Chapter 6:
Pretrial and Trial Practice
V. Trial Practice
A full development of trial principles and techniques is best left for specialized trial practice courses and the treatises and handbooks devoted to the subject./322/ Nonetheless, a brief review of the basics may assist the busy practitioner. Simply stated, the keys to a successful trial are thorough preparation and excellent organization. Maintaining a trial notebook helps you achieve these objectives. A bench book for the judge that contains exhibits, pleadings, and precedent may also prove helpful in both jury and non-jury cases. Being well prepared and organized not only improves the substance of your presentation, but also signals to the judge and the jury that you are trustworthy and credible, attributes that are essential to successful advocacy.
V.A. Waiver
The first issue that the lawyer must confront is whether to have the case tried before a judge or a jury. While jury trials are not available in cases seeking only equitable relief, a litigant has a constitutional right to trial by jury in virtually any case in which damages are sought. This encompasses most legal aid matters such as consumer cases, fair housing claims, and civil rights actions brought against police, corrections officers, or other governmental personnel./323/ A jury trial, however, must be demanded in the complaint or by written demand served within ten days thereafter./324/ Otherwise, the right to trial by jury is waived./325/
In certain cases, such as where the issues are unusually complex or you represent an unsympathetic plaintiff, you should consider whether to recommend to your client waiver of the right to a jury trial. If your recommendation would be affected by the judge to whom the case is assigned, consider omitting the jury demand from your complaint and decide whether to request a jury after you know the specific judge who will hear your case. Remember, though, that if you decide to waive the jury, the defendant may elect to request a jury trial for the very reasons you chose not to. Therefore, if you believe that a bench trial is essential, your only option is to omit a plea for damages or otherwise limit your pleading to issues not triable by jury.
Timing is another consideration in deciding whether to insist upon a jury trial. Jury trial dockets may move more slowly than a bench or court trial docket. Always determine whether the client can afford a delay. Of course, a delay may inconvenience the other side as well. Thus, consider whether the imposition is greater for your client or the opposition.
Waiving the right to trial by jury is a decision that should never be made lightly, especially when representing an individual plaintiff. It is a mistake to underestimate the common sense, independence, and intelligence of juries. A jury’s value lies principally in the freshness and independence of a juror’s perspective. Jurors, unlike judges, are not infected by the cynicism of the routine. A jury writes on a fresh slate and may be receptive to arguments that a judge or hearing officer stopped listening to long ago. Depending upon the composition of the pool from which the jurors are chosen, jurors may be more generous in awarding reasonable compensation for a wrong.
V.B. Jury Selection
In a jury trial, you will have a limited opportunity to select the jury. The selection process, however, involves the rejection of prospective jurors - through “challenges”- not the selection of acceptable ones. Challenges to prospective jurors are made during or after a voir dire examination, in which members of the venire panel are given information about the case, the parties, witnesses, and counsel, and asked questions as to whether anything in their backgrounds or experience would make it difficult for them to decide the case fairly.
The method by which the voir dire examination is conducted varies from jurisdiction to jurisdiction, and sometimes even from judge to judge. Although some courts still permit lawyers to do the voir dire by themselves, it is more common today for the court to conduct the voir dire examination entirely on its own or at least to ask most of the preliminary questions while allowing the lawyers to ask certain follow up questions. Many judges prefer the more limited role of attorneys in voir dire, believing that it expedites the jury selection process and minimizes the opportunity for lawyers to “argue” their case. In preparing for trial, check the local rules and investigate how the judge handles the voir dire process, including whether and how the judge permits attorneys to question potential jurors and the manner in which challenges are to be exercised.
In the courts that permit a more active role for attorneys, the voir dire will be your first significant exposure to the jurors, and it is important to make the most of it. During your questioning, you should educate the jurors about the theme of your case and the strength of your evidence, establish your credibility, and develop a rapport with them. An abbreviated opening statement or preface to the voir dire, if permitted by the judge, is useful to give a broad overview of the case and to show the jurors that you believe in your client’s cause. You may wish to defuse in advance any apparent weaknesses or prejudicial aspects of your case. To learn as much as possible, ask open-ended questions. To keep the jury from getting bored, ask new or altered questions to different jurors, and personalize some questions to a particular individual’s background. If you must delve into potentially sensitive personal information, ask the juror if she would prefer to talk about it with counsel and the judge alone. If possible, have a colleague take notes about juror answers so that you appear cordial, respectful, and concerned about their answers.
