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Basic Jury Trial Tips

There are fundaments which are essential for trial lawyers. These fundamentals will apply over and over again in just about any jury trial context. A majority of these tips are equally applicable in the bench trial context but for the sake of this article I focus on those applicable to the jury trial context. In order for you to gain a true expertise in this context you need to do more than just read about these tips. That will be insufficient for you to then be capable of employing them all in trial. There are too many other things to remember in trial as is. In order to master these tips you need to practice them in everyday life. For example, a big mistake in jury trial advocacy, is the lawyer's use of legalese in front of the jurors. If you only attempt to avoid using legalese when you are before a jury, meanwhile continuing to use legalese in the remainder of your daily life, you will not be sufficiently practiced to pull it off in trial. Thus you need to get in the habit of avoiding legalese in all contexts of life. Don't use legalese at home, don't use it in the office, and don't even use it in a bench trial. In order for you to master these trial techniques you need to make your trial techniques second nature. To do that you have to make your techniques habit.

One of the first and most basic concepts to remember is that more is often less in trial. Trials, by their very nature, are a complex and somewhat confusing method for delivering information to the juror. Thus it is best to error on the side of including too little information rather than too much. Your jurors will appreciate you for this as they can only retain so much information. Thus don't give the jurors useless information. Give the jurors information which will be useful for them to find in favor of your client. On this point, only repeat information which you want to really sink into the jurors' minds. Repetition can be quite valuable, but only if we use it sparingly. When you repeat information be sure to repeat that information using short clear sentences. Once you have made the initial point clear you can repeat the point again and again by using an abbreviated sentence which serves to remind the jurors of your important point. A good tool for employing repetition is the looping technique. This is where you take valuable information which a witness gives you on direct or cross examination and then you repeat the witnesses same word or phrase into your following questions. For instance, a juror might say that "the road was very icy that night". You then might say in your next question, "how fast were you driving on that icy road"? In this way you subtly repeat a point you want to make upon your jurors, namely that "the road is icy". However, if you repeat other useless details which have no significance you water down the points you wish to emphasize. So only use provide the jurors with important information and only repeat particularly important facts.

One of the most difficult things many new lawyers have to overcome is their instinct to read from notes and or to make speeches to the jurors. As a fundamental concept, we want to be as personable as we can with our jurors. Jurors will already mistrust us because of our lawyerly status. We need counter this by creating trust in our jurors. To do this we need to speak to our jurors. When we speak to our jurors we need to do so casually, as if they were sitting right there in your living room. This is why some of the best trial lawyers in the country are southerners. Southerners often carry with them a very hospitable nature. Look at lawyers like Jerry Spence, Don Keenan, and David Dodd. One commonality amongst these great trial lawyers is their ability to be exceptionally personable and likeable in the eyes of the jury. One of the best trial lawyers I know, Bob Vannah, is an expert at this. If you watch him in trial, he presents himself as the caring grandfather type. You can't help but like the guy because of it. These lawyers speak in common sense terms to their jurors and the jurors trust them because of it. Speak to the jurors as f they are close friends over for dinner.

On this same point, avoid using notes. Although it can be very difficult to get away from notes, you must do so. As soon as begin reading your notes you become scripted. When you are scripted you are not seen as authentic and as a result you are mistrusted. The best way I find to overcome this is to first write out a complete outline of what I will be presenting at trial. Thus if I am presenting a cross examination I will write out the entire cross examination. After I complete the outline, I will then continuously go over it practicing it and tweaking it. As I go over the outline again and again I continuously pair down the outline to eliminate more and more superfluous language. At the end of this pairing process what were initially complete sentences are simply one, two, or three word phrases. In this way you have a skeleton outline to look at for reference if you need it. The skeleton outline is good because it jogs your outline without requiring you to do any reading. Thus you only need to glance at your notes if you get lost. Remember that you should never talk to a witness or the jurors while looking at your notes. On the same point, don't ever read your notes while a witness is talking. Wait until you are completely done reviewing your notes, then look up towards your witness or the jurors and then begin talking. It may seem like a long awkward pause to you, while you do so, but in reality it won't be interpreted this way. Moreover, a pause is often very useful. The pause gives the jurors a minute to digest whatever information they have just consumed. It also emphasizes the upcoming point. The pause is an exceptionally powerful tool for strong advocates.

