Even if you got a “D-” in your evidence class, when you saw that question you instinctively thought to yourself, “Objection! Hearsay!” My question called for the most obvious objection in the world, right? That’s why it’ll probably surprise you that my opponent didn’t jump up from his seat to yell “Objection!” In fact, he didn’t say a word. He just sat there and continued taking notes.

Before you ask, no, he hasn’t been disbarred, and no, he’s not an idiot. The reason he didn’t object was because he couldn’t. Mr. Thomas was my opponent’s client, so the statement was an exception to the hearsay rule: Statements of party opponents (or, as it’s more commonly called, “admissions” or “statements against interest.”)

Admissions, especially when they’re caught on tape, are usually the most damaging evidence your jurors will hear. If you’re lucky enough to have a taped admission from your opponent, there are a number of wonderful things you can do with that evidence. For example, let’s say that you’ve got a 30 minute recording of a statement your opponent gave to the police about the crash. How many different ways could you use that recording? The first and most obvious choice would be to play the entire statement for the jury during your case-in-chief. You’d simply call the police officer to the stand, ask him to authenticate the recording, and then hit “PLAY.” Nothing to it, right?

The next way to use the recording is during cross-examination. Normally, when cross-examining witnesses about prior inconsistent statements, you confront them with the prior statement by reading it aloud from the transcript. Imagine how much more powerful your impeachment would be if the jurors heard the inconsistencies from the witness’s own mouth? It would be a lot more difficult to deny the prior statement, wouldn’t it?

Attorney: “You hoped Mr. Lumbergh would be fired, didn’t you?”

Witness: “No, of course not!”

Attorney: “Publishing the audio statement previously admitted into evidence as Defense exhibit #22…”

[Recording of witness’s voice]: “Lumbergh is a twit. If I had my way, they’d fire him, and stick that coffee mug up his you-know-what…”

Another way to use recorded statements is during closing argument, by playing individual snippets of testimony back-to-back so the jury can compare and contrast the statements:

Attorney: “The day after the murder, John Jones said that he had been home the entire evening. Remember his statement to Ofc. Smith?”

Recording of Jones’ statement: “Dude, I was home all night, I wouldn’t lie to you about that. I swear I was home the entire night. I never left the house.”

Attorney: But the very next day, when he was interviewed again, he made a very different statement, remember?

Recording of Jones’s statement: “I left the house around midnight and went to Krystal’s for some mini-burgers. I was only gone for like 45 minutes or so.”

In the old days, if you were lucky enough to have a recorded admission you wanted to play in court, the only easy way to do it was to bring your handy-dandy cassette recorder and play the entire statement. But the problem with playing the entire statement is that the recording rarely consists solely of statements against interest. Usually, recorded statements also include lots of self-serving hearsay and irrelevant comments. Out of the entire 30 minutes worth of “admissions,” you may want the jurors to only focus on less than a minute or two worth of testimony.

Back then, if there were any parts you needed to skip (such as suppressed statements) or any parts you wanted to highlight, you’d be stuck hitting the fast-forward button and keeping your eyes on the tape counter until you found what you were looking for. At best, it took too much time to fast-forward to the appropriate spot. At worst, your presentation became a comedy of errors as you fumbled and bumbled with the fast-forward and rewind buttons until anti-climatically reaching your impeachment material.

Luckily, nowadays, you’ve got digital technology at your fingertips which dramatically improves the ease of presenting recorded statements. And the best thing is, you don’t need to spend a fortune on professional editing equipment or fancy software to get the benefits of audio editing. With the help of a free program called Audacity (available for both Mac and PC at http://audacity.sourceforge.net/), you’ve got an easy way to edit audio statements on your laptop. All you need is a digital recording of the witness’s original statement and some basic knowledge about how to cut and paste on a computer. Once you install the program, you’ll see a screen that looks something like this:

The program is pretty easy to use, and they’ve got full documentation on their site. Once you or your assistant learn how to use it, you can do some amazing things with audio statements. For example, here are some of the different ways you can use this program:

Redacting an audio statement to remove irrelevant sections. No longer do you have to worry about the jury hearing irrelevant, suppressed, or improper comments. Simply highlight the improper comment and click <DELETE>. Presto! The statement will be removed, and you can now save the file as a new audio recording.

Extracting admissions from longer statements. Let’s say you don’t want to replay the entire witness statement, but only want to replay a small snippet. Audacity makes it easy to extract those admissions from extended audio recordings. Here’s all you’d need to do:

1. Go to <PROJECT> and click <IMPORT AUDIO>.
2. Choose the audio recording you want to import.
3. Use the selection tool to highlight the audio segment you want to export. (It’s almost the same as highlighting a paragraph in Word and clicking “Copy”)
4. Click <FILE> and scroll down to <EXPORT SELECTION AS WAV>
5. Choose a filename for your recording. (It’s easier to retrieve the correct statement during trial if you use descriptive titles for each file, such as “The Light was Red” or “The Light was Green”).
6. Click “SAVE”

That’s it! Now you have a standalone .WAV file of the admission that you can play on any computer. Be creative and think of how you could use those admissions. Could you use them during settlement negotiations by burning a “Greatest Hits” CD for your opponent? (“Here are the six times during depositions where C.E.O. admits to liability.”) Or import the statements to your iTunes playlist, so you can quickly click on the correct statement to impeach witnesses during cross-examination?

Maybe you want to use the statements during closing to compare and contrast what different witnesses said about the same events: “What was their understanding of the performance metrics for promotions? Let’s hear what the CEO, Jon Smith, had to say [PLAY CLIP #1]. But the CFO, Jane Smith, said something entirely different [PLAY CLIP #2].”

Statements of party opponents, especially recorded ones, can be some of the most powerful evidence you’ll ever admit. But just as with every other exhibit or testimony that you’ll ever offer into evidence, it’s not enough to simply understand what you should show to the jury. To get the most out of your evidence, you’ll also need to master knowing when you should admit it and how you should publish it. Learn how to use an audio editing program like Audacity to extract your admissions, and you’ll be able to play them to maximum effect for your jury.

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Me, too, but this time, I decided to rearrange the entire newsletter and the look on some of my websites.  Over the past week, I’ve made dozens of little tweaks and fixes — new graphics for the newsletter and website, fixing little problems (for example, the script that said “Tell a Colleague About Trial Tips”?  Well, I’m embarrassed to admit that it’s taken me a couple of months to discover the form didn’t work, so I had to completely re-write the code.  Ugh!)

It’s amazing what you can accomplish at 4 o’clock in the morning when your cell phone’s silent and no one is awake to send you email messages!  Anyway, I’d appreciate your feedback on the new look and any suggestions you have for improving www.TrialTheater.com, www.LawStudentTips.com, or Trial Tips Newsletter. (I also welcome any suggestions you have for articles you’d like to read or topics you’d like covered in video or audio format).

Please post your comments below.  Thanks for helping me keep the newsletter and the blog a helpful resource for trial lawyers around the world!

-Elliott

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Q. “What is the worst fraternity on this campus?”

A. “Well that would be hard to say, sir.  They’re each outstanding in their own way…”

Every other time that you’ve asked this question during your pre-trial preparations with this witness, he’s been quick to identify the offending fraternity.  But now, his brain seems to have gone blank.

[With apologies in advance to Speed fans]:
“Ok, pop quiz, hotshot. The witness has just given you an answer you didn’t expect.  If you try to ignore it, the bad answer will destroy your case.  If you try to lead the witness to the correct answer, your opponent will object.  What do you do?  What do you do?”

