During a jury trial, the last thing that you want to do is to offend your jurors or give them a reason to ignore your witness.  Yet that’s exactly what many lawyers do

One of the best ways you can quickly improve your trial advocacy skills is to watch yourself on video.  When you watch yourself presenting an opening statement or conducting a direct examination, you’ll see yourself the same way the jury sees you.  (That may be wonderful, or it may be horrifying).  But even better than watching the video by yourself is to watch it with a more experienced attorney who can critique your performance and point out what you’re doing well or identify areas for improvement.

This past weekend, I got the opportunity to sit down with nearly two dozen different trial lawyers and evaluate their trial advocacy videos.  After watching several hours of video, I observed that many of them were making the same mistake in their examinations: They were ignoring their witnesses.

“Surely you can’t be serious,” you say.  “These were experienced attorneys.  I can’t believe they would purposely ignore their witnesses. ”

Yes, I’m serious… and don’t call me Shirley.

Here’s what I saw on most of the videos: The attorney would look directly at the witness and ask a question.  But as soon as the witness started to answer the question, the lawyer would break eye contact and start looking someplace else.

Why would they do that?  Why would they ignore their witness’s answers?  The truth is, they really weren’t ignoring their witnesses answers.  They’d invested a lot of time preparing their cases, so they already knew what the witness was going to say.  Rather than fully focusing on the witness, they just listened to the witness, breaking eye contact to look down at their legal pads and start forming their next question.  Yes, they were paying attention to the witness, but the problem was it didn’t look like they were paying attention to the witness.

What type of message do you think that sends to the jury?  Some of the jurors probably think to themselves, “If the attorney doesn’t think the witness’s answers are important and isn’t paying attention, why should I?”

You may think that’s not fair, but just like “The customer is always right,” your jurors are always right, too.  If they don’t like what you’re doing, then they can discount or even ignore your evidence.  In the end, they’ll make the final decision about your client’s fate, so they’re always right.  (Even when they’re wrong, they’re still right.)

You can’t afford to let the jurors think you’re ignoring your witnesses.  You must pay attention to your witness’s answers, even though you already know what they’re going to say.  The easiest way to do that is follow this guideline: Whenever the witness is speaking, your eyes should be focused on 1) your witness 2) your jury, or 3) the exhibit your witness is talking about.  If you look anywhere else, the jurors may think you’re ignoring the witness.

The next time you participate in a mock trial or do a dry-run of your direct examination, make sure you videotape yourself.  Don’t just focus the camera on the witness — make sure that you’re in the frame, too.  Pay particular attention to where your eyes are focused.  Where are you looking when your witness is talking?  Is your gaze focused on the witness, or are you buried in your notes?  Force yourself to avoid looking at your notes until the witness has finished answering your questions, and your direct examinations will dramatically improve.

How many times have your witnesses found themselves at a loss for words while trying to explain what happened to them or trying to explain what they saw?  It happens more often than you’d like, doesn’t it?

Early in my career, I was defending a motion to suppress in a Driving Under the Influence (DUI) case.  The issue was whether or not the police officer had a valid reason to stop the defendant’s car.  When I asked the officer about the reason for the stop, he told us that the defendant had made a “wide turn.”

“Could you explain that for us a little better, so that we understand what you saw?”

“He made a ‘wide’ turn.  It was a lot wider than a normal turn — he went out of the normal pathway for a turn, way out of the way, almost driving off the roadway.  I’m not sure if I’m doing a good job of explaining what I saw, but when I saw him make the turn, I thought he was out of control and a danger to other drivers on the road.”

He was right — he wasn’t doing a very good job of describing what he’d seen.  Even though the picture in his mind was perfectly clear, neither the judge nor myself could ’see’ what the officer had seen.  If I didn’t help him paint a clear picture, we were going to lose the motion, and we would lose the case.

That’s when I had a bright idea.

I took a magic marker out of my trial toolbox, walked over to the flipchart, and drew a quick sketch of the intersection the officer had been describing.