When you are in trial be sure to make eye contact with all of your jurors and do so frequently. Making eye contact with jurors allows you to develop a relationship with those jurors. You want your jurors to trust and believe in you. Thus when you talk to your jurors be sure you are making eye contact with them. Don't hold eye contact for too long so as to make any juror feel uncomfortable but hold it long enough, perhaps 2 seconds, before moving your gaze on to the next juror. Beyond opening and closing arguments make significant eye contact with your jurors on cross examination. I believe that cross examination is perhaps the most valuable tool of a good advocate. Thus you don't want your jurors dozing off when you conduct your cross examination. To get the jurors involved in the cross examination process look at your jurors as you ask the witness questions. This makes the jurors feel as though they are part of the cross examination process and that they are on your side. Of course you need to be making eye contact with your hostile witness much of the time as well. When you conduct your direct examination you can also look at the jurors when you ask your questions. However, I think it best to stand away from the jurors, not between the jurors and the witness on direct examination. You want the juror's attention primarily upon your witness during direct examination and not on you.

Another significant handicap of inexperienced trial lawyers is the inability to create good movement. In trial we need to be moving. Not only with our bodies but with our hands too. When we move we are dynamic and when we are dynamic we are persuasive and powerful. That being said, we need to always and only move with purpose. Thus don't move while you are speaking. Better to make a point, walk to a new place in the courtroom, and then make a new point. This change of placement creates interest in what you are saying and signifies a change in topics for the jurors. Do not begin talking again until you are firmly in a new position in the courtroom. Always expose your body to your jurors. Don't ever hide behind counsel table or a lectern. A lectern is a good place to keep your skeletal notes but beyond that it is good for nothing. Don't be afraid to leave all of your impeaching material on your counsel table while conducting cross examination. While impeaching a witness you can make a powerful point by walking all the way back to your counsel table to retrieve your impeaching document. It makes the impeachment process more dramatic and painful for the witness. Use your arms and hands deliberately while you talk. If you are describing distance use your hands. If you are describing a direction, use your hands. Use your hands in any way that you can to support what you are saying. Communication is more body language than oral language. Thus use your body deliberately to communicate. When you are not moving be sure to stand erect and don't slouch. Don't lean on anything. You are a powerful human being and you should be comfortable where you stand. If you aren't using your hands then simply put your hands to the side of your body. Do not clasp your hands in front or behind you. Do not put them in your pockets as this signifies to the jurors that you have something to hide. If this makes you uncomfortable then put your arms straight down and lightly touch your thumb to your index finger. No one will notice that you are doing this but this technique gives you something to do with your hands so that you do not feel awkward.

The way you dress is important. Remember that we need to communicate to the jurors that we are regular people, to be trusted. Thus error on the side of dressing down. What I mean by that is that you should of course be groomed, clean, and organized but do not look arrogant or pompous. Do not wear gold jewelry. Do not wear overly expensive suits or belts or shoes. Dress as though you are successful but not as though are arrogant. Keep your suit jacket unbuttoned during a jury trial. I've heard some advocacy teachers say that you should wear beige, brown, or green in trial. That you should stay away from black or dark blue. There is probably truth to this.

With regard to how you groom yourself, you should stay away from facial hair. Studies show that jurors perceive men with facial hair as being less trust worthy than those without facial hair. Thus you should probably error on the side of having a solid shave before trial. You should also stay away from any overly expensive hair-cuts, for the same reasoning I mentioned above regarding expensive jewelry or suits.

Take careful consideration of the words and phrases you use in trial. Avoid pronouns at all cost. Pronouns only confuse what is already an often confusing process. Thus don't use the words him or her but rather use the persons proper name for identification. Don't ever refer to the plaintiff as "my client". This dehumanizes the plaintiff. You want the jurors to empathize with your client. Thus refer to your client by his proper name. Coach your witnesses on the point of avoiding pro nouns as well, while preparing them for direct examination. Many individuals innately use pronouns in their regular speech. You will need to practice with these folks so that they can avoid this bad habit during their direct examination process. As stated above, avoid any and all legal or complex jargon or phraseology. Error on the side of simple words as opposed to complex words. You want every single juror to understand every single word that you say. Avoid using the passive voice unless you are trying to deemphasize an action for a good reason. Thus use the active voice. Practice using the active voice in everyday life. "The boy kicked the ball" verse "the ball was kicked by the boy".

Lastly, get to know your client. Spend significant time with your client. Spend this time with your client outside of the office. Go to your client's home and spend hours if not days with your client there. Get to know your client's family and friends. Once you become friends with your client your empathy with your client will become apparent to your jurors in trial. Jurors are receptive to this. If the jurors like and believe in you and they see that you like and believe in your client, they will in return find a verdict in favor of your client.

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