First things first: DON’T PANIC! Far too often, attorneys (especially younger attorneys) lose their minds when they get unexpectedly bad responses from their witnesses.  The worst thing you can do at this point is to give your jurors the impression that you’ve just lost the case.  Chances are, the witness’s incorrect answer isn’t nearly as fatal as you think it is, so put on your poker face.  If you freak out, the jury will amplify the importance of the negative answer.  Just keep your cool — you can fix this.

The next step, before you start jumping through evidentiary hoops trying to refresh the witness’s recollection or establish a past recollection recorded, is to ensure that your witness really doesn’t remember.

“What do you mean, ‘ensure that he doesn’t remember’?  Of course he doesn’t remember, because otherwise he would have answered my question correctly!”

Actually, that’s not necessarily true.  Often, witnesses know the correct information, but the reason why they don’t answer correctly is because we ask them lousy questions.  Before you attempt to refresh his recollection, take responsibility for asking a lousy question, and then try asking your question a different way to see if that jogs his memory.  For example, set some parameters for your question, and make it easier for the witness to answer:

Q. “Based on their GPA’s and disciplinary records, what is the worst fraternity on this campus?”

A. “Oh, that would be Delta house, sir.”

Sometimes, that’s all you’ll need to do to get the right answer.  But if rephrasing the question doesn’t work, you can also try asking for the information in a different manner.  Are there other questions you could ask that get the same answer?  Consider stacking those questions on top of one another:

Q. “Who dropped a whole truckload of feces into the swim meet?”

A. “Delta house.”

Q. “Who delivered the medical school cadavers to the alumni dinner?”

A. “Delta house.”

Q. “Every Halloween, the trees are filled with underwear.  Every spring, the toilets explode.  Which house is responsible for these shenanigans?”

A. “Delta house.”

Q. “What is the worst fraternity on this campus?”

A. “Delta house, sir.”

Q. “Of course I’m talking about Delta, you TWERP!”

It’s not as graceful as the first method,  but it still gets you to the correct answer without having to ask any leading questions.  But let’s say none of these rephrasing techniques are working.  Regardless of how you rephrase the question, your witness still can’t remember.  What do you do then?  When you’ve exhausted rephrasing techniques, the next step is to refresh the witness’s recollection.

Jurors understand that witnesses sometimes need help remembering details.  For example, if I asked you what you were doing on July 10th of last year, you probably wouldn’t be able to remember.  But, if I gave you a chance to look at your calendar, you could probably tell me exactly where you were and what you did.  That’s the reason why the rules of evidence allow witnesses to refresh their recollection.  Here is the process you’ll need to follow to help your witnesses remember:

Step 1. Show that the witness can’t remember.

Q. “What is the worst fraternity on this campus?”

A. “I can’t remember.”
A. “I don’t know.”
A. “I cannot recall.”
A. “I used to know, but I can’t think of the answer right now.”

Showing the witness’s lack of memory is an essential step that can’t be overlooked.  Unless you can show that the witness doesn’t remember, you won’t be allowed to refresh his recollection.  There’s a world of difference between the witness who can’t remember and the witness who remembers the wrong answer.  You can’t refresh a witness’s recollection simply because he’s giving you a bad answer.  (You can impeach him, but you can’t refresh his memory.)

Step 2. Show that the witness previously remembered the information.

Q. “Did you used to know which fraternity was the worst on campus?”

Q. “Prior to today, did you have an independent memory of which fraternity was the worst one on campus?”

Q. “DId you previously remember which one was the worst?”

Step 3. Ask the witness if there’s anything that would help refresh his memory.

Q. “Would it refresh your recollection to look at your report?”

A. “Yes, if I could review my report, that would help me remember.”

Q. “Is there anything that would help you remember?”

A. “Yes, if I could smell a whiff of stale beer and listen to Otis Day and the Knights singing ‘Shout,’ I think that would refresh my memory.”

Q. “What do you need to help you remember?”

A. “If you’d let me smash a beer can against my forehead, that always triggers my memory.”

The important thing to remember about refreshing memory is that you’re not limited to showing the witness documentary evidence.  Typically, you’re going to use written documents to refresh witnesses’ memories, but understand that you’re not limited to paper exhibits.  If there’s anything that helps the witness remember, you should be permitted to use it to refresh their memory.

During this step, it’s often worthwhile to have the witness explain to the jury why the item will refresh his memory and why he needs some help to remember.  For example, let’s say you’re dealing with a police officer who makes lots of DUI arrests each year.  By the time the case reaches trial, it’s understandable that he might need some help remembering the exact details of this arrest, as opposed to the dozens of other cases he’s worked.  Before he uses his report to refresh his memory, you’d want to ask him about the report.  “How soon after the arrest did you write the report?  Why did you write it?  How detailed does it have to be?  How accurate are you when you write it?  What details do you include?  Is it intended to help you remember details about the case months, years, or even decades afterwards?”  By asking those details, you help show the jurors that the refreshed memory will be accurate.

Step 4. Show the refreshing item to opposing counsel.

Step 5. Show the refreshing item to the witness, asking the witness to examine the item silently, and then look back at you when he’s finished.

Step 6. Ask the witness if his memory has been refreshed.

Q. “Having reviewed your report, does that refresh your memory?”

Q. “Did smelling the stale beer and listening to ‘Shout’ help you remember what fraternity is the worst on campus?”

Q. “Now that you’ve smashed a beer can on your forehead, are you able to remember which fraternity is the worst on campus?”

[If the item doesn’t refresh his memory, you can still try to get the testimony in through the “Past Recollection Recorded” evidentiary predicate, but you won’t be able to use the “Refreshing Recollection” predicate.]

Step 7. Once the witness has refreshed his memory, re-ask your original question.

Q. “Now that you’ve refreshed your memory, please tell us, what is the worst fraternity on campus?”

A. “That would be Delta house.”

It’s a good practice tip to tell your witness to turn over the document before answering, so the jury can see that he’s testifying from his refreshed memory, and not merely reading aloud from the document.  The jury wants to see that the witness has an independent memory of what happened, and isn’t merely parroting what he just read.

Hopefully, you’ll never run into the problem of having a witness forget what to say.  But, if you decide to try cases in the real world, sooner or later, it’s bound to happen.  When it does, use these quick tips to help refresh your witness’s memory, and your case will be back on track before anyone even notices.

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When it came to broadcast TV, you didn’t have any control over which movies would be shown, but at least one movie was guaranteed to be re-broadcast every year. From 1959 to 1991, The Wizard of Oz was an annual television tradition. First shown on the big screen in 1939, The Wizard of Oz is one of the most famous movies ever created, and is adored by legions of fans. Some of the characters in the film, such as Dorothy, The Cowardly Lion and The Tin Man, are among the most beloved characters in movie history. But one of the characters in the movie is portrayed as one of the most evil characters ever written. The filmmakers went so far out of their way to label her as being wicked that they actually call her the “Wicked” Witch of the West. They did such an excellent job of selling her “wickedness” that generations of moviegoers have recoiled at the sound of her cackling laugh and promises to “…get you, my pretty, and your little dog, too!”

But here’s an interesting question: What if she wasn’t really wicked, but merely portrayed that way by a biased storyteller?

In 1995, Gregory Maguire decided to set the story straight in his book, Wicked: The Life and Times of the Wicked Witch of the West. In this version, he reveals the Wizard of Oz as a corrupt government leader intent on subjugating his citizens, depicts Glinda the Good Witch as a self-absorbed snob, and tells a much different story about what really happend on the road to Oz. Most importantly, we learn that Elphaba, who will later become known as “The Wicked Witch of the West,” is not an evildoer, but merely a crusading animal rights activist intent on saving defenseless creatures from the Wizard’s maniacal plans. This version of the story was so so powerful that it was adapted into a wildly successful Broadway show, simply entitled Wicked, that became a Broadway hit in 2003 and proceeded to break box office records around the world.