“May the witness step down the witness stand, your Honor?”

Intrigued, the judge said, “Officer, you may step down.”

Taking a business card out of my wallet, I drew a large arrow on the back of my card and handed it to the officer.  “Officer, pretend that this is the defendant’s car, with the arrow pointing in his direction of travel.  Please show use exactly what you saw when the defendant made this ‘wide’ turn.”

In an instant, any doubts about the validity of the stop were removed.  Using a crude, hand-drawn exhibit, the officer was able to show everyone exactly what he’d seen and exactly why he’d stopped the defendant’s car.  My opponent tried to cross-examine the officer, but wasn’t able to cast any doubts on the officer’s version of events.  Thanks to poorly drawn artwork and a makeshift prop, we won the motion.

But if lousy artwork and a business card can save the day, just imagine what you can accomplish with a little time and effort.  Here’s a quick and easy to create inexpensive courtroom exhibits that will help your witnesses tell their stories and show the jury exactly what happened.

Start by printing a large (30″ x 40″ is a good starting size, bigger is probably better) image of your scene.  Maybe it’s an aerial photograph of the apartment complex, the layout of the emergency room, or a map showing the fatal roadway or intersection.

EXAMPLE OF AN INTERSECTION AERIAL VIEW

After you’ve printed out your image, you’ll want to give it a magnetic backing. You can either purchase magnetic backing (it’s easy to find, just do a Google search for “Magnetic Adhesive Sheeting” and you’ll find tons of suppliers) or you can temprarily attach your image to a magnetic board, such as a magnetic dry erase board.

Once your image has a magnetic back, you can use small magnetic figures to “show” the jurors exactly where the collision took place, where the doctors and nurses were positioned, or where everyone was standing when the fight broke out.

For your “actors,” you’ve got two different options.  The first option is to print photos of the cars, the doctors’ faces, etc., attach magnetic backing to the photos, and then let your witnesses play.

The second option is to use 3-D figurines.  You might be tempted to use your old Star Wars figures (“I’ll use Luke Skywalker for my client, and the role of my opponent will be played by Darth Vader!”), but it’s probably better to check your local hobby shop or shop online for a wide variety of scale size replicas.  A quick search in the Google Images library will turn up hundreds of figures in all shapes and sizes.  You’ll find office workers, cars, outdoor workers, trucks, teenagers, travelers, police officers, animals, fire fighters, nudists…  Whatever you need, they’ve got it!  Attach a small magnet to the bottom of each figurine, and you’ve got an instant exhibit that will help your witnesses tell their story.

A quick note about scale: There are plenty of different sizes available.  Hobby shops will have sizes running from 1:220 (Z scale), to 1:87 (HO scale, the most popular model train size), all the way up to 1:12 (dollhouse size).  Don’t worry about matching the scale exactly — after all, this is a demonstrative exhibit, so the evidentiary requirements aren’t as strict.  Find one that’s big enough for your jurors to see, and then use a consistent scale for all of your elements.  You can’t use a “Z” scale train to represent your poor defenseless client, and then use a 1:12 scale monster to represent your opponent.  It might be fun, but the judge won’t permit it.

By using these quick and easy exhibits, you’ll make it easier for your witnesses to tell their stories.  Not everyone can adequately describe the images in their heads or put thoughts into words.  But if you give them some tools to help them tell their story, they can show you (and your decision maker), exactly what they saw.

Jack Bauer may be an expert with firearms, but Kiefer Sutherland, the actor who portrays him on the hit show 24, isn’t.  To make sure that the character looks like he knows what he’s doing when he handles a weapon like the Sig Sauer P228 9mm (either with or without the silencer), you can bet that Kiefer spent a significant amount of time familiarizing himself with the prop before they started filming.  Before your next trial, it’s essential that you familiarize yourself with your props, too.

“Wait a second,” you say, “What props?  My trials aren’t like the ones on Court TV.  I’m not bringing any ‘props’ into the courtroom.”

