Trial Law

Course Title: Evidence
Professor: Charles Nesson

Date: Winter 2007
Trial Presentation
Lecture Notes
Function of Trial Lawyer:
The trial process often is described as a search for the truth. This really is not a correct
statement. A trial technically is one attorney or law firm presenting its clients perception of the
truth, a second attorney or law firm presenting its clients perception of the truth, and finally a
group of individuals (a ury! deciding its collective perception of the truth. "f course, its the
urys perception of the truth that is of importance. Thus, its a trial lawyers function and duty to
guide a urys perception of the truth in a manner consistent with the best interest of the lawyers
client.
#rocessing of $nformation:
%ost people, especially as they continue to age, do not uncritically absorb information. They
rarely possess an open mind that is completely receptive to new ideas. $nstead, they process new
information by how consistent it is with their preconceived ideas of how life wor&s. These
beliefs and views of how life wor&s are formed throughout an individuals life based on personal
e'periences and observations. "nce developed, these attitudes become fi'ed and change very
slowly, if at all. A common e'ample of these fi'ed ideas are opinions individuals form in regard
to gender and race stereotypes. Thomas A. %auet, Trial Techniques pg. 15 ((
th
ed., Aspen
#ublishers, )**)!.
+ased on fi'ed opinions, generali,ations and stereotypes, a person feels -ualified to reach -uic&
decisions on most issues with little direct evidence that the fi'ed opinions apply to the specific
issues before them. .urors are no different. /uring trial, .urors rapidly construct stories in their
minds of what probably happened in the case. They will do this long before receiving ade-uate
evidence to reach such a conclusion. "nce urors form their initial opinions, they then
consciously and subconsciously use their life e'periences to accept, reect and distort the
evidence presented to them0 and even supply missing information to create a complete, plausible
story. The more circumstantial the evidence in the case, and the more familiar the urors are with
the subect matter of the trial, the more li&ely they will consciously and subconsciously interect
their preconceived beliefs. %auet, pg. 12.
3hat ma&es the situation worse is that while urors try to pay close attention during trial, they
easily are distracted and have difficulty concentrating for e'tended periods of time. This
especially is true when the information is difficult to understand or process, or simply is of little
interest to them. %auet, pg. )*. Additionally, urors are bombarded with information during trial
through testimony, e'hibits, and arguments. They -uic&ly become overloaded with information
and subconsciously have no choice but to employ simplification strategies to cope with the
Harvard Law School, Evidence Martin Levin
Trial Presentation, Page 1
Date: Winter 2007
avalanche of information, since sensory overload is a stressful situation that people try to avoid.
%auet, pg. )1. This an'iety and need for -uic& answers cause them to rely upon their
preconceived opinions, life e'periences and observations.
Finally, and importantly, the average person forgets most of what is communicated to them
within a few hours, and after two or three days retains very little. %auet, pg. )*. This certainly
is true the less familiar they are with the issues, the more complicated the issues, and the more
inconsistent the stated conclusion with their preconceived opinions. The bottom line is that
during ury deliberation, the urors will remember a few broad issues, perceptions (impressions!
of the answers to the issues, and memorable words and phrases. %auet, pg. )1.
For all the above reasons, the successful trial lawyer is the lawyer who is able to create the broad
issues, perceptions, memorable words and phrases in a manner that is fast4paced, direct, simple,
and, most importantly, consistent with the urors life e'periences and observations. This is what
&nowledgeable trial lawyers call the 5theme6 of the case.
The /evelopment of a Theme:
%ost trial attorneys are bound and determined to control, direct, and fashion almost every aspect
of their lives. Their desire to be in control sometimes pushes them toward controlling the facts of
their case in the way they would prefer the facts to be rather than the way they really find them.
They are slow to catch onto the idea that: 5$f it doesnt fit, then dont force it.6 The better trial
lawyers have learned that you engineer the themes of your case around the facts that you have
been dealt7warts and all. As a trial lawyer, its not your role to ma&e all the barnacles and bad
facts that you inherited disappear. The best trial lawyers are able to be honest with themselves in
regard to the facts they have on their side.
The first and most important step to developing a winning theme is to be thoroughly prepared for
trial. There absolutely is no e'ception to this rule. 8ounsel should have analy,ed the strengths
and wea&nesses of his case (from an obective standpoint!, and should have analy,ed the
adversarys strengths and wea&nesses. 8ounsel must not approach trial with blind confidence0 for
if he does, he will tend to belittle the oppositions strongest points, and fail to compensate for the
wea&nesses in his own case.
+efore developing a final theme, a trial lawyer must be able to answer the following -uestions:
(1! 3ho is the opposing counsel0 and what approach has he ta&en in the past9 ()! /oes opposing
counsel come across well9 (:! 3hat &ind of person is the plaintiff, and what &ind of impression
will he ma&e9 (;! 3ho are plaintiffs witnesses, and are they believable9 (2! 3ho is the
opposing party, and what &ind of impression will he ma&e9 ((! 3ho are the opposing partys
Date: Winter 2007
witnesses, and are they believable9 and (<! 3hat are your strongest and wea&est points, and what
are the strongest and wea&est points of your opposition9
After answering the above -uestions, the trial lawyer is in a position to develop a theme (a
winning strategy! for the case. To do this, trial counsel must find a reason why the ury would
want to return a verdict in favor of her client. For e'ample, such a reason could be that the client
is a helpless victim, a stoic fighter, a larger4than4life father, a single4mindedly devoted, loving
mother, or even an unli&able curmudgeon who is entitled to protection by the law no matter how
unli&able he is. "f course, an effective theme could be based on the opposing sides horrendous
conduct, attitude, and greed. 3hatever theme a trial lawyer chooses, he must be sure that its
consistent with the urors life e'periences, is supported by the evidence and the law0 and that if
the ury believes the theme, then the ury will rule in favor of the client.