Here’s the important lesson for trial lawyers to note. There are always two sides to every story. Although both stories in this case were built around similar characters and similar “facts,” they lead to wildly divergent conclusions. In one story, she’s the most “wicked” person in the kingom. In the other, she’s a kind, caring individual who’s character has been assasinated by a corrupt government.

As John Quincy Adams once said, “Whoever tells the best story wins.” In this case, both storytellers did remarkable jobs of pulling in the audience and constructing plausible, persuasive stories, but in the courtroom, only one storyteller can prevail. As a trial lawyer, it’s your job to tell your client’s story persuasively so that you win.

However, when you’re creating a persuasive storyline in court, you’re going to face a few limitations that most storytellers will never encounter. Most importantly, you’re not permitted to change the facts, re-cast the characters, or make stuff up. (As I’ve said before, “your facts are your facts.” If you try to change them, you’ll lose your license to practice.)

So if you can’t change your facts, how can you tell a persuasive story?

One of the most important things you can do is change how you frame your case. Framing makes a tremendous difference. If I show you a picture framed in a cheap plastic frame, you might think to yourself, “Eh… it’s alright, but nothing special.”

But, if I take that same picture to the frame store, get it matted, framed, placed behind non-glare glass, and framed in an elegant wooden frame, you might think, “Wow! That’s an amazing picture!”

Nothing about the picture changed — only the way it was framed.

How you frame your case makes a huge difference. Your facts are your facts, but the way you frame your story makes a tremendous difference in how the jury will view it. One of the most important lessons you need to keep in mind when framing your case is that your jurors don’t want to fight against inertia. They like to leave things the way they are, and not challenge their views of the world. The more you force them to fight their natural instincts, the more difficult you make your job.

For example, think about a case involving police brutality. Most of your typical jurors think that the police officers in their community are good, honest people doing a difficult, thankless job. If you try to frame your case as a story of “cops are bad,” then you’re swimming upstream, fighting against the jurors’ instinctual beliefs. However, if you reframe your story as “Cops are good, and the best way that we can continue to protect the good cops is to point our fingers at the bad ones,” you can use their instinctive beliefs and attitudes to your benefit. Same facts, different story.

The next time you go to court, your client will be depending upon you to tell (and to sell) his story to the jury. Don’t merely recite a bland story for them — pick through the facts so that you can tell the most persuasive story possible. Don’t accept the common thinking that your client is “wicked” — spend as much time as necessary thinking about how to reframe your facts, and you’ll be able to tell a story that portrays your client in the most positive (and persuasive) light possible.

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Every single second of every single moment of his opening statement was filled with the sound of his voice which when you think back upon it you have to admit you were kind of amazed because there wasn’t a single comma or period or pause I mean did this guy even need to breathe it didn’t seem like it because he just kept going and going and going without regard to oxygen or jury expectations or even the court reporter it was almost as if he was afraid that the thought of pausing would let someone else start talking and that would simply be unacceptable for him so rather than pausing for even a moment and letting you think about what he was saying he just kept talking and talking and…

Unfortunately, many trial lawyers’ opening statements and closing arguments seem to feel like this.

They either have such a poor understanding of the pause’s importance of pausing or don’t know how to effectively pause that you’re tempted to say, “Whoa, buddy! Stop! Take a breath before you pass out!” One of the most powerful tools in your opening statement and closing argument toolbox is the well-placed pause. Often, that brief moment of silence following a profound thought can be more important that the words themselves.

“WHY SHOULD I PAUSE?”
Imagine reading a newspaper without a single comma, period, or paragraph indentation – just word after word after word. How far could you read before losing your train of thought?

An opening statement or closing argument without any pauses feels exactly the same way to your jurors.

Do you want the jury to remember your message? To understand it? Do you want them to take the message into the jury deliberation room, and incorporate it into their verdict? If so, you need to give them a chance to stop and reflect upon what you’re saying. Here are three reasons why you need to effectively pause during your opening statements and closing arguments:

A pause lets us think. Many trial lawyers ask rhetorical questions during closing argument, but then move immediately to their next sentence without pausing. This robs the jury of their chance to think about how that question should shape their verdict or how it might apply to their deliberations. Pausing for a moment lets the audience answer the question and wrap their minds around your message.

A pause helps us feel. During opening statements, you often describe emotional scenes of great pain, fear, or loss. The best trial lawyers describe these moments with such clarity that the jurors feel exactly what happened to the clients and, on their own initiative, place themselves in the clients’ shoes. (Notice that I said, “on their own” — please don’t think I’m encouraging you to make any arguments that violate the Golden Rule!) After describing an emotional scene, give the jurors a moment of silence so that they can absorb its impact and “feel” the same experience.

A pause helps us absorb ideas. Your message travels at the speed of sound. Even in the largest of courtrooms, it travels from your mouth to the jurors’ ears almost instantaneously. But often, it takes a few extra seconds for your message to travel the last few inches from the jurors’ ears to their brains. Pause for a moment, and you’ll give your message enough time to complete its journey.

“WHEN SHOULD I PAUSE?”
There are several opportunities in every opening statement and closing argument where you might consider pausing:

• After you’ve said something important
• After you’ve asked the jurors a rhetorical question
• When you want the jurors to think
• When you’ve asked the jurors to remember a moment in
  their past or envision a common experience
• When you hit an emotional moment
• As a transition between points

Look through the outline of your opening statement or closing argument to find moments where your jurors need to mentally “breathe.” Notate your outline or make a mental note, so that you purposely pause at the appropriate moment.

“HOW DO I EFFECTIVELY PAUSE?”
Even when they purposely pause during their presentations, most trial lawyers underestimate the amount of time that they’ve paused. What seems like an eternity of silence before the jury may, in fact, last only a second or two. Here are three tips for holding your pauses for maximum impact:

Count silently. “One Mississippi, two Mississippi, three Mississippi, four Mississippi…” and then resume.

Look around. Make eye contact with at least three different members of the jury before continuing.

Get uncomfortable. Pause for one second longer than feels comfortable. The pause won’t be nearly as long as you think it is. You’ll feel uncomfortable, but your jurors won’t.

Effective trial lawyers know how to pause at the right moment and hold their pauses long enough to let jurors think, feel or respond appropriately. When you master the skill of pausing in your openings and closings, you’ll enhance the impact of emotional moments in your case and will help your jurors absorb the important issues in your case. It may feel uncomfortable at first, but before long, those pauses will become a natural part of your repertoire, and an essential element of your winning arguments.

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If someone made that offer to you, your immediate reaction would probably be, “Yes, please tell me what’s wrong!”

What’s surprising is that every day in courthouses around the country, lawyers regularly make offers like that to their opponents and don’t even realize it. For example, many years ago, I was the prosecutor handling a “Possession with Intent to Sell” narcotics case. It was a simple possession case (the drugs were found in his pocket), but the defendant insisted that he wanted a trial. I wasn’t the first prosecutor assigned to the case. A previous prosecutor had actually tried the case, but the jury had hung 5-1 in favor of “Guilty” so the case had been reset for trial. In the meantime, that prosecutor left our office, so the case fell into my lap. On the day of trial, several other cases on the docket seemed far more important than this one, so I offered the defense attorney a misdemeanor plea offer in hopes that we could resolve it and move on to more important cases.

“Oh no, that’s not gonna happen,” the attorney replied, “He wants his day in court.”