Even where the court handles the voir dire on its own, you should take advantage of all opportunities to learn as much as possible about the potential jurors. Typically, basic background information on each juror (e.g., age, occupation, marital status, place of residence) will be provided by the court when the panel is seated. In addition, courts will usually invite or permit counsel to submit proposed voir dire questions in writing. Thus, well before trial, you should think carefully about the characteristics and backgrounds, as well as the attitudes and values, of people whom you would expect to be the least disposed towards your case, and then try to develop questions that will aid you in identifying those people who you would strike from the panel.
Based upon the voir dire, you will be allowed to make two types of challenges. First, you may ask the court to excuse a juror “for cause” if the prospective juror’s answers show that he or she cannot be fair and impartial or, for some other reason, is subject to disqualification. In addition, you will be granted a certain number of “peremptory challenges” to remove individuals for any reason, subject to the rule that such challenges may not be used to remove jurors on the basis of race./326/ Under 28 U.S.C.§ 1870, each party in a federal jury trial is entitled to three peremptory challenges unless they share an identity of interest, in which case the judge has discretion to limit each such group to three peremptories. As with voir dire, familiarize yourself in advance of trial with the court’s procedures for how and when such challenges are to be made. At a minimum, have a system at trial that allows you to manage the jurors’ names and the information that they convey so that you will be able to use your challenges wisely.
V.C. Opening Statement and Closing Argument
Opening statements and closing arguments serve different purposes and make different demands on the advocate. Each is a form of art requiring careful analysis and preparation. Opening statements and closing arguments should be delivered in a well-paced and well-modulated manner, with minimal reference to notes. In a jury trial, do not patronize the jurors or insult their intelligence; it must be clear that you believe in and respect them. When addressing a jury directly, be yourself. Attempting a new or unfamiliar style may cause the jury to doubt your genuineness, diminishing your credibility.
V.C.1. Opening Statement
The opening statement must be tailored to your audience. Judges sometimes read pretrial briefs and are familiar with the issues, but juries certainly will not. From the jury’s perspective, trials are like impromptu theater, and you are on stage at all times. In your opening and throughout the trial, you must tell a story that rings true and resonates with the jurors’ own life experiences.
The opening is a statement; overt argument is improper. Nevertheless, the opening is intended to persuade the fact finder about the legitimacy of your case. Jurors often have made up their minds by the time the opening statements are concluded. They pay careful attention because it is the first time that they are being told the full story, they are not yet bored or jaded, they are still anxious about what their duties are in this novel context, and they tend to remember best what they hear first (and last). If they develop a strong opinion based upon the opening, they will tend to focus on and retain the evidence that supports that opinion and ignore or explain away the contrary evidence.
Never devalue your opening or waste time by starting it with disclaimers like “what I say is not evidence.” In a jury trial, the judge will already have so instructed the jury. Instead, utilize the well-accepted principle of primacy to capture the attention of the fact finder immediately. During the first minute, introduce your client, establish your theme, and briefly explain the agenda for your statement. Give a “road map” to the case and highlight coming attractions and priority information. Most important, say something early on that will gain the sympathy and pique the interest of the fact finder. Then tell your story in a way that a listener unfamiliar with your case will be able to follow and find compelling. Keep your story dramatic, human, and organized. Do not include every detail of your case, but include enough to convey a clear picture. Anchor your case to basic points of right and wrong. Be enthusiastic about your client and confident in your case; be a leader, a guide, a teacher, someone who can be trusted. To facilitate communication, repeat key words and phrases, tie everything to the theme, pause for emphasis, and move around a bit. Use visual aids when permissible. A timeline that displays the significant events or elements of your story is a device commonly used by trial lawyers in opening statements. Headlines that announce a new topic help the listener follow your statement. Maintain eye contact. Reference to a few notes is acceptable, but reading your statement is not.