Yes, you will.  Whether you know it or not, during your next trial, you will be handling a variety of props.  Every exhibit and demonstrative aid that you’ll show the jury is a prop.  The computer and the projector that you’ll use to display images are props.  Even the lectern where you’ll place your legal pad is a prop. 

Your goal is to make sure that your prop handling doesn’t interfere with your case presentation.  You don’t want the jurors focusing on your props or how you present the information — you want them focusing on your images and on your client’s story.  To avoid looking incompetent or unprofessional during your next trial, you need to spend some time practicing with your props.   If you don’t, you run the risk of destroying the flow of your presentation or appearing foolish and clumsy.  Here are a few guidelines to ensure that your props enhance the presentation of your case.

Keep your props close at hand.  In every theater performance, the stage manager is responsible for ensuring that all of the show’s props are in place and ready to go.  Behind the scenes, they use a different “prop table” to hold the props for each act.  The prop table is covered with butcher’s paper, and then they draw an outline of each prop on the table, so they can immediately tell whether or not all of the necessary props are present.

During trial, if you’re unable to locate your exhibits or don’t know whether or not they’ve been admitted into evidence, you can lose your mind.  Luckily, you can use something similar to a prop table to guarantee that you have all of your exhibits for trial and that they’re properly admitted into evidence.  The best resource to use is an exhibit list where you’ll list every item that you intend to introduce.  You can download a sample copy here:http://www.trialtheater.com/documents/Exhibitlogs.pdf

Present your props for maximum impact.  How you handle an object affects how the jurors will perceive it.  If you treat it with reverence and respect, the jurors will think it’s more important than if you carelessly toss it about.  When you treat the firearm as if it’s loaded and eager to kill someone (perhaps even refusing to touch it, asking the bailiff or a law enforcement witness to display it to the jury), jurors will think it’s more dangerous than if you treat it indifferently or wave it about carelessly.  If you ask your witness to put on a pair of latex gloves before displaying a baggie of cocaine to the jurors, you can subtly send a message, “This stuff is dangerous – you don’t want to touch it.”  What message do you want your exhibit to send to your jurors?  Think in advance about how you’ll handle your evidence, so that you send the right message.

Know how the prop is supposed to work.  Play with the flipchart holder until you’re confident it won’t collapse in the middle of your closing argument.  Fiddle with the scale model until you know that it will work the same way every time you demonstrate it.  Mark your photos and charts so you can instantly tell which side is up.  A small amount of extra effort ahead of time will prevent you from stumbling or bumbling with your props during trial.

Make sure they can see your props.  Can the jurors see your exhibits?  Can they see over the rail of the jury box to examine your scale model?  Is the print on your poster large enough for that octogenarian juror to read?  Are the fluorescent lights creating a glare?  Do you need to adjust the blinds so that the sun doesn’t shine in their eyes?  Is your prop hidden behind the lectern or behind the witness stand?  Are you or your witness standing between the jurors and your prop?  Remember, if they can’t see your evidence, it doesn’t exist.

Be comfortable with your props.  The courtroom can be a dangerous place, especially in criminal court where it’s a regular occurrence to see kilos of cocaine or semi-automatic firearms introduced into evidence.  If you’ve never seen or handled these types of items before, your body language can affect your presentation of the evidence, especially if your hands are shaking when you publish the exhibit to the jury.  Take some time before trial to learn how to handle them safely and comfortably.

Practice with the computer projector.  By the time you get to court, it’s too late to discover your computer can’t talk to your projector or that you’re missing the connecting cables.  Get to the courtroom early to hook up your laptop, set up the screen, focus the image, and make sure everything works.  Since you’re early, go sit in the jury box and make sure you can clearly see the screen.  If you’re not using the projector until later in the trial, learn how long it takes to power up so you can turn it on before you need it.  Make sure you know how to switch the input from your laptop to your DVD player.

