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“All rise,” cries the courtroom deputy, as the courtroom clock inches its way past 9:30 a.m. and the judge fiddles impatiently with her gavel. This time, however, after six, eight or 10 years of drafting motion papers, fighting over the 86th interrogatory and worrying about whether all your time sheets are done, the deputy’s command does not simply signal the start of the court’s motion or preliminary conference calendar, but the jury’s entrance. This is your first jury trial. You glance over nervously as the retired Parks Department employee from Riverdale, the struggling actor and office secretary from Chelsea and the dentist from White Plains take their seats in the jury box, along with the other jurors. Though the practice of law continues to become more specialized and trial opportunities remain few and far between for many attorneys for reasons out of their control, a jury trial remains the pinnacle for many litigators. Even with all the countless hours of meticulous preparation we put into getting ready for trial, jury trials involve some different traditions and surprises for new trial attorneys. Here are a few observations, lessons and suggestions. ‘VANISHING TRIAL’ SYNDROME Younger attorneys frequently find themselves listening to older litigators’ war stories about their first few trials, which they all seem to have done in the first five or six years of their practice. Upon hearing these tales, you find yourself worrying why you have not even seen a verdict sheet or set of jury instructions. Though litigators should always seek out trial experience, the problem is likely not your lack of initiative, but the “vanishing trial” syndrome. Between 1985 and 2002, the number of federal court civil trials fell by more than 60 percent, with the number of civil cases disposed of by trial dropping from 4.7 percent to 1.8 percent. The rate at which cases are resolved by trial has fallen so quickly that there were fewer trials in 2002 than in 1962. There is no reason to believe the trend in state court is any different. Multiple explanations have been offered for the fall in the number of jury trials. Whatever the cause of the decline, the trend has triggered enough concern that the American Bar Association’s Litigation Section has actually started a Vanishing Trials Project. One disturbing result of this syndrome is that a smaller number of attorneys are getting trial experience, which has implications for professional development and the extent and quality of client service attorneys will be able to offer. Most litigators will not have a practice that involves repeat trials. Nevertheless, putting a witness on the stand and thinking about related evidentiary issues, or considering how and when to impeach a witness on cross-examination, are important for multiple non-jury trials tasks, whether an evidentiary hearing in bankruptcy court or a bench trial before an administrative law judge. JURIES NOTICE EVERYTHING Collectively, six or 12 people sitting in a jury box watching trial proceedings constitute an impressive force. A piece of evidence missed by one juror will be remembered by another. Conduct by trial counsel one juror misses will be picked up by another. Acting professional and being prepared is obvious enough. Less obvious is what the jury notices when you are not examining a witness or giving your closing argument. Minimize discussion at counsel table. You may get distracted during days when you do not have witness or other trial responsibilities. Resist the temptation to talk or pass notes at counsel table about exhibits for your next witness or the incomprehensible question opposing counsel just asked. At least one juror will notice. The same rule applies during trial breaks or before or after the trial day. Watch what you do whenever you are near jurors. Do not make the jury wait by being late to court. Do not let jurors hear you make fun of opposing counsel in the bathroom, or believe you are disinterested in the trial when their family and work routines have been disrupted by jury service and they must focus on the same boring testimony or repetitive lawyer argument. I will never forget walking to the courthouse and noticing members of the opposing trial team get out of a limousine with a personalized license plate broadcasting the lead trial lawyer’s profession. My immediate thought was, “Boy, I hope the jurors see that.” Though an extreme example, the point is simply that you must be on guard and professional at all times when you are in the vicinity of the jurors. You should assume that nothing gets past the jury. WATCH OPPOSING COUNSEL Apart from watching your conduct around jurors, watch opposing trial counsel. If they are seasoned trial attorneys, note the little things they do during witness examinations to connect with the jurors and consider adapting what you like to your own style. Watch how more experienced trial counsel first say “Good morning” to the jury if they are the first to conduct a witness examination that day, or “Good afternoon” if they are the first to go after lunch. If counsel knows it is the birthday of a witness he is about to examine, he might begin, even on cross, by wishing them happy birthday. This