As an e'ample of developing a theme, suppose you represent a plaintiff who ma&es a horrible
witness and has contradicted himself in three different depositions. =e never loo&s at the person
with whom he is spea&ing, and he has absolutely no confidence in himself. %oreover, no matter
how he dresses, he gives the impression of being slovenly. A great trial lawyer must recogni,e
and accept these facts, and attempt to wor& them into an effective theme. $n this situation, and if
the facts support it, counsel could tell the ury about the difficulties the plaintiff had growing up0
such as his inability to get dates because of his appearance. 8ounsel could tell about the
plaintiffs inability to get a good ob because he was not very intelligent, and about all the times
he was &ic&ed around when he was growing up. 8ounsel could state to the ury something
similar to the following:
Loo&ing at my client sitting here today, its easy to tell that he is scared to death. $n
fact, he is scared of you, the ury, he is scared of me, his own counsel, and he is most
assuredly scared of %r. .ones, counsel for the defense. $n fact, my client has been so
scared throughout the preparation of this trial and the actual trial, that he really
doesnt &now the true facts. =e has given at least three different versions of what
happened, and would li&ely give a fourth version if he were as&ed about it on the
witness stand. =e simply will say anything that he believes people want him to say.
=e will agree with whatever someone as&s or tells him. For this reason, $ am not
going to put him on the stand and -uestion him about liability. $f the defense wishes
to humiliate him, then they can call him to the stand. Fortunately in this case, we have
many eyewitnesses who will tell you e'actly what happened to my client. They will
be the obective and disinterested voice for my client. %y client does not have the
intelligence or confidence to be his own voice. Fortunately, we have witnesses to this
incident who can be his voice.
Date: Winter 2007
3hatever theme trial counsel chooses to present, it must be a theme that 5steals the defendants
thunder.6 $n other words, it must be a theme that incorporates all the worst evidence against your
client. 8ounsel should &eep in mind that no matter how bad the situation is, its better for counsel
to utili,e it than for the other side to do so. For e'ample, suppose you represent the plaintiff in a
case in which two police officers and three independent eyewitness will testify that the plaintiff
was e'tremely into'icated at one ocloc& in the afternoon, and that he began staggering across a
maor highway when he was struc& by defendants automobile. $f the facts support it, then trial
counsel could present the following theme:
The plaintiff in this case, +ill .ones, is the type of person who has been wor&ing two
obs every day since his graduation from high school in order to ta&e care of his wife
and two children. "n the evening before this accident, +ill did something une'pected:
he came home early that evening from wor& to be with his wife and children. To
+ills surprise, his children were staying with the neighbor, and his wife was in bed
with his best friend.
$nstead of facing this problem, +ill did something he had never done: he went to a
local bar and began drin&ing, and he continued to drin& throughout the night and into
the ne't afternoon. 3hen +ill left the bar at one ocloc& the ne't afternoon, +ill was
as drun& as a man could possibly be and still be able to wal&. =e then started to cross
a si'4lane highway in order to get home. +ill swayed and staggered across three lanes
of traffic before being hit by the defendants vehicle.
Two police officers will say +ills blood4alcohol level was as high as they have ever
seen. Three eyewitnesses are going to say that they were driving on the highway and
could clearly see that +ill had no way to protect himself because of his drun&enness,
but that they had no problem avoiding him. $n fact, only one person on the highway
that day could not stop from hitting +ill, and that is the defendant, >am >mith. The
simple issue in this case is whether this horribly inured man should have been seen
by %r. >mith in time for him to have avoided the collision. 3e believe %r. >mith was
not paying attention to his driving at the time of the collision, and we will present to
you the unfortunate reality that instead of %r. >mith concentrating on his driving, he
was tal&ing to his girlfriend on his handheld cell phone about their upcoming
vacation.
The above factual scenario first appeared to be unwinable. Yet the above theme puts the defense
counsel in the position of having to defend, rather than attack. It would be ridiculous for defense
counsel to stand up and announce that the plaintiff was drunk, because plaintiffs counsel has
already admitted that he was as drunk as anybody could possibly be. This theme effectively
steals the defendants thunder; and in fact, has recreated the issue of the case.
Date: Winter 2007
Real World Experience and Perception
.uror demographics (such as age, race, education, income! provide broad and statistically
significant information about how an average uror with the same demographics might thin& and
rule. =owever, demographic information provides little insight in regard to a specific urors
thought process. $nstead, individual life e'perience is by far the most compelling feature of what
will drive an individual uror to rule for one side or the other.
An individuals life experiences create for the person stereotypes and perceptions that are formed
over a long period of time and change very slowly. #eople try to interpret and analy,e virtually
all events in a manner consistent with their e'periences and perceptions, and tend to discard
inconsistent information or engage in creative analysis to support their fi'ed positions. .urors
even create or envision facts not introduced into evidence if re-uired to support their positions.
The truth is that we all have a need to create generali,ations and stereotypes because they help us
function in a chaotic and unpredictable world. ?irtually all persons see& some form of structure
and certainty to cope with lifes unpredictable nature. The same is true of urors. Throughout
the trial, urors try to put themselves in the position of the plaintiff and defendant and analy,e
how they would have responded under similar circumstances. Their perceived response to the
circumstances becomes their fi'ed opinions as to what occurred, even if their fi'ed opinions are
not reality for the specific facts of the case.
For the above reasons, its crucial for a trial lawyer to thin& of every conceivable 5common
sense6 and 5real life e'perience6 the urors li&ely will analy,e on their own, even if not
introduced into evidence. $f you &now the urors will thin& about an issue, whether presented
during trial or not, then its best to try to find a way to address it during the trial, and incorporate
it as part of your theme. @o matter how bad the issue is for your side, its always best for you to
address it before the opposing side or ury addresses it.
@o matter how solid your evidence, its difficult to convince a group of people of a position that
is inconsistent with their real life events. This especially is true over the relatively short period
of a few days or wee& trial. %ost opinions are developed and fi'ed over a long period of time.
$t, thus, ta&es a long period of time, and e'posure to conflicting e'periences, to understand and
accept contrary opinions. For e'ample, most people have firm believes on abortion and the
death penalty. These opinions are developed through multiple life inputs that influence each
individuals view of the sanctity of life and when it first begins. $t would be virtually impossible
for one person to convince another person in the course of a few discussions that the others
beliefs are wrong on these issues. Aven if you were able to do this, the persons new belief
would be e'tremely transient to the point that he or she easily could be persuaded bac& to his
original position. Thus, this person will not ma&e a strong uror for your position during ury
deliberations.
>imilarly, and possibly more importantly, perception is reality. >pecifically, ones perception of
the truth is the 5truth,6 despite its potential fallacy. A great trial lawyer will analy,e and consider
Date: Winter 2007
the e'periences and perceptions of each uror (especially the potential leaders of the ury!, and
tailor his trial presentation around these e'periences and perceptions.