That seemed greedy to me, because technically, he’d already had his day in court, and now he was insisting upon a second day, but rather than say anything, I decided to bite my tongue and let the attorney continue talking. He proceeded to tell me what a wonderful attorney he was, how strong his case was, how weak my case was, and then, best of all, he started bragging about how great a job he’d done in the last trial: “The last time we tried this case, your predecessor called three witnesses, and that third guy didn’t even know what hit him. My cross-examination destroyed his credibility. By the time I’m done cross-examining him today, this courtroom is going to be littered with reasonable doubts. I can’t wait to get my hands on that guy again!”

The urge to interject during his tirade had been nearly overwhelming, but I continued holding my tongue until he’d wrapped up, then politely excused myself to make some last minute preparations for trial.

Jury selection proceeded without incident, and a short while later, we proceeded to opening statements. I delivered a perfunctory opening statement (“Drugs… Him… Possess… Thank you”) and sat down. After he concluded his opening statement, I proceeded to call my first witness, who testified that he’d found a large quantity of suspected drugs in the defendant’s pockets and that the drugs were packaged for sale, rather than personal use.

After he was cross-examined, I called a drug analyst to the stand, who testified about her work in the drug lab and confirmed that the items in evidence were actually narcotics. Her cross-examination was brief, so I decided to waive my re-direct examination. As she stepped down from the witness stand, I saw that the other attorney could barely restrain himself. This was the moment he’d been planning for — the opportunity to rip the next witness to shreds!

Once the lab analyst witness left the courtroom, the judge turned to me and said, “State, please call your next witness.”

Rising from my seat, I addressed the courtroom in a loud, clear voice: “Your Honor, that concludes the presentation of the State’s evidence, and the State rests its case.”

The defense attorney’s jaw hit the table in shock. He rushed to sidebar and, in a flabbergasted tone, said, “He… He can’t do that! I planned my entire case around cross-examining that third witness! What am I supposed to do now?!?”

Volumes could be written about the arguments that followed, but those are stories best shared at some other time, perhaps over a cold beer. Suffice it to say, his case had been torpedoed.

There are two important lessons you need to take away from this story. The first is this: Don’t brag or boast about your case strategies or the strengths and weaknesses of your case.

One of the reasons he lost the case was because of his tremendous ego and his need to boast. When he told me that he’d destroyed the third witness during the previous trial, I re-examined my case plan. I asked myself, “Do I really need to call this witness? How much does he add to the case, compared to how much damage he’ll inflict?” I decided that the minor amount of useful information he’d add to the case wasn’t worth the nightmare, and I decided not to call him. If the other’s lawyer’s ego hadn’t pushed him to brag and boast about the case, things might have turned out completely different.

Beware of falling into the same trap.

Since you’re a trial lawyer, your ego is larger than most. It’s nothing to be too embarrassed about — all lawyers have egos. Trial lawyers’ egos are even larger than most, because we live in the high stakes world of “win or go home.” We hate to lose, we love to win, and when we do a great job, we want to tell everybody else what we’ve done. It’s okay to brag, but unfortunately, some lawyers don’t know when to shut their mouths!

To avoid the problem and protect your clients, take a quick history lesson.

Back during World War II, the War Advertising Council and the Office of War Information (back in the ’40’s, federal agency names weren’t as cute or cryptic as today’s agency names, were they?) created a series of public service ad campaigns designed to remind Americans about the importance of preventing restricted information from being leaked to the enemy. The campaign was so successful that one of the catchphrases has become part of the American lexicon. Even if you weren’t alive when the campaign originally ran (1942-1945), you’re probably familiar with the phrase: “Loose Lips Sink Ships.” The lesson was simple: be discreet in your communications, especially when you don’t know who might be listening.

But before you’re tempted to reprint the posters and post them all over your courthouse, think about the second lesson from the story: Keep your ears open and listen.

Your opponents probably love to brag about the strengths of their case or the weaknesses in your case. Next time, rather than disagreeing with them, quietly listen to what they’re saying and encourage them to boast. Play “dumb as a post” and see what they say. As the great Yogi Berra said, “You can observe a lot just by watching.” Don’t get drawn into an argument with them trying to justify the strength of your case or dispute the strength of theirs. If they try to pick a fight, just give them noncommittal responses like, “You may be right,” and let them continue boasting.

You’re trained to battle in the courtroom, so it won’t be easy to suppress your natural instinct to respond in kind, but it’s something you’ll have to do. Then, after they’ve finished boasting, find a way to shore up your weaknesses or better prepare for their strengths. If you do that, then you can brag and boast when it really matters… After you’ve won your case!

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At one point, as we were debating whether or not the motion for mistrial should be granted, the judge asked him, “How have you been prejudiced?”

Here’s how he responded:

“I would have exercised my peremptory strikes differently, your Honor, and seated a different panel. Judge, the juror who lied to us was #11 in the jury pool. By the time we reached her, our jury was comprised of jurors # 1 - 2 - 4 - 6 - 11 and 13. At that point, I had used three of my peremptory strikes and had three more strikes available. If we had discovered the truth about her earlier, I would have asked that she be excused for cause, or would have used my fourth peremptory strike to excuse her. Instead, I used my fourth peremptory strike on juror #14. The next time we reached a panel, it was comprised of jurors # 1 - 4 - 6 - 11 - 13 and 16. If #11 had been properly stricken from the jury, the composition of the panel would have been different. Some of juror #11’s life experiences balanced out the life experiences of juror #1, but without #11 on the panel, I think the jury would have favored the plaintiff, and I would have back-stricken juror #1. Additionally, I exercised a back-strike against juror #6. If juror #11 had been properly stricken, I would not have exercised that strike. Instead, based on the composition of the panel, I would have accepted juror #6 so I could save one of my peremptory challenges to strike juror #21.”

I have to admit, I was impressed. At every point during the selection process, he could outline exactly which jurors had been seated, how many strikes each side had exercised, which order they’d been exercised in, and could tell us the exact composition of the jury pool. Up until this point, the only system I’d ever used for memorializing the jury selection process was a rudimentary model that cataloged which jurors had been stricken and which side had exercised the strikes. Here’s what my typical jury selection sheet looked like:

Actually, I used a shorthand method to document my strikes, so a typical jury selection sheet looked more like this:

It was an easy system that told me at a glance exactly who had been stricken and which side had struck the potential juror, but it didn’t give me much more information than that. I had no way of capturing when the jurors were stricken, which number strike had been used, or what the composition of the jury pool looked like. But if you want to create a perfect appellate record, that’s the type of information you’ll need.

After we finished, I asked if he’d be willing to share his jury selection system with me, and he said he would, and now I can pass it along to you. Here’s how his system works:

For our example, let’s assume you’re working with a panel of 24 jurors, each side has six peremptory strikes, and your jury is comprised of six jurors.