Emphasize vital pieces of evidence or witnesses. Confront and minimize the weaknesses in your case but stress the weaknesses of your opponent’s case. End on a strong note or recapitulate your key points. Tell a jury that you are confident that when they hear the evidence, they will return a verdict in your client’s favor.
V.C.2. Closing Argument
Although you must review the key evidence in your closing argument, the purpose of the closing is not merely to summarize the evidence. It is a one-way conversation designed to persuade. An outline of the closing should be prepared before the trial begins and should sound the same theme introduced in the opening statement, the direct examinations, the cross-examinations, and the instructions. As the trial progresses, you should add to your outline, making notes about the actual proof that is entered into evidence and how it relates to your argument.
Start with the theme. The theme must relate to an accepted standard with which the fact finder is familiar, typically centered on concepts of justice and fairness. The summation should anticipate and be tied to the jury instructions that the judge has agreed to give. Refer to specific instructions and explain how the evidence meets the standards set forth in the instructions. You need to give the jury reasons to support your contentions so that the jurors can feel reasonably certain that they are doing the right thing. It will also help to arm your “proponents” as they argue for your point of view during deliberations with the other jurors. Show them why each finding you want is right. Highlighting key portions of documentary exhibits and testimony is highly recommended. In addition, the use of charts, diagrams, and other demonstratives summarizing the issues and the evidence bearing on each may be useful. Explain and unify the evidence to support your conclusions.
Analogies drawn from common experience and rhetorical questions help the jury do the thinking on its own to reach the conclusions you are urging. Repetition of key facts and themes in moderation is persuasive. Pace yourself, but build passion and energy into your closing. Question the credibility of the opponent’s witnesses, the facts they assert, and whether their stories are consistent with the jurors’ common sense. Try to show that what the other side wants the fact finder to believe is improbable. Refer to your client by name. Use few notes and maintain eye contact. Keep the argument reasonably short and never boring. Explain how your client has been harmed and why he needs and is entitled to the redress that you are seeking.
V.D. Preparation and Examination of Witnesses
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The attorney’s preparation and examination of witnesses differs if it the task at hand is direct or cross examination.
V.D.1. Direct Examination
Most attorneys tend to be less attentive and aggressive in direct examination of their own witnesses. Effective direct examination requires (1) that you elicit basic facts in a way that makes them understandable to people who are unfamiliar with them; (2) that you maintain continuity despite objections and interruptions; (3) that the witness convey his belief in his testimony and not appear rehearsed; (4) that the rules of evidence be observed, and (5) that a clear record be created in the event of an appeal.
Direct examination requires painstaking preparation. Before trial, write out your questions and review them with your witnesses. Review exhibits and the witness’s deposition or statements with the witness. In preparing the witness to testify, bear in mind who the audience will be, and make suggestions on dress, style, eye contact, and demeanor accordingly. Any trial advocacy text will contain many suggestions for preparing lay witnesses to testify, but the two most important rules are to testify only as to what you know and to always to tell the truth.
Keep your questions short and simple and use plain language. Organize them in a logical fashion, and cover subjects that are consistent with your theory of your case. Although you may refer to notes during the examination, do not read your questions. For particularly important matters that you want to highlight, ask your witnesses to “tell the jury (or judge)” or “please explain to the jury (or judge).” Listen carefully to the witness’ answers for two reasons: (1) to determine if the question is answered adequately and (2) to appear interested to the trier of fact. When answers are inadequate or deviate from expectation, ask the witness to elaborate or explain, ask the question in a different way, or simply repeat the question.
Headlines to introduce a new subject help both the witness and the fact finder follow your line of questioning. To maintain the fact finder’s attention, vary the rhythm and pace of the examination. Visual aids are invaluable in holding the jury’s attention and making your case understandable. Liberal use of enlargements of exhibits and charts, whether on blow-up boards or through electronic trial presentation systems, is recommended. Exhibits should be shown to the jurors as soon as they are formally admitted if an enlargement is not available for them to view.