As an e'ample, most Americans have a perception that politicians favor the needs and desires of
those who contribute most to their campaigns, and have little interest in protecting the desires
and needs of the populace, especially when the populace position is contrary to the positions of
their contributors. $ts irrelevant whether this perception is true or false, as you will not convince
a ury that its false during the course of one trial. Bou might convince one or two urors, but
they will not be the urors with firm perceptions developed over a lifetime of e'periences. The
urors with more firm opinions (and li&ely the leaders on the ury! will not be convinced.
Thus, a lawyer representing a politician accused of ta&ing bribes would be ma&ing a mista&e to
try to convince the ury that the defendant politician always ignored the desires of his maor
contributors, and that his only goal was loo&ing out for the best interest of his constituents.
$nstead, the trial lawyer should ac&nowledge the truth of the urys perception, and the lawyer
then should create a winning theme around this perception. $ts this type of theme that provides
the lawyer credibility.
For e'ample, in the case of a politician accused of ta&ing bribes, a potential winning theme is:
5#olitics is corrupt, and most politicians are corrupt, but that does not mean that all politicians, at
all times, are corrupt.6 The following is an e'ample:
>am .ones has been a member of the state of Florida =ouse of Cepresentatives for fifteen
years. =e has been elected seven times to this position. =e has served in virtually every
aspect of government. And, unfortunately, he is going to tell you that the state of politics
in this country is in very poor health. 3hether you are a /emocrat or a Cepublican, its
all the same. Bou need to raise a lot of money to run a campaign because of the high
costs of advertisement and travel. $t seems li&e all youre doing is going from fund raiser
to fund raiser ma&ing promises based on the audience. Averyone who gives you money
e'pects a favor in return, and certainly e'pects you to vote for his or her position. #eople
generally dont give money because they believe you are the best candidate for the
country. They give money because they want your vote or support on a specific issue. $t
seems li&e you get to a point whereby its difficult to do anything you truly believe in.
%r. .ones is going to tell you that its a very tough position to hold and balance the
interest of your contributors and the public. Bou &now in your heart what is good for the
public and what is not, but you also &now that you have contributors who put you in
office that have needs, and you try your best to balance these sometimes conflicting
Date: Winter 2007
needs. %r. .ones will tell you that a true statesman is a person who always does the right
thing for the public, even if it means he no longer will be able to raise money and no
longer will be elected. A politician is one who does whatever it ta&es to get reelected.
%r. .ones also will admit that over fifteen years he has not always been a good statesman,
and too often was a politician. This especially is true in his earlier years. =owever, the
evidence will clearly show that with time and age %r. .ones began to learn what his true
role was and what his true responsibility was. =e became much more of a statesman than
a politician, and this particularly is true in regard to the incident we are here about today.
$n fact, even though the >tate of Florida has the burden of proof beyond a reasonable
doubt to prove to you that %r. .ones too& a bribe, we are not as&ing the >tate to prove
anything. 3e are going to prove to you that %r. .ones is innocent. $n fact, by the end of
this case we will have proved to you beyond a reasonable doubt that %r. .ones not only
did not ta&e a bribe from DBE 8orporation, but he in fact too& positions directly contrary
to the best interest of DBE 8orporation because he did the right thing and voted on what
was best for the community.
The above opening statement tells the urors that you understand and agree with their real life
e'periences and perceptions that politics is corrupt. Bou are not going to try to deny it and you
are not going to hide from it. $n fact, your client has faced this balancing act many times, and
not always ended up on the right side. =e is not proud of that, but he is human. The most
important thing is that he developed as a person and as a statesman with time, and he is not
guilty of the act that the prosecutor is accusing him. +y presenting this type of theme, the urors
are able to conclude that their perceptions and e'periences are correct about politics and
politicians, and that your clients innocence is consistent with their e'periences and perceptions.
Presenting Your Theme Logically and Consistently
3hen preparing your case, thin& about the concept of reading a boo& about the life of an
individual written by four separate authors. Aach author has been told to write about a different
stage in the individuals life. There is no general theme. The boo& would be as interesting and
effective as a trial conducted by four different attorneys, none of whom &new what the other was
doing. $t would have no central theme7and would not win over the ury.
Avery part of your trial must contribute to a consistent theme. This might re-uire that certain
evidence that appears to be e'tremely strong and helpful to your client must be discarded
because it is not consistent with that theme. For e'ample, lets say the defendant is a maor
corporation, and your theme is that this corporation is a moneyma&ing body that is indifferent
about inflicting harm on the public. Bour theme is to attac& the board of directors for having
Date: Winter 2007
agreed to put a given product out for sale to the general public. Bou may have evidence that one
of the laborers for this corporation committed a horrible act that contributed to creating this
horrible product. =owever, if the evidence of this laborers act does not contribute to your theme
of the board of directors causing the incident because of greed, and in fact lessens the impact,
you should disregard it as part of your presentation.
8onsistency with the theme of your case is one of the most difficult concepts of trial practice to
fully appreciate. Avery part of your case, as stated, should logically fit into your theme. $ts very
difficult not to introduce all the favorable evidence, but this is crucial in presenting an effective
theme. The theme presented must be logical and consistent, so there will be no confusion in the
message you are attempting to convey. %oreover, its very important to try to present as short
and concise a case as possible. Cemember, urors have short attention spans and need to receive
information in a fast paced, concise, and entertaining manner. This often re-uires choosing what
evidence to present and not to present.
A Theme Is More Than Just Words
Bour theme is found in more than the words you spea& to a ury. $t must be developed by your
actions, your mannerisms, your dress, and your non4spo&en image at trial. For e'ample, if part
of your theme is that influence, power, and money are what drives the decision ma&ing of your
opponent, then you must draw a clear distinction between your client and your opponent. $f your
theme centers around something as basic as /avid meets Foliath, then you and your client must
proect the image of an underdog shepherd boy rather than that of an arrogant, overconfident,
immensely powerful giant.
Gnfortunately, few trial lawyers with fighter pilot, cowboy mentalities are willing or capable of
accepting the fact that the trial is not about them. The theme that they need to be developing is
not about them. They sometimes have a difficult time accepting that as the trial lawyer, they are
simply the conduit for the theme. $f understated humility is what is needed to proect a chosen
theme, then the trial lawyer must have the ability, discipline, and willingness to fit into that
persona. The lawyers mannerisms need to blend with the words being utili,ed to convince the
ury on the theme.