The first thing you’ll do is write down the numbers 1-24 on your legal pad, leaving enough space between each line to write a quick note or two:

Juror #1:
Juror #2:
Juror #3:
Juror #4:
Juror #5:
Juror #6:
etc…

As you each juror is stricken, you’re going to write down who struck them, and which peremptory strike they exercised:

Juror #1:
Juror #2:
Juror #3: Defense strike #1
Juror #4:
Juror #5: Stricken for cause (plaintiff’s request)
Juror #6:
etc…

Once you finally have six jurors seated, draw a line across the page and list the makeup of the jury:

Juror #1:
Juror #2:
Juror #3: Defense strike #1
Juror #4:
Juror #5: Stricken for cause (plaintiff’s request)
Juror #6:
Juror #7: Plaintiff strike #1
Juror #8: Defense strike #2
Juror #9: Defense strike #3
Juror #10: Stricken for cause (defense request)
Juror #11:
Juror #12: Plaintiff strike #2
Juror #13:
—————————————————————–
Panel seated: Jurors # 1 - 2 - 4 - 6 - 11 - 13
—————————————————————–

Once you have enough jurors seated to comprise a jury, the judge will ask if either side wishes to “back-strike” any jurors. Once either side back-strikes a juror, the composition of the jury changes. For example, let’s say that the plaintiff back-strikes juror #2. Here’s how your notes would look as the jury selection continues:

Juror #1:
Juror #2: Plaintiff back-strike #3
Juror #3: Defense strike #1
Juror #4:
Juror #5: Stricken for cause (plaintiff’s request)
Juror #6:
Juror #7: Plaintiff strike #1
Juror #8: Defense strike #2
Juror #9: Defense strike #3
Juror #10: Stricken for cause (defense request)
Juror #11:
Juror #12: Plaintiff strike #2
Juror #13:
—————————————————————–
Panel seated: Jurors # 1 - 2 - 4 - 6 - 11 - 13
—————————————————————–
Juror #14: Defense strike #4
Juror #15: Plaintiff strike #4
Juror #16:
—————————————————————–
Panel seated: Jurors # 1 - 4 - 6 - 11 - 13 - 16
—————————————————————–

Once again, the judge will ask if either side wishes to back-strike any jurors. This time, the defense strikes a juror:

Juror #1:
Juror #2: Plaintiff back-strike #3
Juror #3: Defense strike #1
Juror #4:
Juror #5: Stricken for cause (plaintiff’s request)
Juror #6: Defense back-strike #5
Juror #7: Plaintiff strike #1
Juror #8: Defense strike #2
Juror #9: Defense strike #3
Juror #10: Stricken for cause (defense request)
Juror #11:
Juror #12: Plaintiff strike #2
Juror #13:
—————————————————————–
Panel seated: Jurors # 1 - 2 - 4 - 6 - 11 - 13
—————————————————————–
Juror #14: Defense strike #4
Juror #15: Plaintiff strike #4
Juror #16:
—————————————————————–
Panel seated: Jurors # 1 - 4 - 6 - 11 - 13 - 16
—————————————————————–
Juror #17: Plaintiff strike #5
Juror #18: Stricken for cause (plaintiff’s request)
Juror #19: Defense strike #6
Juror #20: Plaintiff strike #6
Juror #21: Defense challenge for cause DENIED
—————————————————————–
Panel seated: Jurors # 1 - 4 - 11 - 13 - 16 - 21
—————————————————————–

Later, when it becomes important to establish a record because you’re requesting an additional peremptory strike, you discover a juror impropriety, or something else arises, you’ll be able to tell the judge what you would have done differently if your request for relief had been granted.

[Special thanks to Herb Kellener for sharing this tip!]

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Two hunters are out in the woods when one of them collapses. He doesn’t seem to be breathing and his eyes are glazed. The other guy whips out his phone and calls the emergency services.

He gasps, “My friend is dead! What can I do?”

The operator says “Calm down. I can help. First, let’s make sure he’s dead.”

There is a silence, then two gunshots are heard. Back on the phone, the guy says “OK, now what?”

The first time you hear that joke, it’s hilarious. The second time, it’s still pretty funny. By the third time, however, it starts to lose its luster. That’s the danger of repetition. Yet despite the danger, nearly every trial lawyer I’ve ever met lives by some variation of this theme: “You’ve got to repeat your most important fact three times before the jurors will remember it.”

Indeed, it’s true:

Repetition makes it easier for jurors to remember important details.
Repetition makes it easier for jurors to remember important details.
Repetition makes it easier for jurors to remember important details.

Every trial lawyer knows that repeating information makes it easier for jurors to remember. However, experienced trial lawyers also know that just because something is important once, that doesn’t necessarily mean anybody wants to hear it again.

That’s the paradox of repetition. Repetition helps us remember, but it can also bore us to sleep. As the trial lawyer, your goal is repeat the information often enough that your jury remembers it, but without putting them to sleep. Here’s the good news: You can repeat repeat important information without boring your jurors, just so long as you follow a few simple guidelines.

First, modify each repetition. Unmodified repetition is a surefire cure for insomnia. The repeated information needs to be different than the first version. You can’t simply repeat it, because that’s not only boring, it’s condescending. Basically, unmodified repetition tells your jurors, “You dummies probably didn’t get this the first time, so I’m forced to repeat it for you.”

To avoid that problem, make sure that your second iteration differs from the first. For example, if you made your first point with oral direct examination, consider making your second repetition with a different medium, such as a demonstrative aid, video testimony, or a physical exhibit.

Second, repetitions need to get better. Each version should increase in strength. Start with your weakest iteration. Each successive repetition should be stronger, otherwise we lose our interest. For example, you could start with the verbal testimony, then add the photo, then add the demonstrative exhibit. Or you could start with the tamest description, and progress towards the strongest and most visceral description. You want to increase the intensity. If you start with a 10, your next witness can’t be a 9, because even though normally a 9 might be great, it doesn’t work in this situation.

It’s like watching Raiders of the Lost Ark, and then following it up with a double-feature showing of Indiana Jones and the Temple of Doom and then Indiana Jones and the Last Crusade. They’re both enjoyable movies, but they’re a bit of a letdown after watching the original. If you’re gonna repeat something, the second version needs to be more memorable. Think Godfather II and The Empire Strikes Back, rather than Jaws II and Rocky II.

Third, keep it interesting. That principle is a little vague, but important nonetheless. You can repeat information all day long, just so long as you keep the jury’s interest. But the moment it stops being interesting, you’ll lose them. Take the Rocky franchise for example. All of the movies are basically the same (Rocky faces unbeatable opponent, Rocky does montage training sequence to the best workout music ever written, Rocky fights the unbeatable opponent, “Yo, Adrian!”), yet despite the repetitive nature of the scripts, millions of people enjoyed all of the films. (Well, except for Rocky V — that one really sucked).

The same thing is true with Toy Story II, Spiderman III, and the James Bond franchise. Not only don’t audiences mind the repetition, they actually enjoy it, because each new version is interesting. Your jurors feel the same way. They don’t mind hearing the same information a second or third time, just so long as you hold their attention.

The importance of repetition during trial can’t be overstated. Jurors may miss an important point the first time it’s presented, so it’s usually essential to repeat the point a second or third time. However, you can’t afford to lose the jury’s attention by mindlessly repeating the same information over and over again. But if you vary how you repeat the information, improve each repetition, and keep things interesting, your jurors will remember all of the important details in your case.

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The defendant was accused of sexually molesting a young child, and the evidence against him was strong. There was hardly a dry eye in the courtroom as the young girl described what the defendant had done to her. As the doctor described the girl’s injuries, you could feel the jurors’ horror turn to rage. By the time the detective testified about the defendant’s remorseless confession, the jurors were ready to convict and execute the sentence themselves.

Once the prosecutor had rested her case, the defense attorney rose and moved for a judgment of acquittal (directed verdict). That’s when things went awry.

Normally, in a case as strong as this one was, the motion for judgment of acquittal should have been merely a pro forma motion. But now, the judge was seriously considering granting the motion for acquittal. Why?

The defense attorney hadn’t attacked the strength of the molestation evidence. Instead, he said that the prosecutor hadn’t put forward any proof that the offense had occurred within the county lines. In every criminal case, the state needs to prove that the court has jurisdiction over the subject matter.

The prosecutor’s face turned ashen. She realized that the defense was right - she hadn’t proven venue. If she couldn’t quickly think of something, this case was going to be dismissed…

How can you avoid the same problem with your case?