Practice with your laptop.  There’s a story (probably apocryphal) about an investigator who was delivering a PowerPoint presentation to a group of FBI agents.  Unfortunately, after connecting his laptop to the projector, he opened the wrong file, and unintentionally shared his collection of child pornography with more than 150 FBI agents.  (Supposedly, he was arrested on the spot and everyone broke early for donuts).

You won’t have anything that extreme on your computer, but you may have exhibits that haven’t been admitted into evidence yet or case notes you don’t want your opponent to see.  Invest some time cleaning up your computer desktop and label all of your folders appropriately, so you don’t accidentally open the wrong folder or file.  (If you have any doubt about whether you’re opening the correct document, simply place a piece of paper in front of the projector to black out the screen until you’ve found the correct document.)

Make sure your laptop is plugged in.  A few years ago, I was watching a community theater show that was using a laptop computer to present photos, audio, and video recordings above the stage.  The imagery and sound were integral to the successful presentation of the show.  Before the show started, the technician checked to make sure it was plugged it, but sometime during the performance, the power cord came unplugged.  At first, no one noticed, because the computer continued playing on battery power.  But then, halfway through the final act, the video (which was integral to the act) suddenly winked out and died! 

Don’t let the same thing happen during your trial.  You don’t want to reboot your laptop during closing argument or scramble for a power solution halfway through your direct examination.  Your laptop has an indicator which tells you if the computer is plugged in or running on battery power.  Make sure you know where it is so you can occasionally monitor it during trial.

Used effectively, props can dramatically enhance the persuasiveness and memorability of your case.  Invest time and effort learning how to properly handle your props, and your case presentation will be smooth and worry-free.

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.

Sometimes, you won’t have much choice in picking your experts (ex. The treating physician, the toxicologist who analyzed your drugs).  But, if you do get the opportunity to pick your expert, think about what type of expert you’d like.  Within your range of choices, do you have an expert who has practical, specific knowledge about this particular subject matter?  If your case involves a crash between two sedans, you’d be better off having someone who specializes in crashes between sedans rather than a general accident reconstruction expert or someone who only works with SUV’s.

Ideally, you want someone who has formal training plus practical experience.  Often, jurors feel that practical knowledge is more valuable than “book knowledge.”  A mechanic who works on cars might be more interesting (and believable) than a Harvard educated design expert.  They might be more willing to believe a crack addict who says, “This s**t is crack!” (Brooks v. State, 762. So.2d 879 (Fla. 2000) – no abuse of discretion to determine that experienced dealer of crack cocaine was qualified to testify as an expert regarding the identity and approximate weight of the rocky substance in the bag) than a toxicologist with lots of fancy letters after his name.  Or maybe not.  You’ve got to know your potential jury pool.  Regardless of who you pick, here are three essential tips qualities your expert should possess:

1. They must be willing to prepare. They must be willing to invest the time to become familiar with your case.  Some experts are too busy.  They won’t reach an opinion until the day of trial (too late to help!)
2. They must be impartial. If your expert appears to be a “hired gun,” he won’t be as persuasive.  If you’ve got the choice between someone who testifies solely for the prosecution or someone who testifies for both sides, consider the benefits of someone who doesn’t seem to be tied to one party.
3. They should be good teachers. They not only need to be able to teach you (the best way to cross-examine the opposing expert is to have your expert teach you and point out what the other guy did wrong), but they also need to be able to teach the jurors without talking down to anyone.  He should be able to explain things that the jury won’t intuitively understand.  He should also be able to show the jury that the reason he’s an expert is because he knows more than they do.  For example, when determining speed calculations using skid marks, one of the things that isn’t in the equation is the weight of the vehicle.  Intuitively, we assume that a heavier vehicle would take longer to stop.  But in reality, the heavier the vehicle is, the higher the braking ability because it exerts more friction/drag/force …  it seems counter-intuitive, but it isn’t.  The expert should be able to explain these topics so that the jury easily understands them.

