Congratulations, you have just been given your first courtroom assignment. It is finally time to pull your head from your research assignments, get unlocked from the chain attached to your desk and venture out into an actual courtroom. You might find that your excitement is quickly tempered, however, by two words that make your pulse race: Now what? This article will provide some helpful tips on preparation and advocacy skills, directed to the younger lawyer but useful to lawyers of all ages, that can help you look and feel like an experienced litigator. Many of the skills discussed will be useful for handling your first deposition or oral argument as well, but trial skills will be the focus.
There are many books dedicated to building trial advocacy skills and everything cannot be addressed here. I will attempt to provide practical advice about some of the added hurdles that young lawyers must clear during a jury trial. Simply put, be prepared, be a passionate and zealous advocate without appearing to be too excited, and never be afraid to ask for advice and guidance from your more experienced (read: older) colleagues.
Preparation is the most important factor in being a successful advocate. How prepared you are is one of the few variables in a trial over which you actually have control. What to prepare for and just how to prepare, though, are questions many lawyers need some assistance answering. When it comes to trial work, what you as a young lawyer need to be prepared for depends on just what you are being asked to do. Are you second-chairing a more senior associate or partner or are you the lead attorney? If you are the lead attorney, will you have an associate or partner assisting you or are you flying solo? Knowing your role and what responsibilities your co-counsel will take on, if any, will help you prioritize your preparation of the case itself. Advocacy preparation must be high on your priority list regardless.
One of the most important advocacy habits that you as a young lawyer must develop is to always act like the jury is watching and evaluating you. They are. Your client is on trial, that is true, but there will be plenty of moments during the course of the trial where the jury will only be paying attention to you and your opposing counsel. Your courtroom behavior will affect their impression of you and, by extension, your client and your client’s case. Your courtroom attitude or decorum must begin before you get into the courtroom.
I received some advice a few years ago from an experienced attorney to consider that everyone walking into the courthouse could be a potential juror and to treat them with the utmost courtesy. Ideally, we all treat each other, strangers and friends alike, respectfully. However, even if you are not a curmudgeon like me, it is easy, especially when focused on an upcoming court appearance, to forget to smile or hold a door, or let someone out of the elevator before us. Courteousness is a simple tip that applies both outside the courtroom and inside.
Courteousness to the court staff and opposing counsel is also extremely important. The importance of interacting respectfully and politely with the court staff cannot be understated. First, if you want to wager that these ladies and gentlemen do not talk to the judge, do so at your own peril. Second, the staff can offer you helpful insights regarding a judge’s preferences about courtroom behavior, scheduling breaks and other useful pieces of information. Third, again, the jury is watching. If you appear rude or inconsiderate and a juror sees it, you can rest assured that he or she will relay that information to his or her fellow jurors and, while your case might not be over, you will have dug yourself a hole and when deliberations begin, you will already be behind.
When dealing with opposing counsel, it is also important to be courteous. You are adversaries and I do not mean to suggest that you should appear to be “chummy” with your opponent in front of the jury, even if you are actually friends outside of the courtroom. You should, however, always be polite and appropriate in your interactions with your opponent. You should speak only to the judge, not opposing counsel, when making an argument or making or responding to an objection. You can be a zealous advocate for your client and courteous at the same time.
Courtesies and politeness are important, but they do not come before zealous advocacy. There may come a time, during the course of a trial, when a judge will make a ruling that you believe is incorrect or even appealable error. As a young lawyer, it is understandable if you start to focus on keeping the judge happy and being deferential, but you have to remember that your duty is to your client first. If you need to ask the judge to be heard on an objection so that you can preserve an issue for appeal, or simply if you think that the issue needs more discussion, you cannot be afraid to state your position. Do so respectfully and then, if you are reprimanded for representing your client, wear it as a badge of honor. As an attorney, representing clients, fighting for their rights and speaking for them, you truly have an honorable profession. Carry yourself accordingly.
