detective Steele, please introduce yourself to the jury by telling them your name and where you work.

A: Sure.  Hello, my name is Jack Steele, and I’ve worked as a Detective with the Capitol City Police Department for the past 16 years.  I’m currently assigned to the Celebrity Crimes division, which handles all of the cases that end up on TV or in the newspaper.  Whenever a celebrity is involved with a crime, it’s my job to conduct the investigation, get “doubles” of all the paparazzi photos, and handle all of the press conferences. 

Q: Could you please tell the jury what you do for a living?

A: Again?!?

Don’t get so attached to your notes that you can’t escape.  Rather than writing out questions word-for-word, use bullet points or an outline.  Yes, it requires thinking on your feet to formulate your questions, but it also forces you to listen to the witness, so you’ll ask better questions.

2. Not caring what the witness has to say.  When you work on a case for months or years, you’ll hear witnesses’ stories over and over and over again.  After a while, the novelty of their stories begins to wear off.  The problem with that arises when you get to court.  Since you knowexactly what your witnesses are going to say, you aren’t as fascinated by their stories as you were the first time you heard them.  As a result, you “hear” what the witnesses say, but you aren’t “listening” to what they say.

Here’s a clue: If you aren’t interested in what the witness has to say, what are the chances that your jury will care about what the witness has to say?

To avoid that problem, pretend that you’re hearing the witness testify for the very first time.  Demonstrate a genuine interest in what they’re saying.  Lean forward, make eye contact, and actively listen to what they say.  Don’t look at your notes or think about what question you’ll ask next.  Just focus on the witness, treating them as if they’re the most important person in the entire world. 

Why?  Because for that brief span of time while they’re on the witness stand, they are the most important person in your world.  Treat them like that, and you’ll never again get caught asking questions that have already been answered.

Recently I was helping a friend draft a cover letter.  If you’ve ever spent much time reading resumes and cover letters, you know that most of them say something along the lines of, “Me!  Me!  Me!  I’m awesome!  I’m amazing!  I’m the best!”

But here’s the problem…  Employers don’t care about you.

They don’t care how awesome you are, how smart you are, or how skilled you are.

What they really care about is what you can do for them.  They want to know if you can successfully handle the job, whether you can help make them more profitable, or solve the problem that they need fixed.

That’s why good letters start off by entering the discussion that’s already going on in the employer’s mind, and position the prospect as the solution to the employer’s problem.  For example, here’s something you might want to read if you were hiring a receptionist:

“When you hire a new receptionist, one of the biggest concerns you have is whether or not that person is qualified to handle your QX-4700 AT&T phone system.  Dropped transfers and misrouted calls are not only annoying, they cost you business.  That’s why you want a receptionist who is an expert on the QX-4700.  For the past 7 years, I’ve worked exclusively with the QX-4700 and have trained 14 new attorneys how to set-up their voicemail and use the QX-4700 system.  My experience with the QX-4700 will ensure that your calls are routed properly and that your business operates at peak efficiency.”

That letter will probably generate a lot more interest than the typical, “I’m awesome, you should hire me” cover letter that most prospects send out.  More importantly, the better that the prospective receptionist can define the employer’s problem, the more likely he is to hire her.  If he picks up her letter and thinks, “Wow, she really understands the problems my office is facing,” then he’s probably going to assume that she’s the perfect solution to his problem.

The same technique applies when you’re trying to persuade jurors and win trials.

If you can get inside their heads and understand what they’re thinking about, you’ll do a much better job of structuring your closing argument and addressing their needs.  To persuade jurors, you need to enter the conversation that’s already going on in their minds.  So ask yourself,

• “What are they thinking about?”
• “What concerns do they have about the case?”
• “What’s going through their minds when I stand up to deliver my closing argument?”

If you can answer those questions, your closing will be more valuable to your jurors.  They’ll see you as the guide they can trust, the person who will help them understand the evidence, and the person they can rely upon to help them through the case.

Some jurors will feel offended if you presume to know what they’re thinking, so rather than assuming that you know what they want, you might want to preface your arguments with a statement like, “One question that a lot of jurors ask is…” and then asking the question on behalf of your jurors.  For example:

“One question a lot of jurors ask is, ‘How am I supposed to fill out the verdict form?’  Here’s how you fill it out:  One of you will be selected as the foreperson.  You’ll be responsible for signing and dating the form.  At the end, that person will sign their name [here] and print the date [here].  You’ll also check the verdict form [here], finding the defendant not liable for Ms. Jones’ injuries.”

“One question that we often hear is, ‘I’ve heard all of the testimony and seen all of the exhibits, but what am I supposed to with it?’  That’s why the judge is going to read you special instructions about the law.  He’ll tell you exactly how to apply the facts you’ve heard to the law.  One of the instructions he’s going to read you will talk about the issue of expert witnesses.  Here’s what he’ll say…”

“One thing that you might be talking about in the deliberation room is, ‘What do we do if we think both parties are partly responsible?’  Here’s how to answer that question…”

Regardless of whether you’re applying for a job, talking to a judge, or addressing a jury, it’s important to get inside the mind of the person you’re addressing and enter the conversation that’s already taking place inside their minds.  If you can define the problem they’re facing and provide the solution, you’ll be far more persuasive than anyone else in the room, and you’ll be the person they can trust when it comes time to make their final decision.  Good luck!