Some years ago, I blogged about “Effective Cross-Examination at Trial.”  I stand by those comments, but my technique has evolved. 

Some of my colleagues cross from a word-for-word script, including full printouts of the impeaching testimony or exhibit, but I prefer a simple outline, to make the cross more organic.  I have a summary of the point I want to establish in the left column and citation to the impeaching deposition testimony or trial exhibit in the right.  Absent a budget concern I always take videotaped deposition, which should result in an impeaching video clip ready in the trial display system as needed. read more

Your client’s case is presented primarily through “direct” examinations, those where your witnesses tell your side of the story in their words. 

Advance Planning

Before meeting with your witnesses to prepare, you should have developed your case “theme,” possibly through a mock jury.  This is a plainspoken statement of why your client’s position is just, made in terms the Starbuck barista can understand.

I pull together the most important exhibits, assemble them in chronological order and invite all my witnesses to assemble for a “walk-through talk-through.”  The witnesses may have touched upon different aspects of the dispute, but likely never met together to obtain a global picture.  read more

The trial phase that takes place before opening statements and presentation of evidence is popularly referred to as jury “selection.”  This is a misnomer.  The parties do not “select” jurors who will hear their case.  Rather, after several rounds of vetting by courthouse staff and the judge, potential jurors are seated in the jury box and become jurors by default—except to the extent they are “excused,” or “de-selected,” before trial begins.  Jury “selection” is therefore about removing bad jurors, not selecting good ones.

Potential jurors are first contacted by courthouse jury commissioners through mail solicitations based upon a “master list.”  read more

A trial is conducted in a box. 

Literally and figuratively. 

The literal box is the windowless room in a government building in which the trial is conducted. 

The figurative box is drawn by the judge, who admonishes jurors that they are only to consider the evidence admitted inside the courtroom and shall not conduct research or consider information beyond the evidence admitted in the trial.

Yeah, right.

Okay, when these rules were framed, to research a party in the case, a juror would need to travel to a good library, search through index cards, talk to a research librarian and wander the shelves to pull information not received in the trial.  read more

Trying cases is a lost art in the business world.  Supposedly 95% of business cases settle prior to trial.  That may be so, because I consider 95% of my business law colleagues to be litigators, not trial lawyers: those who exclusively use pleadings, discovery and motions to posture a case for settlement and who have little to no trial experience. 

If a reasonable settlement can be achieved, I advise my clients to take it.  Trying cases is expensive and uncertain.  But if you’re not eager and able to try the case if necessary, how are you going to get the best settlements?  read more

“Mini-opening statements,” or short opening statements to potential jurors before jury selection (“voir dire”), are a little understood but critical aspect of trial practice.

Parties are often required to submit joint materials before the pretrial conference including a short statement of the case.  See LASC LR 3.25(f)(1).  As a stipulated document, though, it will be sanitized to the point of revealing little about the case other than identification of the parties and claims.  On the day of jury selection, a “panel” or “venire” (“to come,” from the jury summons) of thirty to forty potential jurors will enter the courtroom and sit in the gallery.  read more

Trial attorneys have at most four opportunities to speak to a jury: 1) a brief opening statement prior to jury selection (state only and on request); 2) jury selection, or “voir dire” (“to see one say”); 3) opening statement; and 4) closing argument.  The first two are before the jury is selected, and only in the second, jury selection, is one permitted to ask potential jurors questions and hear their answers.  This golden opportunity should not be squandered through ill preparation.

In federal civil practice the judge retains tight control over voir dire and need not allow attorneys to ask questions.  read more