Here’s an incredibly easy technique you can use to ensure you never lose a case because you omitted an essential element of your case: The Checklist!

“A checklist?”

That’s right. The same thing that helps you navigate your way through the grocery store can help you win your next trial. But your trial checklist is even more important than your grocery list. In trial, the stakes are high, emotions are high, and your mind is racing at breakneck speed. If you were ever going to accidentally overlook something, this would be the perfect opportunity. You’ve probably heard it said that “the faintest pencil mark is better than the sharpest memory,” right? That’s especially true during trial. So rather than risking an oversight, prepare the checklist while your mind is calm.

On your checklist, you should list every element you must prove to win your case. For example, let’s say you are prosecuting someone for the crime of Battery. (Don’t worry, defense attorneys, this article isn’t just for prosecutors and plaintiff’s lawyers - I’ll show you how the checklist can help you, too). Here in Florida, to prove a simple battery, you need to show that the defendant “touched or struck the victim against his will.” But you also need to prove that the defendant is the person who did it, and that the crime occurred within the court’s jurisdiction. Here’s how you would organize your checklist:

[  ] Identity
[X] Venue
[X] Touched or struck victim
[X] Against his will

As your witnesses testify to each element, you check it off the list. Before you rest your case, re-examine the list to ensure that every element has been proven. In this example, you wouldn’t want to rest your case yet, because you can quickly see that no one has identified the defendant as the person who committed these acts.

Using a checklist benefits defense attorneys, too. As the witnesses testify to each element, you check it off. When your opponent rests their case, if they haven’t put forward any proof of an element, you can focus your argument for JOA or directed verdict on the missing element. Defense attorneys can also use the checklist to present affirmative defenses, ensuring that you’ve met every element of the affirmative defense before you rest your case.

She was lucky. Don’t expect that you’ll be that lucky, too. On less serious cases, I’ve seen judges grant the judgment of acquittal to teach young prosecutors an important lesson. It’s certainly effective - I’ve never seen any of those attorneys repeat the same mistake. You, however, don’t need to suffer a judgment of acquittal or a directed verdict to learn the lesson. Prepare your checklist before trial, keep track of the testimony as witness’s testify, and you’ll never omit an essential element of your case.

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That’s a typical day in the life of most trial lawyers, right?

In reality, the life of a trial lawyer isn’t that exciting. Sure, we may spend more time in court than the TV lawyers do, but those superstar courtroom moments are few and far between. If you’re like me, much of your time in court is probably spent twiddling your thumbs, waiting for judges to call up your case.

Each week, I typically spend at least a dozen hours in court. Rather than let it become wasted time, I always try to keep my eyes and ears open for anything that might help you persuade jurors, win trials, or become a better trial lawyer. I also try to keep my ears open for any phrases that might detract from your ability to persuade or that might make you sound foolish. Over the past few weeks, there’s been one particular phrase that’s been grating on my ears. It’s a phrase that you’ve probably heard countless times in court. Heck, you’ve probably even said it (I know that I have) without realizing how much it can detract from your persuasive power.

Here’s the phrase: “As an officer of the court…”

“Wait a second,” you’re probably saying, “What’s so terrible about that? Doesn’t that phrase show proper respect for our role in the courtroom?”

Yes, it does, but the attorneys I heard weren’t using it to show deference to the court or respect for the profession. Look at how they used it:

“As an officer of the court, I wanted to let you know that I did attempt to coordinate depositions with Ms. Thomas, but we were unable to agree upon the meeting location.”

“I know this has been a contentious case, Judge, but as an officer of the court, let me say that I never asked my assistant to ignore Ms. Jenkins’ vacation schedule when planning the timing for motion hearings.”

“As an officer of the court, let me assure you that I met with my client several times before today’s plea conference to discuss the ramifications of his plea.”

Basically, they were asking to be trusted because of their position as an officer of the court. To boil it down to its most basic level, they were saying, “Trust me… I’m a lawyer!”

When lawyers draw attention to the fact that they’re credible because they’re “officers of the court,” it always causes me to question their credibility. I guess it’s the equivalent of a criminal suspect telling the police officer, “Officer, let me be honest with you…” When you hear him say that, what do you assume he’s going to do next? That’s right — you assume that he’s going to lie!

When someone calls attention to the fact that they’re being honest, we usually start to question everything else that they say. When a lawyer speaks in court, it is presumed that they’re telling the truth. But when you draw attention to that fact, it loses its persuasive power.

Judges shouldn’t be persuaded by your position or your title. Your credibility must be intrinsic. You need to demonstrate an “affidavit quality:” What you say must be true, simply because you are saying it. If you possess that “affidavit quality,” then you won’t have any need for superfluous (and unpersuasive) language. If you don’t have it, then no label exists which could make you credible.

The next time you speak in court, don’t rely upon your position or your title to persuade. Demonstrate that “affidavit quality” by letting your character and your credibility speak for you, and you’ll be the most persuasive lawyer in the courtroom.

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“¿Cómo está usted?”
“Comment allez-vous?”
“Come sta?”
“Wie geht es Ihnen?”
“How are you?”

Sooner or later, it’s going to happen. You’re going to have a great witness, someone who saw the entire incident and completely corroborates your client’s story. There’s only one problem…

You can’t understand anything they say.

What do you do? Not call them? Of course not. What you’ll do is call upon the services of a court interpreter to translate for your witness. Here are twenty tips to improve your results when working with an interpreter.

WHAT TO DO BEFORE YOU GO TO COURT:

1. Let the interpreter speak with the witness before trial. A witness from the Bronx in New York City speaks differently than a witness from southern Alabama. The same is true with speakers of foreign languages. Give the interpreter an opportunity to familiarize themselves with your witness’s regional dialect, unique vocabulary, and any differences in pronunciation. This is also a good time to discuss any limitations in education or language.

2. Use a qualified interpreter. Don’t use a friend, relative, or office worker for any serious court events. It gives the appearance of a conflict of interest.

3. Make sure the witness understands the interpreter’s role. The interpreter’s role is to translate everything that is said. The interpreter shouldn’t add anything, omit anything, or summarize anything. Your witness needs to understand that he shouldn’t say anything to the interpreter that he doesn’t want repeated aloud in court.

4. Give the interpreter some context. What is the case about? Who are the parties? When did it happen? It’s easier for the interpreter to properly translate if they have a little background information.

5. Create a vocabulary list. Will your witness be mentioning nicknames, street slang, speaking in “Spanglish,” repeating numbers (amounts of money, account numbers, phone numbers), or referring to unusual terms? Let the interpreter know in advance to minimize any risk of confusion. Are there any words which need to be specifically translated? In some languages, there may be numerous words to describe a single article or action (for example: slap, hit, smack, punch, thump, batter, knock, rap, bang, strike). If you need a particular phrase used, make sure you tell the interpreter in advance.

6. Craft your questions with extra care. When you say, “Did you go to the store,” do you mean “you, yourself,” or “you and the people you were with?” Eliminate double negatives or other “legalisms” that are more likely to be misunderstood.

7. Introducing translations into evidence. If you’re introducing a translated document into evidence, prepare with the interpreter before court. Don’t ask for an on-sight translation. The more legal or technical terms contained in the document, the greater the need for preparation.

WHAT TO DO WHILE YOU’RE IN COURT:

8. Speak directly to the witness, not to the interpreter. If you say, “Ask him who else was at the meeting,” the interpreter won’t translate, “Who else was at the meeting?” The interpreter will translate the equivalent of, “Ask him who else was at the meeting.” The interpreter’s role is to translate everything you say. Just pretend like the witness speaks English and speak directly to them.