If you prepare thoroughly, you will find it far easier to carry yourself as an experienced, competent litigator. If you are a young attorney, carrying yourself this way is even more important. From the moment the first panel of prospective jurors is brought in for jury selection, you will face an age bias that your more senior colleagues do not face. If you are prepared, you can counteract this bias and overcome it. If you are unprepared and appear flustered, however, this will be multiplied. Take the age difference between you and your opposing counsel and multiply that by 10, and that is how much less prepared you will appear to the jury based on this bias.
“Failing to prepare is preparing to fail.” That quote has been attributed to both the great minds of Benjamin Franklin and the Wizard of Westwood himself, John Wooden. Whoever said it, truer words have never been spoken. If you are sitting second chair to a partner or senior associate who is acting as lead counsel, find out your responsibilities and then prepare with the vigor and thoroughness that you would if you were in the first chair. I have guarded exhibit lists that I prepared, with the assistance of great support staff, at almost comical extremes. I did that because, for those particular trials, my main responsibility was to have ready whichever one document of our hundreds of exhibits was requested by the lead attorney (and, on a few proud occasions, a document that was not yet requested but helpful). My point is, regardless of your task, you must be prepared.
If you are trying your case alone or taking the laboring oar, you should be prepared for every stage of the trial. When preparing for jury selection, write out your questions (even if you are not required to submit them to the court in advance) and practice them. Jury selection is your first opportunity to interact with your jury — do not waste it. You should take charge of the courtroom and ask your questions. You also must be prepared to listen to the answers and, if necessary, follow up with the prospective jurors.
Having someone assist you with this process, making notes and observing the panel, is extremely helpful, but if you do not have that luxury, prepare to take your time and do a thorough job of questioning these individuals who hold the fate of your client’s case in their capable, but potentially biased, hands. Also, do not be afraid to inject some personality into the process. You want the jury to have a pleasant first impression of you in addition to thinking that you are very prepared and competent. (As an aside, if you are like me and have had your personality unfavorably compared to the wet mop dripping in the corner, you will need to prepare to turn on a little extra charm.)
Preparing for the various stages of the trial that will follow is no less important. When you are preparing your opening statement, your questions for your witnesses, your cross-examinations and your closing argument, you must always remember your case and your audience. Preparing a theme for the case and structuring everything to serve that theme is a useful method of crafting statements and questions. Ask yourself, “How does the answer to this question advance my theme?” If the question does not help your theme, why should you ask it?
When you are preparing your questions for your witnesses, anticipate all the possible objections and make sure you have a response ready. It is unlikely that you will win all objections, but at least you will be prepared to argue. Regarding objections, whether you are successful or not, either in responding to an objection or raising one, simply proceed accordingly. What I mean is, do not throw your hands up like you just hit the game-winning shot or stop and pout like someone stole your milk money. You must be a zealous advocate but remember that if you make too much of an unfavorable ruling, you run the risk of waking up that sleeping juror and having that be the only thing he remembers about that particular witness’ testimony.
It cannot be overstated: Do not forget the jury during the meat of the trial. They are still there watching, listening (hopefully) and evaluating. They will be evaluating the evidence and the advocacy. You will benefit by speaking in words everyone can understand and trying to avoid the dreaded “sounding like a lawyer.” I could spend another 1,500 words on this topic, but I will sum it up with this sentiment: No witness has ever “first had occasion to observe the plaintiff”; what a witness did was “saw Mr. Smith for the first time.” Advocacy is about presenting your client’s case in a clear and concise manner, aggressively and vigorously, all while remaining calm and respectful to the court and your opponent. Simple, right? When you are given your first trial assignment, prepare and then prepare some more, and relax, it isn’t like this is your client’s only day in court … oh, wait, it is. So prepare, fight hard, keep your chin up and win.
Jonathan B. Acklen is an attorney with the law firm of Cohen & Feeley. He fights daily for victims of negligence in the areas of automobile collisions, medical malpractice, products liability and other practice areas. He also represents clients in the mass torts arena, including assisting the firm in its representation of a large number of DePuy ASR plaintiffs.