The use of exhibits requires careful preparation. All exhibits should be numbered, keyed to, and offered through witnesses qualified to testify about them. The witness need not have created the exhibit. The witness need only testify as to authenticity or accuracy. To establish a foundation for authenticity or accuracy, the witness should first testify as to the witness’ capacity or relationship to the exhibit—for example, custodian of business records or caseworker on a particular case. Exhibits should also be reviewed with opposing counsel before the hearing to identify objections and their grounds. In most courts, the rules will provide for the pretrial exchange of trial exhibits.
Objections and how you respond to them should be anticipated when planning your witness’ testimony. To avoid asking questions that draw objections and are sustained, be sure to lay a proper foundation showing that the witness is competent through experience, position, or relationship, to testify about the matter. Typically, objections raised go to the form of a question, the relevance of a question, or the competence of a witness to answer a question. Counsel should anticipate all of these objections and deal with them in a way that maintains her own credibility. This may mean rephrasing a question and asking it in proper form or arguing the relevance of a question within the framework of the issues of the case.
Generally, it is not permissible to ask leading questions of witnesses on direct. Leading questions are permissible, however, in limited circumstances: (1) on preliminary matters that are not reasonably in dispute, (2) when questioning very young or very old witnesses, (3) in examining a hostile witness, and (4) possibly with a forgetful witness.
Prepare your witness for cross-examination as well as for direct. The attorney offering direct examination should rehearse with an associate conducting a mock cross-examination to prepare the witness for the lines of inquiry that the witness is likely to receive on cross. Remind your witness that he is entitled to explain an answer when he feels that the question cannot truthfully be answered with a simple “yes” or “no,” even if pressed to do so by opposing counsel.
When possible, present witnesses who can demonstrate in a compelling and sympathetic way that the issues profoundly affect your client as a human being. Often the judge, jury, or hearing officer comes from a social and economic background far removed from the client’s. Thus, it is wise to have the clients and witnesses present in the courtroom and to bring them to the stand whenever possible. Dry legal issues are never as compelling as human experience presented through live testimony.
V.D.2. Cross-Examination
Before you cross-examine a witness, you must listen to and make notes about his testimony on direct. You must also decide whether to object when a rule of evidence is being violated. Objections and interruptions should be minimized in jury trials. This view seems paradoxical because the rules of evidence are more stringent and rigorous in a jury case. However, a jury that is trying to understand the issues and evidence is apt to resent objections. Thus, whenever possible, raise potential objections in a pretrial conference by a motion in limine and raise expected objections in the courtroom while the jury is absent. Before objecting in the presence of the jury, know how much or how little your judge wants to hear in support of the objection.
Keep in mind the three possible goals for cross-examination: (1) to obtain helpful information, (2) to discredit the witness or her testimony, and (3) to bolster the credibility of a third person who will then discredit the witness. In general, do not conduct cross-examination unless you expect to gain something from it. Indeed, sometimes the best course is to ask no questions at all.
Like direct examination, cross-examination requires complete familiarity with the subject matter on which the witness testifies. Proper preparation includes organizing exhibits, deposition transcripts, and documents in your trial notebook for easy reference and retrieval. The key to successful cross-examination is using impeachment material with familiarity and ease. This requires preparation and practice. Good cross-examination demands—in addition to thorough preparation—that you pay careful attention to the witness’ demeanor and testimony during both direct examination and cross. She may change her testimony from that given at a deposition or information in a report or reveal unexpected information that contradicts opposing counsel’s arguments.
On cross-examination, the questions should be brief but always leading, calling for yes or no answers. In essence, the attorney testifies through her questions. This requires ingenuity, clear perception, patience, and caution. Two common mistakes on cross-examination are asking a question to which the examiner does not know the answer and asking a witness to explain an answer. Counsel should know the answers to all questions in advance, from discovery or from the necessary implications of the direct examination. You may be tempted to ask for an explanation when the witness gives a surprising answer. Do not do so. The wiser response is to leave the answer alone and deal with it in rebuttal testimony or closing argument.