9. Make sure the interpreter gets frequent breaks. It’s not easy to listen intently, speak non-stop, and keep your brain performing at an optimum level for extended periods of time. Give it a try. Watch the evening news for an hour, and simply repeat everything that is said. Don’t translate it into another language – just repeat what they’re saying. How do you feel 10 minutes later? 30 minutes? An hour? It’s not easy to perform real-time translation, so make sure you switch interpreters every ½ hour or so.

10. Speak loudly and clearly. Interpreters can’t translate what they can’t hear. Speaking with clarity is always important, but especially so when working with an interpreter. To ensure the interpreters hear everything that is said, position them where they can see and hear both you and the speaker.

11. Don’t let two or three people talk at the same time. It’s difficult enough to perform real-time translation for one person. Trying to translate what two or three people are saying at the same time is almost impossible. To avoid the problem, don’t interrupt the witness, compete with the opposing lawyer, or talk while the judge is talking.

12. Tell your witness not to interrupt. Sometimes, the witness speaks enough English to understand some of the attorney’s questions, but, due to the seriousness of the case, still requests the services of an interpreter to feel comfortable. Tell your witness that, even if they understand the question, they must not interrupt the interpreter. Tell the witness to wait for the interpreter to finish the translation, and to answer in their native language.

13. Don’t interrupt. If you speak a second language, you may understand your witness’s responses before the interpreter’s translation is complete. Even though you understand, don’t interrupt, because the judge and jurors still need to hear the translation before they understand what was said. Don’t interrupt. Wait until the interpreter has finished translating the witness’s response before you pose your next question.

14. Watch your pacing. You can expect that the interpreter will be efficient at around 150-200 words per minute. At rates faster than that, the interpreter may not be able to keep up, and will interrupt the flow of your presentation.

15. Be patient. Understand that the interpreter is translating thoughts and ideas, not just converting individual words from one language to another. Sometimes it takes longer to say something in another language than it does in English. Be patient, and give the interpreter a chance to translate.

16. Pause. Both you and your witness should pause to provide the interpreter an opportunity to catch up. However, make sure that you speak in logical, meaningful phrases. Unless you pause intelligently, it won’t help. Don’t pause every 10-15 words – pause at the end of a logical thought.

17. Let the interpreter signal to you when you need to pause. Tell the interpreter to raise their hands if they need you to pause, or use a “slow down” motion if you’re speaking too fast.

18. Let your witness present himself to the jury. Tell the witness to speak directly to the jury, the judge, or to the attorney and speak in a loud, clear voice. Just like any other witness, jurors will still read your witness’s body language.

19. Ask shorter questions and get shorter answers. The longer your witness’s responses, the greater the chances that some of the details will be lost in the translation. It’s obviously more difficult to remember a response that fills two pages of courtroom transcript than a reply that fills a single paragraph. Shorter questions will lead to shorter answers, allowing the interpreter to fully translate everything that is said without risk of omission or error. Give the interpreter permission to tell you or your witness to pause when your questions or answers grow too cumbersome for translation.

20. The interpreter won’t repeat or clarify non-verbal responses. If your witness says, “It was about this big” and holds his hands 6” apart, you need to describe for the record what the witness indicated. Some non-verbal actions have culture-specific meaning. If necessary, you should ask the witness what the non-verbal response means.

21. What to do about mistakes. Using an interpreter increases the risks of misunderstanding and miscommunication. If you think the witness has answered incorrectly, or that the witness didn’t understand the interpreter, your best solution is to immediately follow up by rephrasing the question.

Working with interpreters can be a rewarding experience. With their assistance, thoughts and ideas that would otherwise be trapped can be released and persuasively communicated. Prepare in advance, know what to expect, and your (translated) presentation will be a success.

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The reason their attempts fall short isn’t because the attorneys don’t know what topics to tackle, and it’s not because they don’t know how to frame their questions. The reason they fall short is because most trial lawyers are afraid to practice like they’ll play.

One of my favorite maxims from sports is “Practice like you play.” From little league to the professional leagues, coaches at every level of play invoke this phrase to push their players, because they know that a player’s performance during practice determines his level of success on the field. If a player can perfectly execute drills during the third hour of practice, when his body is weary and ready to give out, then you can be assured he’ll be able to perfectly execute those same skills during the final moments of the game.

One of the worst things coaches can do is to ease up on their players when they get tired during practice. If he lets them take it easy or run at 3/4 speed, that lack of discipline will come back to haunt the team during the next game. By pushing his players hard and expecting them to give 100% during practice, the coach ensures that his players develop strong habits that will carry over to the field and help them win games. The only players who prefer “easy” coaches are the players who don’t care about winning. Winners want the coach who will push them to their limits during practice, so that the gameday adversity seems easy by comparison.

The maxim of “Practice like you play” is just as true in the courtroom as it is on the football field. That means you need to prepare your client for the type of cross-examination that he should expect in the courtroom. That means you don’t cross-examine him at 1/2 strength, or 3/4 strength, or even 7/8 strength. You need to rev it up to 100% and attack your client with the same intensity (or greater) that he’ll confront in the courtroom.

Unfortunately, many trial lawyers aren’t willing to do this. They’ll tone down their attacks when preparing their clients for cross-examination, because they want to be “nice” to their clients. After all, the client is the guy who pays the bills, right? You may respect your client, you may like him, you might even be friends with him… but not during these preparations. Put aside your natural inclination to be nice to the people you like, because you’ll be doing your client a terrible disservice when preparing him for cross-examination if you’re “nice” to him.

The harshest cross-examination your client should ever endure is the one that will take place in your office before he testifies, because that will make the cross-examination he faces on the witness stand seem easy by comparison. You don’t want your client to step down from the witness stand and think, “Holy crap, I wasn’t prepared for that!” You want him to tell you, “I thought that guy was going to be a lot worse than he was. His cross-examination wasn’t nearly as bad as I thought it would be!”

As coach Paul “Bear” Bryant said, “It’s not the will to win, but the will to prepare to win that makes the difference.” Remind your client about the purpose of the preparation session: you’re preparing to win. If you and your client are willing to prepare to win, your client’s cross-examination session needs to be rough. Make him as uncomfortable as possible. Cross-examine him as harshly as your opponent will. Even harsher. Unload on him with both barrels, giving him the most rigorous cross-examination you can muster.

During this preparation session, he may hate you for it. He may curse at you or threaten to fire you. “Why are you doing this,” he’ll ask, “do you hate me or something?”

No, of course you don’t. Just like the demanding coach who pushes his players harder than they’ve ever been pushed before, or the drill sergeant who pushes his recruits to their breaking points, you’re not doing this because you hate him. The reason you’re pushing them so hard is because you love him, and you know that if he doesn’t practice like he intends to play, he’s going to get killed when he steps onto the field of battle.

Cross-examine your client as vigorously as you can, and “practice like you play.” In the short run, he may hate you for it, but eventually, he’ll be glad you pushed him as hard as you did. (He just may not get around to saying “Thank you” until after you’ve won the case.)

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In your last case, how many times did you visit the “scene of the crime” before trial began? Once? Twice? Half a dozen times?

Unfortunately, if you’re like many lawyers, the answer is probably “none.” Oh sure, you looked at photos, examined a map of the area, and listened intently as your witnesses described the scene, but when it comes right down to it, you never actually left the comfort of your office to go visit the scene.

For as long as I’ve been a lawyer, I’ve always heard how important it was to visit the scene. Law school buddies said I should visit the scene, but I didn’t listen. Trial partners told me that I should visit the scene, but I didn’t listen. Judges and senior attorneys said, “Go!”, but I didn’t listen.

