In every football game, coaches make decisions about whether to take a timeout, to accept a penalty, or to go for it on 4th down.  These decisions must often be made in a split-second, and can affect the entire outcome of the game.  Anyone who’s watched football has probably heard the old mantra, "Every second you leave on the clock unnecessarily may be the one your opponent uses to beat you."

That’s why football coaches spend so much time studying clock management techniques.  They think their way through every timing possible scenario before they take the field, because they know that they’ll eventually run into a situation where they need to make a split second decision.

How do they do it?  They script out their decisions in the calm of their office, before they run into the problem on the field. They know that their minds don’t work their best when dealing with distractions, time pressure, and screaming fans, so they figure out what the best possible response should be beforehand, and then implement it on the field.  

These coaches prepare charts to tell them when to kick and when to go for the 2 point conversion. They have charts to help them decide whether or not to stop the game clock.  They have charts to tell them whether or not to accept penalties.

Every conceivable problem gets mapped out before they take the field, so that they can make the best decision when it counts.

But what about you and your trial practice preparation?  Do you have a plan in place for dealing with emergencies?

Think about all of the things that could possibly go wrong in your next trial. Here are some examples:

• Your star witness is late…
• Your start witness doesn’t show up…
• Your exhibit is excluded…
• The judge reverses his pre-trial ruling and admits your opponent’s exhibit into evidence…
• The judge reverses his pre-trial ruling and doesn’t admit your exhibit into evidence…
• Your objection is overruled…
• Your opponent’s objection is sustained…

Do you have responses prepared for these scenarios?  If not, you need to invest some time burning the midnight oil and crafting a solution to each of those potential problems.

You’re not going to win jury trials because you’re the most attractive lawyer in the courthouse (even though you are, gorgeous!) or because you’re the smartest person in the courtroom (even though you are, Einstein!) Nope, you’ll win jury trials because you’re the most prepared lawyer in the courtroom, and you’ve thought of responses to every possible problem.

Being a trial lawyer is kind of like being a top notch surgeon performing an appendectomy.   Removing the appendix is easy.  Heck, I could probably teach you how to do it in a 30 minute seminar.  But surgeons don’t get paid the big bucks because they know how to remove the appendix — they get paid the big bucks because they know how to respond to the thousand different complications that can arise while you’re removing it.

That’s why you get paid the big bucks.  Trying cases is pretty easy. A high school student could probably do it if everything went according to plan. But things never go according to plan, and that’s why you get paid the big bucks.  Script out your responses to all of the different scenarios before trial begins, and you’ll be the lawyer representing the prevailing party, rather than the lawyer apologizing to your client.

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.

What problems are you encountering when trying to get your exhibits admitted into evidence?  Do you have specific evidentiary issues or topics that you’d like me to address?

Before I create a step-by-step manual for getting your evidence admitted, I need to know whether it’s something you’d be interested in and what topics you’d like me to address.  Please do me a quick favor and take 30 seconds to let me know if you’d be interested (”Yes, I’m interested,” “Nope, not interested,” “I’d rather read about…”) so I’ll know it’s worthwhile, and then tell me what topics you’d like me to cover.

Thanks in advance for your feedback,

Elliott Wilcox
Editor, Trial Tips Newsletter

If you try enough cases, you’ll eventually get your hands on “It.”   “It” is that amazing piece of evidence that makes or breaks your case.  “It” takes on many different forms:

• The “Are you lying then or are you lying now?” prior inconsistent statement
• The “I did it, and I’d do it again!” confession
• The video of the “disabled” plaintiff easily lifting 50 lb. bags of mulch or participating in semi-professional wrestling matches
• The “smoking gun” email that proves the defendant knew about the potential danger and decided to cover it up rather than recall the product

“It” is that piece of evidence that you can’t wait to show to the jury.  You won’t have “It” in every case, but when you do, it’s a wonderful feeling.  You know that as soon as you show “It” to the jury, the case will be won.

But hold on just a second.  There’s something important you should know before you show “It” to the jury.

No matter how damning that prior inconsistent statement may be, it’s worthless if the jury can’t hear it.  Even if your video completely contradicts the plaintiff’s claims, it’s worthless if the jury can’t see it.  Some jurors are too embarrassed to admit they can’t hear the recording, can’t read your exhibit, or can’t see your video.  You need to be assured that they see and hear “It.”  Here’s how to do it:

1. How to guarantee that the jury hears every word of your recorded statement. As you start playing the audio recording, cup your hand over your ear and make eye contact with each and every juror.  Non-verbally, you’re asking them if they can hear the statement.  If they can hear it, they’ll nod their heads in agreement or give you a “thumbs-up” sign.  If they can’t hear, they’ll give you a non-verbal clue to raise the volume (or maybe even tell you, “Turn it up, I can’t hear!”)

Here’s an added benefit: Making eye contact with each juror forces you to “check in” with them, so you can evaluate how things are going.

2. How to guarantee that the jury sees your video. Get to the courtroom early and set up your video display.  Turn on your video, then climb into the jury box.  Sit in every seat in the jury box so you can see what your jurors will see.  Do you need to crane your neck to see the video?  When you move to the end of each row, does it become difficult to see the video screen?  Is the screen too close?  Too far?  Make any adjustments now, before the jury gets here, so you can be assured that they’ll see your evidence.

Once you start playing the video for the jury, you’ll want to repeat the step outlined above to ensure that they can hear the recording.  While you’re making eye contact with each juror, track their sightline.  Can they actually see the video?  Are they actually looking at it?  If not, make any necessary adjustments so they can view your evidence.

3. How to guarantee that the jury reads your exhibit. If you’re presenting written exhibits to the jury (such as posters of the jury instructions or blow-ups of contract highlights) you want to make sure the jury actually reads your exhibit.  To make sure they have enough time to read it, quietly read through the entire exhibit to yourself twice. You’re already familiar with the exhibit, so you’re going to read through it faster than your jurors will.  After your second read-through, take a moment to make eye contact with every juror.  Look at their eye movement.  If they’re looking at you, they’re ready for you to proceed.  But if you see they’re still reading, don’t say anything yet.  Wait until everyone has finished reading before you or your witness say anything about the exhibit.

If you’ve done your homework, you already know how to make “It” admissible.  You also know when you should publish “It” for maximum persuasive effect.  Now just follow these simple tips, and you’ll guarantee that jurors will see and hear your most important evidence.

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.