Another common mistake is asking additional questions after you get the answers you want. Stop after you obtain the information that you need to support the argument you plan to make in summation. Do not ask the witness to repeat testimony she gave on direct unless you believe that you can weaken it or are seeking to have her explain or elaborate on testimony that was favorable to your cause. Otherwise, do not ask her to explain answers; the less opportunity she has to educate the fact finder, the better. And never quarrel with the witness. Particularly in a jury trial, the jurors identify with the witnesses, not with you.
V.E. Jury Instructions
Before trial begins, counsel should draft proposed jury instructions that include citations of supporting authority. The instructions must be an accurate, clear, and plain statement of the legal and factual issues in the case. Instructions should cover all tried material issues supported by competent evidence./327/ They should relate the law to the evidence that has been introduced rather than merely state abstract propositions. Many jurisdictions have “model” or “approved” jury instructions that litigants are encouraged, if not required, to use. Sources of pattern jury instructions in the federal system include Federal Jury Practice and Instructions by Edward J. Devitt, Charles B. Blackmar, Michael A. Wolff, and Kevin F. O’Malley. In some circuits, model instructions have also been adopted by the court of appeals./328/
Under the Federal Rules of Evidence, proposed instructions must be submitted “at the close of the evidence or at such earlier time during the trial as the court reasonably requests.”/329/ Some judges include in their trial order a requirement that the parties submit joint jury instructions insofar as possible, and then a list of disputed instructions. You must obtain a ruling on your objections as early as possible to permit you to begin shaping your summation. Because the judge is not required to share his charge to the jury with counsel in advance of delivering it, the more comprehensive your requests for instructions, the more advance notice you receive regarding jury instruction. Often these rulings can be obtained at a “charge conference,” at which objections are raised and the grounds for them stated. If the instruction is given despite the objection, the objection generally must be raised again after the charge is given to the jury, but the reasons probably do not need to be restated./330/
Under Federal Rule of Evidence 51, failure to object to an instruction or refusal to give what you believe are necessary instructions before the jury retires to deliberate, constitutes as a waiver of such objections. An exception to this rule is sometimes recognized where it is plain that a renewed objection would be useless./331/ In other cases, the exception is recognized for plain error or to prevent a miscarriage of justice./332/ Most judges deliver their jury instructions after argument by counsel, but this is discretionary with the judge./333/ The instructions are given in open court, and may be repeated or supplemented at the request of the jury or by the judge sua sponte. Federal judges are permitted, at their discretion, to comment on the evidence when charging the jury./334/
322. E.g., Thomas A. Mauet, Trials: Strategy, Skills, and the New Power of Persuasion (2005); Steven Lubet, Modern Trial Advocacy: Analysis and Practice (2004).
323. U.S. Const. amend. VII.
324. Fed. R. Civ. P. 38(b).
325. Id. 38(d).
326. The rule that peremptory challenges may not be used to exclude racial minorities was first established in the criminal context in Batson v. Kentucky, 476 U.S. 79 (1986). It was subsequently extended to civil litigation in Edmonson v. Leesville Concrete Co., 500 U.S. 614 (1991).
327. See, e.g., FDIC Fed. Deposit Ins. Corp. v. UMIC Inc., 136 F.3d 1375 (10th Cir. 1998).
328. See, e.g., www.lb5.uscourts.gov/juryinstructions/.
329. Fed. R. Civ. P. 51.
330. See Little v. Green, 428 F. 2d 1061, 1070 (5th Cir. 1970).
331. Hammer v. Gross, 932 F.2d 842 (9th Cir.), cert. denied, 502 U.S. 980 (1991); see Wilson v. Mar. Overseas Corp., 150 F.3d 1 (1st Cir. 1998).
332. Parley v. Nationwide Mut. Ins. Co., 197 F.3d 1322 (11th Cir. 1999).
333. Fed. R. Civ. P. 51.
334. See, e.g., McMillan v. Mass. Soc’y for the Prevention of Cruelty to Animals, 140 F.3d 288 (1st Cir. 1998).