There is a well4&nown and well4respected trial lawyer from Feorgia who typically is recruited to
defend corporations who have engaged in conduct that usually ma&es these corporations subect
to punitive damages. This defense lawyer has mastered the use of a theme that wor&s to
minimi,e damages no matter how reprehensible the conduct of that corporation might have been.
=is theme, broadly stated, is that decent employees7employees who are terrific mothers and
Date: Winter 2007
fathers of terrific children7should not be indirectly punished because of the deplorable conduct
and decision ma&ing of a greedy few. =e is able to spin the image of a company that is made up
of people who are ust li&e the people sitting in the ury bo'. The corporations he defends in
those high4ris& cases are filled with decent, hardwor&ing people who would never dream of
causing harm to an American consumer. Li&e in any wal&4of4life, there were a few greedy,
reprehensible persons who acted in a shameful manner and those individuals should be punished.
The company should be re-uired to pay the plaintiff a ust compensation, but the company
should not be punished so as to harm all the common, everyday, hardwor&ing people who wor&
for the company.
This corporate attorney is not afraid to shed the image of the combative, fierce4loo&ing warrior
and proect an image of the humble, reserved peacema&er who appears to be out4s&illed and out4
lawyered by his powerful opponent throughout the entire course of the trial. =e has an ego that is
well4adusted to allow him to appear overpowered, outmaneuvered, and painfully disturbed by
the conduct of those 5few greedy people6 who have made his multi4billion dollar corporation
into a 5victim6H +y the end of the trial, he begins to loo& li&e his theme in every respect.
TYLITIC I!E I" TRIAL
pea#ing to Jurors as $riends
Freat politicians give great speeches, but there are probably few of them who would ma&e good
trial lawyers. The techni-ue used in persuading masses of people is different from that used in
tal&ing to and persuading a small group of people such as a ury. %any of Americas most
effective politicians are physically attractive, and they often have a spea&ing style and a voice
that people find pleasant. The good news is that the trial lawyers effectiveness is not dependent
on physical attractiveness or a pleasant voice. %any of the most effective trial lawyers probably
could not get elected to any political office, but are nevertheless effective in persuading a ury.
The difference between these two effective spea&ers is that one uses a formal, guarded approach
to speech while the other is spea&ing candidly to urors as friends, bringing them into the
conversation, and ma&ing them a part of events ta&ing place around them.
A trial presentation (especially voir dire, opening and closing! must never be a speech. Cather, it
should sound and feel as if someone were telling a friend about the incident, the issues, and the
law. 3hen spea&ing with a friend, a person does not tal& down to him0 otherwise they will not
remain friends for very long. Bou should be rela'ed and natural. A trial lawyer should not try to
copy someone elses mannerisms and style. The same tone of voice, facial e'pressions, and body
Date: Winter 2007
language used in e'plaining a position to a friend should be used in ma&ing your presentation to
the ury.
Technical Terms
3hen preparing a case for trial, thin& bac& to your first days of law school. Bou li&ely felt you
were in a foreign country, as every other word was unrecogni,able. Bou became an'ious about
your inability to follow the conversation, no matter how hard you tried. This is the same feeling
the urors are e'periencing. Thus, you need to ma&e sure to use common, real world language.
3hen you have to utili,e technical terms, ma&e sure you immediately define them.
The urors li&ely have no understanding of such terms as plaintiff, defendant, complaint, answer,
negligence, burden of proof, greater weight of the evidence, or sympathy verdict. Cather than use
technical terms, counsel should use vivid descriptions. For e'ample, a lawyer should not say that
the plaintiff suffered a fracture of 84( as a result of the collision between his vehicle and the
defendants vehicle. Cather, the lawyer should say that %r. .ones bro&e his nec& when %r.
>mith, a driver for DBE 8orporation, ran a red light and crashed into his car. Finally, counsel
should avoid using multi4syllabic or difficult to understand words, such as subse-uent or prior.
$nstead, counsel should say 5after6 or 5before.6
tyle o% pea#ing
$t is critical for counsel to convey a belief that her position is unsha&eable. >he must be confident
and sincere, and she must convey the seriousness of the case. >he must avoid demonstrating a
lac& of confidence in her case, issues, or client. Bou may borrow another attorneys arguments,
but you should never attempt to borrow her style. Bou should be yourself. Bou should use
repetition and pauses to emphasi,e important points.
Finally, counsel must believe in what he is saying, and feel confident in what is said, without
being flippant or coc&y. +eing well prepared is the best way for a lawyer to feel confident during
trial and during closing argument. +ecoming fully prepared for trial re-uires a significant shift in
the attorneys attitude over the course of the preparatory period. /uring initial preparation, the
attorney must adopt an overly critical and obective attitude in order to prepare every facet of the
case. The attorney who is blindly confident rather than obsessively obective throughout
preparation will tend to belittle the oppositions strong points and fail to appreciate the
wea&nesses of his own case. Force yourself to nitpic&. Force yourself to obsess about details.
Force yourself to be the worst critic of your case during the initial case preparation.
After completing the initial preparation, however, the time for obectivity ceases. The
practitioner then must develop a frame of mind that is totally committed to the clients position.
The attorney must believe in that position in order to convey it in its best light to the ury. $t
stands to reason that a person who actually believes in a cause can present it better than one who
Date: Winter 2007
has doubts or a nagging worry that perhaps even he might believe in the opponents case. This
shift from obectivity to advocacy is a difficult shift that must be understood by a trial lawyer. 3e
as trial lawyers must be as capable in the role of obective critical analyst as we are in the role of
unfaltering advocate.
Learning the peech
Avery single aspect of your trial presentation should be prepared well in advance of the actual
delivery, with modifications being incorporated throughout trial. Bou should practice the delivery
of all portions of your presentation several times, and for purposes of the opening statement and
closing argument you probably should practice it in front of a non4lawyer and as& for comments.
After all, you will be tal&ing to non4lawyers when you deliver your trial presentation, and a
criti-ue from a non4lawyer could be very helpful.