To be candid, I rarely went to the scene because I always came up with an excuse for why I didn’t need to go:

“Hey, I’ve got a full caseload, with dozens of pending cases. 99% of all cases never go to trial, so why waste my time visiting scenes on cases that I know will be resolved?”

“You don’t really expect me to go to the scene of the murder, do you? That place is dangerous! Heck, a guy got killed there! (Um, I mean a guy was ‘allegedly’ killed there…)”

“I’ve seen the photos and a map of the area, so I’ve got a pretty good idea of what the place looks like.”

(Do any of my excuses sound familiar?)

Then one day, I found myself listening to someone whose advice I really trusted. This man’s worldly wisdom was more valuable than anything I’d ever learned in law school. He wasn’t a lawyer, but lawyers listened to him. In fact, his influence extended far beyond the courthouse walls. I have it on good authority that countless legislators, law school professors, judges (even a few Supreme Court Justices) still listen to everything he says, and will go out of their way to see him if he visits their town.

So who was this sage? Perhaps you’ve heard of him: His name is Jimmy Buffett, and the advice he extolled came from the song “Mañana” on his Son of a Son of a Sailor album. Here’s what he told me:

“Don’t try to describe the ocean if you’ve never seen it –
Don’t ever forget that you just may wind up being wrong…”

Buffett has given us some great advice over the years (“I took off for a weekend last month, just to try and recall the whole year,” “Come Monday, it’ll be all right,” “Barmaid, bring a pitcher, another round of brew…”) but this is probably the most useful advice he’s ever given to aid your pre-trial preparations. And if Jimmy Buffett’s recommendation isn’t enough to get you out of the office, here are three more reasons why you’ll want to visit the scene of the crime:

1. You’ll present better opening statements. If I asked you to tell me what one of the courtrooms in your courthouse looks like, you could probably describe it in great detail, couldn’t you? That’s because, in your mind’s eye, you can “see” where the jury box is located, the height of the judge’s bench, and the distance between the witness box and the attorney’s tables. When I ask you to describe the courtroom, you simply access your visual memory and tell me what you “see.”

In much the same way, going to the scene helps you “see” how the events unfolded, which lets you bring the action to life during your opening statement. Instead of cobbling together random details from witness statements and various reports, you simply transfer the images from your mind’s eye into your jurors’ minds.

2. You’ll extract more detail during direct examination. Possibly the greatest benefit of visiting the scene is that you’ll start pulling far more detail out of your witnesses during direct examination. For example, compare these two direct examinations from Driving Under the Influence (DUI) cases. The first is by a prosecutor who only read the police reports and talked with his witnesses:

Q: Officer, when you turned on your lights and sirens, how close were you to the defendant’s car?

A: About 2 car lengths behind him.

Q: Where were you when you turned on your lights and sirens?

A: On Main St., just past the Dunkin’ Donuts.

Q: Once you turned on your lights and sirens, did he stop his car?

A: No, he didn’t stop for about 250 yards, until he reached Miller’s Pub.

Q: Were there any other safe places to stop his car?

A: There were several, but he didn’t stop in any of them.

That’s not too bad, right? You know that the driver didn’t stop his car, even though the police officer’s lights were flashing and his sirens were wailing. You also know that he passed by several other safe places to stop his car. At this point, you might even be thinking that the reason why he didn’t stop the car was alcohol-related. But look at how much better the direct examination becomes if the prosecutor actually has first hand knowledge of how the scene looks:

Q: Officer, when you turned on your lights and sirens, how close were you to the defendant’s car?

A: About 2 car lengths behind him.

Q: Where were you when you turned on your lights and sirens?

A: On Main St., just past the Dunkin’ Donuts.

Q: Just past the Dunkin’ Donuts is a Waffle House, right? Is that a safe, well lit, place to stop?

A: Yes.

Q: Once you turned on your lights and sirens, did he stop in the Waffle House parking lot?

A: No.

Q: What about the Applebee’s after that? Is that a safe, well lit, place to stop?

A: Yes.

Q: Did he stop in the Applebee’s parking lot?

A: No, he didn’t.

Q: How about Bennigan’s? Is that a safe, well lit, place to stop?

A: Yes.

Q: Did he stop in the Bennigan’s parking lot?

A: No, he didn’t stop there, either.

Q: Tell us about McDonald’s. Is that a safe, well lit, place to stop?

A: Yes.

Q: Did he pull over into the McDonald’s parking lot?

A: No, he kept driving.

Q: Bob’s Big Boy? Is that a safe, well lit, place to stop?

A: Yes.

Q: Did he stop in the Bob’s Big Boy parking lot?

A: No, he drove right past it.

Q: The Hess gas station, is that a safe, well lit, place to stop?

A: Yes.

Q: Did he stop in the Hess gas station?

A: No, he didn’t.

Q: Officer, where did the defendant finally stop his car?

A: About 250 yards after I first turned on my lights and sirens, at Miller’s Pub.

By visiting the scene, you can ask more intelligent questions and elicit more details from your witnesses. This lets you fill in all of the “holes” in their testimony and present a complete picture for the jurors.

3. Your cross-examination will be more lethal. Your witnesses and investigators don’t know as much about the case as you do, so they can easily overlook cross-examination insights which would seem obvious to you. When you visit the scene (rather than relying on second hand information) you will uncover clues that others wouldn’t even recognize as being important. Those clues may be the winning edge you need to poke holes in opposing witness’s testimony.

• “You said you were sitting in the Starbucks at 4:25 PM, looked out the window, and saw my client, Money Richpockets, run a red light and hit your best friend, Harvey Deadbeat, isn’t that right?”
• “That day was a clear day, wasn’t it?”
• “Not a cloud in the sky, right?”
• “The sun was shining brightly from the west.”
• “Earlier, you said that you had a clear view of the crash, because the sun was directly behind you as you looked out the window, right?”
• “The Morgan St. glass shop is directly across the street from the Starbucks, isn’t it?”
• “The glass shop has a 20′ x 10′ mirror in the front of the store, doesn’t it?”
• “And between 3:50 PM and 4:45 PM, the sun shines directly onto that mirrored window, doesn’t it?”
• “In fact, the light reflects directly into the Starbucks, blinding the barristas.”
• “They close the front blinds as soon as the light hits the espresso machines, so that no one in the store gets blinded, don’t they?”

Visiting the scene of the crime can make the difference between whether the jury “sees” what happened to your client or not. Your pre-trial preparation won’t be complete until you’ve visited the scene of the crime, so block off some time in your calendar and go. You’ll be glad you did, and so will your client!

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Why are most PowerPoint presentations so dreadful? When was the last time you saw a presentation that was actually enhanced by PowerPoint? The reason PowerPoint decimates the effectiveness of most presentations is because the presenters don’t understand how or why to use it. But, when you need to illustrate a point in the courtroom, PowerPoint can be a tremendous addition to your trial skills toolbox. This article will give you tips for improving your presentations, both inside and outside the courtroom.

The purpose of PowerPoint. PowerPoint is a supplement to, not a substitute for, your courtroom presentation. PowerPoint allows you to add visual imagery to your arguments, but slides aren’t the reason why the jurors came to your presentation. If PowerPoint presentations were that effective, you could stay home and just email the jurors a copy of your slides. The substance of the message comes from the presenter, not the slides. Once you accept this philosophy, your PowerPoint presentations will dramatically improve.

Guidelines for creating slides. Too many PowerPoint presentations become garbled and confusing because the presenter tries to cram too many ideas onto a single slide or uses every tool available from the Custom Animations toolbox. Follow these guidelines to minimize confusion and enhance understanding in your next PowerPoint presentation.