Get them involved early. The longer you wait to get your expert involved, the less prepared they will be.  Give them enough time to prepare.  Don’t wait until the last moment to add them to your case.  The more time they have to get prepared, the better they’ll do.

Preparation. Give them everything they need to make an informed decision.  If you hold something back, that affects the quality of their opinion.

Is he testifying within his area of qualification? Not every expert is an “expert.”  For example, you’re a lawyer.  That means you’re an expert in the field of law.  But if you were asked about a specialty area within the field of law, you might not be an expert.  Let’s say that you’re a criminal defense lawyer.  If you were asked to testify regarding federal scoresheet guidelines, you’d easily be considered an expert.  But what if we asked you about another legal topic, such family law or marital dissolution (topics that you haven’t touched since law school).  Even though you studied it, it doesn’t mean you’re an expert.  The same is true with your witness.  Make sure that you’re calling him to testify about a topic he’s specifically qualified in, and not just something he has general knowledge about.  Don’t let the witness go beyond his expertise, or you’ll have disastrous results and a painful cross-examination.

Is he testifying within the limits of his expertise? What do you expect from him, and can he deliver?  Make sure that you understand the limitations of the witness’s expertise.  Not only do you need to evaluate what the witness can they testify to, you also need to identify what he can’t testify to.  What are the limitations on their science?  For example, with head-on collisions, the degree of angle can dramatically impact the equations, so your crash reconstructionist might not be able to give you a speed estimate.  Make sure you understand the limitations of the science before calling the witness.

Help him understand how a trial works. Does the witness understand how his testimony fits into the overall picture?  Tell him about how a trial operates.  Explain the difference between direct and cross.

Prepare him for cross-examination. Conduct a mock cross-examination.  Don’t be a wuss – ask him the most difficult questions you can.  Challenge him.  Better to discover the weaknesses in your office rather than on the witness stand.  Specifically prepare him for your opponent’s cross.  Will there be personal attacks?  Wagging fingers?  Ridiculously long questions?  Short, staccato questions?  Strange mannerisms?  Let your witness know what’s coming.  Identify “trap” questions your opponent likes to use and explain how to answer them.  (ex. “Did you discuss your testimony with anyone?”  Well, obviously they spoke with you.  Don’t deny that they spoke with you… it’s ok.  “Were you paid for your testimony?”   “Did you review any documents while preparing for trial?”

Here are some sample tips for testifying that you can share with your witness:

• Don’t get rushed. Get into the pattern of “Question – Pause – Answer.”  By ensuring that you pause after each question (regardless of the question’s difficulty) you’ll avoid getting pushed into rapidly answering the defense attorney’s questions.
• Talk to individual jurors, not “the jury.” Make eye contact with individuals.  Think “conversation,” not “soliloquy.”
• Remember that you’re always on stage. Maintain a serious composure before and after you testify.  The jurors might see you as you drive into the courthouse, in the hallways as you wait to testify, or after you’ve finished testifying.
• If you make a mistake, correct it immediately. You’ve heard that “it’s not the crime, it’s the coverup.”  Jurors will forgive you for making a mistake — they won’t forgive you for covering it up.
• Don’t look to me for answers. I can’t help, and it looks like you can’t take care of yourself.
• Don’t be a jerk. Unfortunately, it needs to be said.  You can have all the brains in the world, but if you’re a jerk, the jurors won’t want to listen to you.

One final word before he takes the stand. Will he be there the entire day?  If so, tell him to refrain from leaning over the bar and whispering to the lawyers.  It removes his appearance of impartiality.  His appearance before he takes the stand is as important as his appearance on the stand.  How is he dressed?  How does he approach the witness box?  How does he stand when he takes the oath?  How does he raise his hand?  What will he carry with him to the stand?

This is isn’t intended to be a complete training manual on how to use epxert witnesses (because a complete discussion of that topics would take about 10,000 pages to write and would bore you to tears), but hopefully this quick primer will help you with choosing and using your next expert witness.