The best approach for most attorneys is a combination of 5learning6 your presentation (e.g., voir
dire, opening, e'aminations, closing! and using notes. $f you are reading your presentations, you
probably will lose more than your fair share of trials. There are many reasons for that0 the least of
which is that it is virtually impossible to ever 5connect6 with a ury that is simply watching you
read your notes. $t is impossible to ever develop any 5peripheral vision6 for what is occurring in
the courtroom. Bou might as well type up your words, hand a copy to the ury, and as& them to
5read it with feeling6 as you sit and watch your case go down the tubes.
#rofessional actors, politicians and chief business e'ecutives are re-uired to learn thousands of
words as they perform their craft. There are memory tric&s they utili,e to ma&e their
communications seem fluent and natural. >ometimes they write and rewrite their lines with pen
and paper. >ometimes they list &ey words for themselves that help them move from one
paragraph of speech to another. >ometimes they create outlines that they can visuali,e as they
deliver their lines. +ut the one thing they all recogni,e for sure is that they can never deliver a
line creatively, insightfully, with feeling, until it is first 5learned,6 and they practice delivering
their lines with different feelings and emotions.
"nce you have 5learned6 your various trial presentations, you can then be spontaneous and
deliver big picture concepts in an impromptu way that loo&s natural and unrehearsed. "nly after
the &ey lines are learned through hard wor& can the lawyer really move around the concepts and
master the concepts in a way that ma&es her wor& loo& li&e art. After learning the material, the
&ey words or thoughts may be placed on note cards or in an outline format for use at trial. $f the
preparation is ade-uate, it is unli&ely that a trial lawyer will continuously refer to notes. $nstead,
she will find herself 5tal&ing6 to the ury. %ore important, the trial lawyer will &now the material
Date: Winter 2007
well enough to ma&e adustments according to what occurs during trial.
&re'ity
/uring a trial, urors have the difficult tas& of processing significant amounts of information,
often with conflicting content ac-uired over a prolonged period of time. 8onse-uently, in close
cases, many e'traneous influences intervene in the urys final decision. %oreover, there are
significant individual differences in urors ability to maintain interest and concentration over a
period of time. $ndividual variables such as susceptibility to distraction and fatigue, age,
intelligence, physical disabilities, and boredom all impact on how much of an attorneys
presentation a uror comprehends or retains.
The nature and format of the trial presentation has by necessity changed significantly over the
last few decades. "ur culture has helped develop an overwhelming maority of people with an
e'tremely short attention span. 3e process information in 5sound bites6 and by reading
headlines. 3e learn more from what we see than from what we hear because of our e'posure to
television shows, motion pictures, and high4tech computer presentations. 3hile the human
intellect is remar&able, it has limitations, particularly in retaining all the details that may be
introduced at trial. .urors are used to seeing and hearing =ollywood4-uality five4minute
summations on television lawyer shows.
3hat a uror comprehends and remembers is overwhelmingly subective and not easily
predictable. $t occurs in a sometimes wildly random manner and differs from uror to uror.
Accordingly, trial attorneys must find a way to simplify their trial presentations, and present a
fast4paced, stimulating case. >ome of the largest verdicts in the country have occurred in trials of
three days or less.
The attorney must control the presentation of the trial by painsta&ingly evaluating and
reevaluating the case. >uccess lies in selecting only a few &ey issues and then ma&ing certain
those issues presented are the most pertinent and clear4cut when the last words are spo&en. $n
fact, an attorney must often forgo introducing possibly helpful evidence because it will
unnecessarily delay and often complicate the presentation of trial. This type of lawyering
sometimes re-uires a huge amount of discipline because its contrary to our nature. 3e often are
so close to the minutiae and details of a case that we want to show off our command of the facts.
3e too often want to let the ury &now that we have wor&ed hard in preparing our case and that
nothing has gotten by us. 3e too often want to leave the ury with the impression that we are the
grand master of every detail that they have been e'posed to in the course of the trial, and
therefore, we certainly should be entitled to a favorable verdict. The bad news is that most
Date: Winter 2007
e'perienced trial lawyers will tell you it doesnt wor& that way. The shorter, more concise, and
structured the trial, the more effective it will be.
trongest Points $irst or Last
$n regard to the entire presentation of your trial and every subset thereof (e.g., opening statement,
case4in4chief, direct and cross e'amination, rebuttal case, and closing argument!, you should
present your strongest points first and last, not in the middle. This is because people naturally
remember more of what they hear first and last. %oreover, people feel a desire to form opinions
-uic&ly and stic& to them. $ts human nature. This especially is true in todays time of
instantaneous information (internet, e4mails, headline news, etc.!. There is a reason that
television shows depict two or three trials in a one hour program. #eople have a limited attention
span.
To grab the urys attention and have the most impact, it always is best to start strong in the
morning and end strong at the close of the day. Ieep non4important, but technically necessary
information, for immediately after lunch when the ury is most li&ely at their lowest level of
concentration.
!se o% Repetition
Averyone has a limit to the amount of information he or she can retain and readily access. This
particularly is true when the information is comple', technical and conflicting. The best
individuals can do is recall general themes and perceptions. For e'ample, a uror can get to the
end of a case thin&ing the defendant did everything reasonably possible to avoid the accident.
Bet, the uror recalls little of the facts raised to support this conclusion. The uror simply has a
gut reaction that the defendant should not be held liable.
For this reason, its important for attorneys to choose the facts and issues that will have the
greatest impact on the urors, and then use repetition to reinforce the importance of these facts
and issues. 3hile the urors might not recall the specific facts, the repetition will reinforce the
urors general perception. A rule of thumb is that a fact or issue needs to be repeated three times
for the urors to have the best chance of recall. Also, the greater the variety utili,ed in conveying
the message (such as verbal, visual and audio!, the greater the recall.
$mportantly, too much repetition can bac&fire. This is why $ try to stic& to limiting the obvious
repetition to appro'imately three times. Too much repetition and the urors begin to tune out or
demean the significance. 3e all have had the e'perience of watching a gruesome video. The
first few times, the images are very disturbing and powerful. After that you start becoming numb
and even unsympathetic to the events, particularly when the video is shown repetitively over a
relatively short period of time. Thus, the shorter the trial, the less repetition you will want to
incorporate. Appro'imately three times will wor& well in a shorter trial (:42 days!, while more
repetition will be necessary in a longer trial.