is not the stuff that wins trials, but it never hurts to show your humanity before the jury. Also, watch how more experienced trial counsel spice up their witness examinations to hold the jury’s attention or emphasize points. Where they are not required to remain near a lectern, they will move around, asking some questions near the jury and some near the witness. They will frequently use paper and an easel or PowerPoint slides to emphasize key points or documents. Watch how they change the inflection in their voice for the same purpose. Jurors do not mind being entertained a little bit during testimony that might be complex or dull. Many books and CLE courses instruct on holding the jury’s attention through various witness examination techniques. Unfortunately, you must also watch opposing trial counsel for improper conduct. Some experienced trial attorneys who should know better try and connect with the jury through such shenanigans as making inappropriate facial expressions or gestures, suggesting, for instance, that an opposing witness’ testimony should be rejected. They may have a funny habit of turning their chair around and facing the jury during an opposing trial attorney’s witness examinations. Whatever the improper conduct is, you will know it when you see it, and you should inform the judge about it at the earliest opportunity. MIND THE DETAILS There are certain important tasks those in a supporting role at counsel table can do during trial. Keep track of what exhibits have been admitted. Before another trial team member finishes a direct examination, consider what exhibits should be moved into evidence while the particular witness is on the stand. Towards the end of your case, think about what documents have not been admitted that you or the lead trial lawyer may need in evidence to make certain points during closing arguments. Watch how evidence is hitting the jury. Everyone seems to become an expert in non-verbal communication during trials. The slightest facial expression or gesture by a juror will be fair game for dissection during dinner. Comments like, “Did you see what Juror 8 did when Dr. Jekyll didn’t know the answer to your question on cross?” or “Did you see Jurors 1 and 2 talking when you asked the plaintiff about her deposition testimony?” will become part of the trial team’s daily dialogue. Such “tea leaf” reading about the jury frequently turns out to be wrong. Do not obsess about it or let it distract you from preparing for the next task at hand. However, some body language is unmistakable. You do not have to be a licensed psychologist or jury consultant to know when the jury is not getting certain testimony, or when one or more jurors are rejecting a witness. Consider what lines of testimony should be eliminated or reemphasized, or how your trial team might go at a point a different way. PACE YOURSELF Every trial is emotionally and physically draining, perhaps more than any other professional task you encounter as a litigator. You are working seven days a week. You return from a long trial day, but must work another five hours to get the next witness ready. Today did not go as planned: Your adversary’s very effective cross of your witness went a half hour instead of the expected three hours, leaving a four hour gap in the trial that did not please the judge because you did not have another witness ready. Your family decides to go on that long-planned vacation to Mexico without you. The client decided to stop by and observe the trial today. You still do not know the best way from your hotel to the courthouse. You are not sure how much more pizza you can eat before needing a new wardrobe. Pace yourself. Trials develop their own rhythm. You will adjust to your new schedule. There may be days when you do not have witness or other trial responsibilities. Leave early on those occasions and catch some extra sleep. Each trial attorney has a different way of coping with trial stress. Some exercise daily. Though a bit too much “trial team cohesion” for my taste, I have heard of one trial team that had mandatory group workouts during an especially stressful and emotional trial. Other attorneys try and keep life as normal as possible by keeping up with office e-mail, talking to family and friends, or staying in touch with other client matters to the extent they can. Like everything else in your professional life, you will find what works best for you. Though the number of jury trial opportunities for attorneys continues to dwindle, hopefully those who seek some jury trial experience will be able to get it. Jury trials remain one of the most professionally fulfilling experiences available to litigators. The foregoing observations and suggestions may be intuitive or fall under the heading of common sense. They are nonetheless useful to consider for those about to take their place at counsel table in their first jury trial. Harold K. Gordon is a partner in the New York office of Jones Day (www.jonesday.com). The views expressed are solely those of the author and should not be attributed to Jones Day or its clients. If you are interested in submitting an article to law.com, please click here for our submission guidelines.

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