Moments before you’re about to begin a one-day jury trial, you suddenly realize that you don’t have anything to write with. Fortunately for you, I’ve got some spare pens that I’m happy to give you. You have two choices:

 

Choice #1: My gold-plated Mont Blanc Bohème Doué, or
$500 gold-plated Mont Blanc Bohème Doué

Choice #2: Two of my 99¢ Pilot P-500 pens (one red, one blue)

(2) 99¢ Pilot P-500 pens (one red, one blue)

Whichever one you choose is yours to keep, no strings attached. Which would you prefer?

“Wait a second,” you’re probably thinking, “if it’s mine to keep, I’d obviously prefer to take the expensive pen. But something tells me this is a trick… If I pick the expensive pen, the jurors will probably think that I’m pretentious or that my client is loaded, right? I guess I’d better pick the cheap pens.”

Before you make your final choice, let me assure you that the jurors will never see what you’re writing with, so don’t let that affect your decision. Do you still want the cheap pens?

“Since you put it that way,” you say, “there really isn’t any choice, is there? I’ll take the gold-plated pen.”

You sure?

“Yes.”

Is that your final answer?

“Yes, I definitely want that Mont Blanc.”

What a terrible decision! You’ve just made a tragic mistake! Your case is doomed!!!

“But I thought you said this wasn’t a trick! If the jurors can’t see my pen, shouldn’t I pick the more expensive pen?!?”

Not in this case. Mont Blanc writing instruments (notice I didn’t say “pen” — anything more than fifty bucks gets to be called a “writing instrument”) are great for autographs and signing settlement agreements, but they’re not nearly as effective for winning trials as those two 99¢ pens.

Here’s why two cheap pens are better than one expensive “writing instrument.” Using two different colored pens during trial dramatically improves the quality of your notes. For example, let’s examine the notes you might write down about a potential juror during jury selection in a Driving Under the Influence case:

JUROR #14

  • Assistant produce manager – Publix grocery
  • 2 children – ages 2, 4
  • Lived in Orange county 28 years
  • “People should be responsible for their actions”
  • Served on civil jury 3 years ago (slip & fall)
  • Knows several police officers, but not close friends
  • Worked w/ defense witness Jones – “good guy”
  • Co-worker’s father killed by drunk driver
  • Considers himself a “social drinker”
  • Called 911 last year to report a suspected DUI
    (that driver was “all over the road”)
  • Thinks DUI laws are “a little harsh”
  • Wants to hear the defendant testify, but will follow judge’s instructions to presume defendant innocent
  • Can’t think of any reason why an innocent person wouldn’t testify in his own defense

Your notes include actual quotations from the potential juror, as well random comments or feelings about his responses. Both positive and negative information about the potential juror is interspersed throughout the notes. Fairly typical, right?

With the judge staring down at you from the bench, it can often feel like you’re being forced to make a split-second decision whether or not to keep a potential juror on your panel. When it comes time to make your final decision whether or not to keep him, you’ll refer back to these notes before asking yourself, “Is he a good juror for us?” Glancing at these notes in the heat of the moment, you’ll probably only see a jumble of hastily written notes scribbled across the page. If you’re not careful, you could overlook important information because it gets lost in the mess on the page.

That’s why you should use two pens during trial. Typically, I use a black or blue pen to write down any positive information, and a red pen to write down any negative information. By using two different colored pens to capture your notes, you’ll make it easy to immediately locate positive or negative information. Let’s pretend for a moment that you’re the criminal defense attorney in the D.U.I. case. Check out this example below to see how quickly and easily you can identify the negative aspects of this potential juror’s answers:

JUROR #14

  • Assistant produce manager – Publix grocery
  • 2 children – ages 2, 4
  • Lived in Orange county 28 years
  • “People should be responsible for their actions”
  • Served on civil jury 3 years ago (slip & fall)
  • Knows several police officers, but not close friends
  • Worked w/ defense witness Jones – “good guy”
  • Co-worker’s father killed by drunk driver
  • Considers himself a “social drinker”
  • Called 911 last year to report a suspected DUI
    (that driver was “all over the road”)
  • Thinks DUI laws are “a little harsh”
  • Wants to hear the defendant testify, but will follow judge’s instructions to presume defendant innocent
  • Can’t think of any reason why an innocent person wouldn’t testify in his own defense

[I bolded the red portions in case you decide to print out this post]

Notice how much easier it is to identify the negative parts? At a glance, you see that this juror probably won’t be a good choice for your case. If it looks like someone bled all over the page, you probably don’t want that juror! You can use a similar system for taking notes during your opponent’s opening statement, the examination of witnesses, etc.

Don’t go crazy trying to use multi-colored pens (“Let’s see, purple related to causation issues, green was for damages, orange was for identification, yellow was for venue…”) Keep things simple and limit yourself to two different colors. When you start using two pens during trial, you’ll guarantee that your case strengths and weaknesses leap off the page.

Tell us what you think

9 Comments

  1. 1-27-2008

    While the idea of using two colors made sense as soon as you said it, the example that followed really hammered it in. Nice advice.

  2. 1-27-2008

    Good idea, although instead of switching between two pens I might just use the one, cursive for the positive points and printing for the negative. Hey, I’m just in a contrary mood today!

  3. 1-28-2008

    You could do this by underlining the negative and going by the number of underlined paragraphs.

  4. 1-29-2008

    I use a veritable rainbow of colors when taking notes. Sometimes it gets a bit confusing though. I highly recommend using highlighters too.

  5. 1-29-2008

    Really nice article. I liked the drama created by the gold pen, normal pen dichotomy.

  6. 1-29-2008

    Great! Now how do you want to send me that free Mont Blanc?

  7. 2-9-2008

    neat idea, but switching between two pens on the fly is beyond me. I put a “+” next to positive points and a “-” next to the negatives. sometimes “++” or “+++” for especially strong positives and “–” or “—” for strong negatives it seems to provide info at a glance pretty efficiently.

  8. 2-20-2008

    I’ve got plenty of different colored pens. They all write in black.

  9. 5-5-2009

    What is this “pen” device you speak of? If I took voir dire notes longhand, I’d never be able to read them. I use a Macbook with Text Expander.

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