5 “Big Picture” Trial Tips for Your Next Trial
There are many important and valuable trial tactics and techniques. You can and should read books on the subjects and attend seminars too. Here are 5 “big picture” tips to remember before every trial:
1) Be yourself. Figuring out who you are learning your place in this world is a journey that lasts a lifetime. But along the way, if you are engaged in the journey, you will discover and rediscover who you are. Knowing yourself, accepting and loving who you are, for all your strengths and weaknesses, is a most essential part of knowing and understanding others. And for that reason, it is an essential part of being a trial lawyer. Juries discern sincerity. And, in my view, it is impossible to exude sincerity unless you are comfortable in your own skin. Sure, trying cases is nerve wracking, but in a courtroom, in the presence of a jury, you have to be yourself, speak with your own voice, and argue from inside your own heart. From there, your jury will see you as a real person. Only a real person conveys sincerity. Unfortunately, for most of us, our time spent in law school and in the corridors of most American law firms stifles individuality and self-discovery. Be yourself. Be who you are. Strive to do this every day of your life, so that when you stand before the jury, you are a real person who can transcend the stifling formality of American courtrooms even while you pay the utmost respect to the Courts before whom you practice.
2) Be prepared. This goes without saying. You can’t try a case well unless you know the case, both the facts and the law, and what your precise goals are. Nothing can replace good preparation.
3) Keep it simple. Many of our cases are complex, forcing us to learn new areas of medicine or engineering. The technical jargon and body of knowledge is exciting to learn. But don’t be so excited that you want to show off your knowledge. The mission is to keep it simple, but not be simplistic. The great trial lawyers are able to synthesize complex material and teach it to an uninitiated jury in a way that excites them and informs them without overwhelming them. You are not trying to impress the jury with your intelligence. You must be there to guide the jury in a way that shows utmost respect. Treat it as an educational partnership you are entering with the jury. The goal is true understanding. By the same token, sometimes our cases are not complex at all. They can be quite simple. Resist the urge to over complicate the simple case in an effort to make it seem more important. Simplicity is always better than complexity. (This advice applies best to the plaintiff’s trial lawyer. As Rick Friedman likes to say, the defense lawyer’s friend is complexity, confusion, and ambiguity. But that is a different topic altogether!)
4) Trust. Have you ever expected someone to trust you even though you don’t trust them? Probably not. Trust is a two way street. You have to give it to get it. The overwhelming majority of jurors, especially those who make it through voir dire, want to do the right thing. They are intent on following the law and dispensing justice. They should listen to you and give you a fair shake. But they also should listen to the other side’s arguments. That is their job and what they are sworn to do. Don’t ever forget that. Trust jurors and give them the freedom to weigh both sides. Empower them, in your own head and heart and externally in what you say to them, to listen to all the evidence and render a fair verdict. This is the only way to gain their trust and to persuade them in the righteousness of your case. Trust also leads to respect, so when you are teaching and guiding, as per 3, above, if you trust your jury you will naturally enter the joint venture of learning with them, as opposed to patronizing the jury or talking down to them, or at them, as opposed to with them. Trust is a critical aspect of trying cases.
5) Keep your sense of humor/have fun. No, jury trials are not a vacation. Far from it. They are exhausting, hard work, and stressful. But the courtroom is an exciting place and most of us who have chosen this line of work did so because we dreamt of trying cases. We like it. We think it is fun. So, lighten up. Keep your sense of humor, and remember to have fun. Jurors appreciate that you are a human being, and a lighter attitude on your part will translate not only to a more affable demeanor, but will keep you more aware of your surroundings and better able to think and act on your feet.
Good luck in your next trial! I hope these five tips help you like they help me.