Top 5 Trial Lessons
Illustration by Hanna Barczyk
Whenever I meet fresh law school graduates and burgeoning junior associates who dream of being trial lawyers, I can usually be sure to get asked the following question:
“What’s the secret to being a great trial attorney?”
The implication being that there is one secret weapon that all great trial attorneys share. There isn’t. But there are some common attributes. Experience is one of them. Great trial lawyers hone their skills through a series of trial and error (pun intended) experiences over many years. The other is to be authentic. Many young lawyers make the mistake of watching a seasoned lawyer they admire and then try to emulate a style that isn’t authentic to them. There isn’t a style more powerful or effective than the one that fits your personality. Jurors can spot an act a mile away. The team at Bozorgi Law share decades of trial experience, each with their own set of insights and learnings. While some are unique to each person’s background and style, some are universal. Here are the top 5 that every attorney should always keep in mind:
1. Prepare. Prepare. Prepare.
Anyone who tells you that you can jump into a trial without being prepared doesn’t know what they are doing. There is nothing more important than preparation for a trial, no matter how short or how long. You need to prepare your theme, your voir dire questions, your opening, your directs and cross examinations and even your closing. It is important to develop a roadmap for the trial through your preparation, even if there are tweaks along the way, so that you go into the process calm and ready for whatever surprises come your way. If you are scrambling to handle even the basics, you can’t even begin to deal with the surprises. I have often thought of a trial as a three-ring circus. One ring involves listening to the facts that are being elicited in real time, so you are prepared to use them or respond to them during each phase of the trial, the second ring is to be listening for objections, and the third ring involves preserving your appellate record. You must keep your eyes and ears on these three rings simultaneously. If you aren’t prepared and are disorganized, this is impossible to do.
2. Theory of Case – Develop a Strong Narrative that you present in Opening and Continue through to Closing
One of the most important tools you need to effectively try your case is to develop your theory of the case. This is your narrative and you should stay true to your narrative throughout the trial. Your opening and closing are the bookends to this theory. Let me emphasize that you should never give up your chance to do an opening right at the outset of the case. If you do, it is a lost opportunity. Whoever came up with that not so cute idea of waiving your opening until after the Government’s case hasn’t tried a lot of cases. If you can paint a picture of your defense in such detail in opening and that picture remains intact throughout the trial, you can literally win your case after opening. I have always believed that you can win your case after a powerful voir dire and Opening.
3. Take your nose out of your notes and Listen
One of the biggest mistakes that young lawyers make when conducting a cross examination is to get wedded to their notes. They don’t listen and they miss opportunities. There are so many answers that can be exploited to expose a witness’s motive, bias, or weaknesses. But lawyers don’t capitalize on this because they are thinking of their next line of questions and not listening. I will prepare a cross in gross detail and then synthesize it down again and again until it is in the smallest possible facts. My law partners previous partner used to go to the podium with a sticky note of five points. But this was after hours and hours of preparation to synthesize the cross that was envisioned into the smallest possible denominator.
4. Benefits of an Affirmative Cross - Understanding the difference b/w the Affirmative Cross and tearing a witness apart
It is critical to understand the difference between an affirmative cross and tearing a witness’s heart out. It may seem counterintuitive, but you can elicit an affirmative cross from the same witness that you later tear apart. It is a logical question to ask how a witness can be both a truth-teller and liar, but it is not as contradictory as you think when you take a closer look. When you do an affirmative cross, you can tell the story of your theory of defense through the witness. You should be bringing out points that corroborate your narrative. Remember the Government’s witnesses typically are in the room and have a firsthand knowledge of what happened. They likely are perfectly situated to confirm facts that can serve as the building blocks to your theory. These are things that occurred well in advance of the witness getting into the cross hairs of the Government. And there would also be plenty of arguments as to why the witness is lying after being confronted by an agent or being threatened with or even charged by the Government.
My law partner relayed the cross examination of a bank vice president who completely corroborated the client’s explanation of how something happened. And then the cross took the witness through why he had plead guilty – exploring the trauma, the burden, and the fear of what he was facing along with his concern that the Government didn’t want to hear an alternative theory of what occurred. The witness got to the point of sobbing on the stand. That is the combination of getting everything you need but also exposing the weakness in the testimony. I crossed a cooperating witness once and exposed his disrespect and distrust for my client. Something that might have seemed innocuous to the truth, but which corroborated my theory that the witness would have never told my client what was going on. After that, I took him through his plea and what he was facing for his own criminal conduct and what he was expecting to gain through his testimony. These two examples are perfect examples of how affirmative cross examination and negative cross examination can exist together and are not mutually exclusive.
5. Engage your Jury – they aren’t just observers
Long ago when I attended a two-week trial skills program through National Criminal Defense College (NCDC), I learned invaluable lessons from a jury consultant. She taught me how to move my podium in the direction of the jury and pose questions at them rather than the witness. It might seem forced or odd but there is a way to balance this, so the jurors feel that they are answering the questions. This occurs particularly in a cross where you are exposing the weakness in a witness’s version or the blatant lies of a witness. In that way, the witness becomes irrelevant and the juror’s feelings about what you are raising is much more important. She taught me the way to engage the jury in the process during the trial. Jurors are not just silent observers in the process. You must do everything you can to draw them into the process with you, so they feel they acting more as co-counsel rather than mere passive observers.