'Ladies and Gentlemen of the Jury': How to Handle Your First Trial Like a Vet
Be mindful of the jury. Be ready for the unexpected.
December 11, 2019 at 04:56 PM
5 minute read
Many lawyers vividly remember their first jury address—the moment when a "litigator" becomes a "trial lawyer." For many, a trial is something they've worked toward since the first year of law school. That first trial can be thrilling and unlike anything else in the law. Below, I offer some advice for young lawyers approaching that career milestone.
Prepare, prepare, prepare. When trying your first case, preparation is key. Think through the story you want to tell the jury and script every moment to advance that narrative. Identify the questions you intend to ask, collect the exhibits you intend to introduce, and anticipate the objections you expect from the other side. Thorough planning will help you develop a mastery of the case and build your confidence as trial nears.
Thorough planning will also help you appear polished and professional. Your credibility, after all, will drive the jury's decision. When you deliver closing arguments, you want the jurors to believe what you say. They won't if you appeared flustered and disorganized when questioning witnesses.
Expect the unexpected. Trials have only one certainty: Something unexpected will happen. A witness will change his testimony. A new piece of evidence will be found. A judge will render an unforeseen ruling. Be ready for that surprise. And, be flexible and nimble.
Extensive preparation will help you take in stride the inevitable unexpected turn. It will help you understand the redefined evidentiary landscape, allowing you to pivot gracefully in response and keep your poise in front of the jury.
The jury is always watching. Before becoming a lawyer, I was a high school science teacher. One of the great teachers in my life—a professor in my education coursework—was fond of telling us, "You are always teaching them something." His point? Students would constantly be watching us. Our curriculum wasn't limited to our lesson plans, and our instruction didn't begin and end with the stroke of the bell. We were teaching from the moment we walked into the school each morning until the moment we left at the end of the day.
My professor could have been talking about lawyers' interactions with juries. Always think about what you are communicating to the jury, because you are always communicating something. For example, my first jury trial was a civil rights case brought in an Illinois federal court by a prison inmate against several prison guards. My client had been convicted of a "Class X" felony, the most serious type of crime in Illinois. Under the court's pretrial rulings, the defense could impeach my client with the felony conviction, but could not elicit any testimony about the seriousness of the conviction and underlying conduct.
Nonetheless, when my client took the stand, defense counsel asked if he had been convicted of a "Class X" felony. I shot out of my chair with an objection. The judge sustained. And my client didn't have to answer. But if the jury hadn't inferred the answer from defense counsel's question, it certainly could have done so from the swiftness and vigor of my objection. A measured, "nothing-to-see-here" approach to the objection would have better advanced my case.
If the jury is in the box and you are sitting at counsel table, you are engaged in advocacy for your client, whether you are addressing the jury or not. Everything you do will be scrutinized by the jury, will influence their perceptions of you and your client and will impact your case.
Know the importance of resolving issues outside the jury's presence. Because the jury is always watching, great trial lawyers avoid raising issues in front of the jury when the ensuing colloquy might prejudice the client's case.
For example, in the same trial opposing counsel objected to my line of cross-examination as irrelevant. The objection allowed me to explain the relevance to the judge—but, more importantly, to the jury as well. Essentially, I gave a mini-closing argument, highlighting the significance of the testimony and the conclusions that the jury could draw.
By resolving such issues outside the jury's presence, a lawyer can minimize the risk that an objection will focus the jury's attention on unhelpful evidence, giving it outsize importance in the case. The best lawyers will anticipate these issues and ask the court to address them in pretrial motions, before the jury enters, or after the jury retires. Failing those options, a lawyer might ask for a sidebar to address an issue. But note, that option could leave the jury with the impression that you are hiding something.
Ultimately, the best trial lawyers don't give opposing counsel the opportunity to narrate their theory of the case in real time. They control, as best they can, what the jury sees and hears.
Be authentic and have fun. When trying a case to a jury, nothing matters more than your own credibility. And nothing destroys credibility faster than inauthenticity. As you craft your strategy and develop your style as a trial lawyer, remain true to yourself.
Finally, have fun. You only get to try your first case once.
Eric Nitz is a partner at MoloLamken. He represents individuals and companies in white-collar criminal investigations, congressional investigations, and regulatory matters. He has also argued appeals in the D.C. and Federal Circuits, and has briefed appeals in the U.S. Supreme Court and numerous courts of appeals.
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