Date: Winter 2007
pea#ing (ith Mental Images
The trial attorney should create mental pictures to describe the facts. For e'ample, besides stating
that the plaintiff is a -uadriplegic, counsel also should state that the plaintiff cannot use his arms
or legs. $ts imperative that you leave mental pictures about what your words actually represent.
The mental pictures are what the urors will remember long after they hear your words.
"ne of the many legends about a very well4&nown trial lawyer from @ew Bor& named %oe
Levine is that he delivered these words during the rebuttal portion of his closing argument:
Bou have heard a very capable lawyer tell you how the amputation of my clients arms is
something that he will overcome with proper rehabilitation. Let me tell you what $ have
observed about my client. $ had lunch with him today before we came into this courtroom
for these arguments. =e sat there without his arms, bent his upper body down toward his
plate and ate the food off his plate li&e a dog.
Although we are rarely given facts that allow us to leave mental pictures as powerful as this, we
must constantly be vigilant in reducing our words to mental pictures that outlast our spo&en
words. "nce you incorporate this concept into your spea&ing style, the use of such images will
become more natural and more second nature.
!se o% Analogies
Analogies are a powerful form of argument that can be very effective in persuading a ury. Few
persuasive devices affect urors more than an appropriate comparison to something they
recogni,e as true from their own personal &nowledge and e'perience. Ampirical research has
shown that analogies assist urors in recalling arguments better than simple recitations of fact or
logic. Analogies also help urors to accept notions they might otherwise resist, and tend to e'ert a
decisive role in influencing the conduct and direction of discussion during ury deliberations.
$n one case, the defendant doctor created a false medical record a year after the incident. The
created medical record perfectly and uni-uely supported the defendants theory of the case. The
argument was made in closing that the most compelling evidence of liability was the dishonest
creation of the fraudulent medical record. The fraudulent record became a metaphor for
cheating, lying, and dishonesty that begins to sound very similar to criminal conduct. $ts similar
to the individual who runs from the scene of the crime as the police arrive. The flight alone is an
admission of guilt ust as powerful as the defendant stating he committed the crime. 3hy would
the defendant run from the scene unless he had done something wrong9 3hy did the defendant
create a medical record one year after the incident, unless he &new he had done something wrong
and needed evidence to support his position9
Date: Winter 2007
!se o% Rhetorical )uestions
Chetorical -uestions also are an effective tool if used properly, and if the answer to the rhetorical
-uestion is clear. Bou need to remember that a rhetorical -uestion is a -uestion that answers
itself. Thus, ma&e sure the -uestion only has one answer, and that its immediately clear to every
uror.
An e'ample of a rhetorical -uestion in opening statement is as follows: 5$ am about to sit down,
and J%r. /efense 8ounselK will have the opportunity to deliver his closing argument. J%r.
/efense 8ounselK needs to immediately answer the -uestion: L$f Jdefense doctorK did not believe
he committed malpractice on %r. >mith, then why would he create a fraudulent medical record
one year after the incident96 This type of rhetorical -uestion is effective at placing the opposing
counsel on the defensive as he begins his opening or closing. The rhetorical -uestion should be
such that it cannot be e'plained, and the rhetorical -uestion should be central to your theme. As
the opposing counsel begins his opening statement or closing argument, the ury is e'pecting an
immediate answer to the rhetorical -uestion. Bet $ have rarely witnessed an incident where
opposing counsel did in fact even address the -uestion.
$f you are ever faced with this type of rhetorical -uestion, and your opponent has done an
e'cellent ob, and there is no effective way to respond to the rhetorical -uestion, you may want to
argue the following:
As you might reali,e, we lawyers are limited in the time that we have to present our
statements and arguments. J%r. /efense 8ounselK has gone through and selected a
number of -uestions that would re-uire me to spend virtually all of my time answering.
There are only three -uestions in this case that are critical, and its these three -uestions
that will be presented to you in the ury instructions and verdict form in this case. >o $
say to J%r. /efense 8ounselK that $ am not going to spend my time answering his
-uestions. $m going to spend my time answering the -uestions that the 8ourt will as&
you the ury to consider and that are contained in the ury instructions and verdict form.
$ts these -uestions that J%r. /efense 8ounselK should have spent his time answering.
3hat are these -uestions9 . . .
Responding to Juror Reaction
Like most persons involved in a social or business interaction, lawyers seek clues to determine
how well their positions are being received. Most often we look for obvious body language or
other signals, such as the timing of a jurors note taking. As illogical as it might seem, my best
advice is to ignore any clues you think you might be receiving. Most often, you will be wrong.
The problem with picking up on juror body language or note taking is that the vast majority of
jurors are incredibly stoic during the trial process. They purposely do their best to appear
impartial and refrain from obvious emotion or partiality. have tried numerous cases where the
Date: Winter 2007
jurors took copious notes during the defense presentation and very few notes during my
presentation !and none during my damage argument". #et, they returned multi$million dollar
verdicts for my clients. have seen jurors fold their arms at me, lean back in their chairs, and
even make what appeared to be grimacing !disapproval" faces. Again, they ended up ruling in
my clients favor. The best have been able to make of it is that what perceived to be
displeasure with my presentation was obviously some other reaction or thought process the juror
was having. even have seen several trials where jurors were crying during one sides closing
argument, yet ruled against them.
The bottom line is that a trial is not a sporting event. #ou do not know whether your game plan
is truly working or not until the jury returns its verdict. #ou dont have a half$time break where
you are told the score, and know whether you need to adjust your strategy. Thus, its much more
important to stay focused and consistent with the game plan you decided when you entered the
courtroom. #our time for detailed analysis and game theory occurred prior to the time the trial
began, and definitely should not be altered on some perceived juror reaction.
%f course, this doesnt mean that you never change your trial strategy. guess its possible that
certain evidence could be admitted or e&cluded that you were not e&pecting. guess its possible
that the judge could direct a verdict or give a jury instruction you were not e&pecting. And
guess its possible that testimony comes in or fails to come in as you e&pected. f any of these
acts occur, its possible you might have to change your trial approach. The reason purposely
have written that ' guess its possible( is because it should not happen. A great trial lawyer has
so thoroughly analy)ed and prepared her entire trial strategy that it plays out like a script. %f
course, there will be obstacles and disappointments throughout the trial, but a great trial lawyer is
never surprised by anything that occurs in the courtroom, and has tailored her trial presentation
to encompass the setbacks. n the end, she remains unflustered, in control, and continues
confidently in presenting a consistent and unwavering theory.
The Making of an Effective Advocate 1
+ecoming a proficient trial lawyer re-uires an individual to live a well4rounded life. A trial
lawyer must be capable of accurately understanding the life e'periences of people regardless of
race, religion, gender, social status, and economic status. A trial lawyer must accept the fact that
if he e'pects to convey wisdom, compassion, and understanding to a ury, then he must grow in
these areas :(2 days a year.
Avery day in our lives there is something occurring around us44an event, a statement, a story,
perhaps even a mundane routine44that should arm us with effective, richer ideas for advocacy if
we are in the habit of paying attention. $f we are unable to ta&e a stroll through a neighborhood
on a >aturday afternoon and find a closing concept as we observe children playing, families
interacting, and all of lifeMs activities ta&ing place before our eyes, then perhaps trial advocacy is
not our best calling. Averyday life e'periences will lay claim to our best ideas. 3e must get in
the habit of observing and recording these concepts when they occur.
Date: Winter 2007
Trial lawyers should &eep a file on various trial strategy ideas that are a wor& in progress
throughout their lawyering careers. The files can range from something that are superbly
organi,ed to something that loo& li&e nothing more than a collection of notes and memos written
on single sheets of legal paper and bar nap&ins stuffed into a manila folder. These files of
concepts should be a collection of ideas that have been passed down from generations of other
lawyers. They should be concepts that have been borrowed from war stories, seminars,
newspapers, maga,ine articles, boo&s, and years of trial e'perience. They should be concepts
that the lawyer thought of at )::* a.m. in a dream.
A'ceptional trial lawyers do not simply borrow trial strategy concepts from other lawyers and
regurgitate them. Freat trial lawyers utili,e concepts and then add the nuances of substance that
fit their courtroom demeanor. They improve upon the concepts by matching them with words
that sound li&e they came from their own mouths. They write down variations of the concepts.
They tal& about the ideas with other lawyers. They improve the ideas to the point where they can
readily be retrieved from their memory and their heart when needed. $n politics, such a collection
of ideas is called Ntal&ing points,N and they often sound hollow and shallow. $n a courtroom, a
collection of ideas and concepts needs to be developed into something that sounds more li&e art,
not sound bites.
/ogged, uncompromising, arduous hard wor& in the preparation of every deposition, opening,
direct, cross, and closing is basic and essential to success. $ts unfortunate that in the last few
decades far too many e'perienced trial lawyers have conveyed a Nshoot from the hipN style that
has wor&ed for them from time to time. That shoot4from4the4hip cowboy style is simply no
longer relevant to trial advocacy. 8reative spontaneity is effective only when its supported and
driven by hours and hours of heavy lifting and preparation long before the trial ever ta&es place.
Bou absolutely must be capable of understanding your case facts and case law better than your
opposition. A disciplined, honest, and thorough evaluation of the strengths and wea&nesses of
your case re-uires tedious, hard wor&.
Finally, and most important, you will never become a great trial lawyer unless you go to court.
Bou will never grow as a trial lawyer unless you show a strong commitment to actively going to
trial every chance you get. $ts no secret among trial lawyers why some attorneys stay away from
the courtroom. There is the fear of being reected by the ury. There is the fear of being labeled a
loser, which might stifle the growth of a trial lawyerMs career. $f you find yourself in that position,
you must overcome the fear of failure. $n fact, you must specifically e'pose yourself to that ris&
of failure by going to trial even when you donMt want to.
The Ma#ing o% an E%%ecti'e Ad'ocate *
The following summary of what ma&es an effective advocate and trial presenter is paraphrased
from Thomas %auet, >trategy, >&ills, and the @ew #owers of #ersuasion, pg. 11 (Aspen
#ublishers )**2!.
Date: Winter 2007
An advocate is a fighter who fights hard and cares about his client. =e e'hibits passion
and commitment, and never stops fighting. .urors appreciate this.
An advocate conveys a sense of inustice. =e ta&es the moral high ground, lin&s his
clients cause with fundamental principles of fairness, decency and ustice. =e reaches
the hearts and minds of the urors, and ma&es them care. =e motivates the urors to right
a wrong, reach a fair result, and ma&e the world a better place.
An advocate maintains credibility. =e is real and acts professionally toward the udge,
opposing lawyers, witnesses and the urors. =e always is trustworthy, &nowledgeable
and dynamic. =e never misstates or overstates the facts or law, and candidly concedes a
point when the facts or the law are against him. =e is the lawyer that the urors
increasingly loo& to as the reliable source of information as the trial progresses.
An advocate is a director. =e decides e'actly how to present and portray his trial script,
as if he were producing and directing a film, play, concert, or some other entertaining
event.
An advocate controls the courtroom. =e becomes the dominant power during the trial.
=e ta&es over the physical space by controlling his counsel table, by putting effective
visual aids and e'hibits throughout the courtroom, and by using the entire courtroom
space. =e dominates the courtroom atmosphere through his spea&ing ability, eye contact,
posture, gestures, and movements.
The Ma#ing o% an E%%ecti'e Ad'ocate +
The following advice on effective advocacy was provided by ten successful trial attorneys
(plaintiff and defense! in the .une 2, )**(, edition of the @ational Law .ournal:
Ieep your theme and issues simple
%a&e sure your theme and issues are consistent with the urys common sense
+e highly selective about the issues you ta&e to trial
Gse only the evidence you absolutely must in order to win
3or& the case from the documents, and let the documents tell your story
/ont call unnecessary witnesses
=ave witnesses testify simply
%a&e sure witness testimony matches the documents
Tell stories urors will relate to
Gse analogies to help urors understand issues and facts
#ut a human face on a corporate defendant when you represent the defense
Date: Winter 2007
+e yourself, otherwise you will come across as fa&e
8onvey confidence
Aarn credibility with ury
>ee the whole playing field even while you are focusing on the moving parts
3hen you thin& you have done all your homewor&, do more
Trial Presentation ummary
o Ceflection7$ thin& about the facts and law of the case from the moment $ contract the
client through the conclusion of my closing argument, attempting to determine from a
logical and common sense standpoint what really occurred.
o Analysis44 $ analy,e and reanaly,e the best trial strategies from the moment $ contract
the client through the conclusion of my closing argument, attempting to determine what
evidence will need to be accumulated and presented to support my trial strategy.
o #reparation7$ prepare for the trial of the case every day from the moment $ contract
the client through the conclusion of my closing argument, ma&ing sure that all conceivable
discovery is performed and that there is no fact, issue, law or other nuance that $ am not
aware.
o "rgani,ation7$ ma&e sure my case file, at all times, is logically and meticulously
organi,ed so that $ readily &now what information $ possess, the -uality of the information,
the -uantity of the information, and the information still re-uired.
o =onesty7$ ma&e sure that every action and inaction on my part in the preparation and
presentation of the case is truthful and forthright.
o 8ommon >ense O A'periences7$ ma&e sure my presentation, theme and conclusions
are consistent with common sense and common life e'periences.
o >uccinct7$ ma&e sure my presentation is succinct, without including any e'traneous or
unnecessary facts or issues.
o #assion7A great trial lawyer truly believes in his case and that ustice only will occur
if his client wins. .uries will pic& up on this passion and belief, and it will have some (as
possibly much! persuasive influence.
Date: Winter 2007
,EM-"TRATI.E AI, A", E/0I&IT
Cetention and comprehension are increased when urors are shown and told something instead of
ust hearing words that probably become confused in their memory. This especially is true in
todays time where people are overwhelmed with visual information from television, movies, the
internet, and high4tech computer presentations. Therefore, attorneys should integrate audio and
visual aids with their &ey issues. >imply put, if you tell someone something, they will recall
some of it. $f you show someone something, they will recall more of it. $f you show and tell
someone something, they will have the best recollection.
8ommon visual aids include enlarged portions of documents, enlarged photographs, medical
illustrations, timelines, computer animations, computer presentations such as #ower#oint slides,
digital video segments, and the use of visual presenter machines. $ have used each of these types
of visual aids during trial and have found them very effective.
?isual aids, however, should be used only for the most important issues that must be retained by
the ury. "veruse of visual aids will confuse the ury as to what is important, and some of the
most important issues may be overloo&ed. $ts also important to &eep the visual aids concise and
simple. Too much information, colors, small print, arrows and other mar&ing will serve to
confuse the urors. >imilarly, its not uncommon for high4tech presentations to fail because the
visual aids are so impressive4loo&ing and professional that the urors lose sight of the actual
message being conveyed. =igh4tech presentations also can give the appearance that the opposing
counsels case must be wea& on the facts if he feels it necessary to spend so much money
creating 5a dog and pony show6 or a 5smo&e and mirror show6 that appears to be far 5too slic&6
for the setting.
$ts also important to review all visual aids before providing them to opposing counsel. This
especially is true of computer animations. $ have been involved in trials where $ was able to
utili,e opposing counsels visual aids to prove vital points in my case. $f the visual aid is not such
that it truly helps your case in e'plaining the issues to the ury, then do not use the aid. The
substance of your presentation is more important than the form. $ts li&e putting a witness on the
stand. %a&e sure you absolutely need the information before the ury, as you do not want to
accidentally create issues for the urys determination or create points for the opposing side.
The $oundation %or ,emonstrati'e Aids and Exhi1its:
"ne of the more important aspects of an effective trial presentation is the smooth admission of
e'hibits and demonstrative aids. An e'hibit is a tangible item introduced as evidence during a trial, and generally
Date: Winter 2007
sent bac& to the ury room during the deliberation process. A demonstrative aid is a tangible item that
generally is not sent bac& to the ury room, yet is considered useful in assisting the ury to better understand the factual and legal issues in the case.
Gnless stipulated by opposing counsel, an e'hibit will not be admitted without the moving party first establishing that it is relevant to the proceedings and
that it accurately depicts what it purports to represent. To be relevant, the e'hibit must have a tendency to ma&e the e'istence of a fact or issue more
probable or less probable than it would be without the evidence. 3hile this is a paraphrase of Federal Cule of Avidence ;*1, this definition generally is
consistent with most state laws. To establish that the e'hibit accurately depicts what it purports to represent, the moving party will be re-uired to call one
or more witnesses, unless the e'hibit is self4authenticating. For guidance on self4authentication review Federal Cules of Avidence P*14P*) and 1**141**Q.
Aach state also will have its individual rules of evidence.
$n regard to demonstrative aids, the issue is very much within the discretion of the trial udge. $f opposing counsel does not agree to the use of the
demonstrative aid, the udge will re-uire a witness to testify that the demonstrative aid will be helpful in e'plaining hisRher testimony to the ury.
%oreover, the moving party will need to establish that the demonstrative aid accurately depicts what it purports to represent and that its relevant to the
facts or issues. Fenerally, a udge will be more willing to stri&e a demonstrative aid on preudicial grounds than the udge will stri&e an e'hibit.
Pu1lishing Exhi1its and E'idence to the Jury2
The publication of evidence to the ury is an e'tremely powerful presentation tool. The reason
for this is that its one of the few times during the trial (in addition to voir dire, opening and
closing! that a lawyer has the opportunity to spea& directly to the ury. Thus, its more difficult
for the members of the ury to tune the evidence out or daydream. This especially is true because
the publication of evidence usually ta&es only a few minutes.
$ do not recall a single ury trial that $ did not publish evidence before the ury. Fenerally, $ will
read them -uestions and responses to interrogatory -uestions, re-uests to produce andRor re-uests
to admit. "ther times $ will try to get the court to permit me to publish certain portions of
e'hibits, for e'ample, read a few important sentences of a lengthy document. $f opposing
counsel obects to the reading of a portion of the document, $ site to Federal Cule of Avidence
1**( (or its state counterpart! that permits the summary of voluminous evidence. $f opposing
counsel is overly concerned with the impact of the published information, he li&ely will argue
that the limited publication is misleading and that other portions must be read at the same time to
place it is conte't. "pposing counsel will argue this in order to try to diminish the impact of the
publication. Cemember, the longer and more confusing the reading, the less impact it will have
on the ury. /o your best to try to limit the amount of information being published. $ e'plain to
the udge that $ have no obection to opposing counsel reading any portion of the document he
deems important and appropriate immediately after $ read the limited portion $ believe is
pertinent.

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Course Title: Evidence

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