After recently finishing an age discrimination trial, I was primed to read a Nov. 5, 2013, blog post by Ken Lopez, the CEO of A2L consulting, “7 Things You Never Want to Say in Court.” Here are the first four of his suggestions, followed by four of my own.
No. 1: “My client.” Banish this phrase, argues Lopez. Look at how it distances the jurors. He writes that attorneys should humanize our clients. For defense lawyers, I suggest trying this, “Make no mistake about it. The plaintiff is not accusing a company of discrimination, he is accusing [name of manager] of doing so. He did not.”
No. 2: “Put yourself in his shoes.” This is known as “The Golden Rule” in jury trials, but it’s really more like tin. So, Lopez writes that lawyers should avoid statements like, “Reward my client as you would want to be rewarded.” Not only is this language ineffective, it can lead to reversible error. My advice: Let the equities of the case speak for themselves. Jurors like to come to their own conclusions, not have an attorney foist conclusions upon them.
No. 3: “Looking at the next bullet point.” Do not—repeat, do not—put up a slide with several bullet points on it. Lopez nails the problem: The jury “will read ahead and not listen to the lawyer”—just like in school.
My solution: Lawyers should learn to use software that lets them roll out one bullet point at a time. It prevents jurors from reading ahead, and it introduces motion and action into what otherwise is a static visual aid. Follow the same advice with timelines. Build the slide as you tell the client’s story; doing so is creating it together with the jury.
And here’s a corollary: It is OK to pull out and highlight a section of a document, as long as you tell jurors they can see the entire document during deliberations. Otherwise a juror may conclude that the lawyer is trying to hide something that is important and is dealing from the bottom of the deck.
No. 4: “Your honor, could I please have a moment to sort out this technical issue?” This is the kiss of death. Lopez’s advice: With preparation, technical glitches are almost always preventable. I agree. Look, lawyers spend a lot of do ri me in discovery, but they often skimp and go it alone at the trial.
Do not do so. Learn to use the technology. Do you think younger jurors are going to find an attorney credible if he can’t run technology that’s as familiar to them as their video games?
If you can’t or don’t want to learn how to use the technology yourself, hire a tech person to run the video clips, unfold the slides and do what tech people do better than most attorneys can.
Finally, never rely on just one way to do things. Always have a backup plan. The Marine Corps teaches: If you have one, you have none.
No. 5: “And then you called my client a [expletive deleted].” Lawyers should never let the bad word(s) leave their lips—ever.
Let me tell you a story. I was defending a discrimination case at trial. During the plaintiff’s deposition, she recounted a time when her manager was counseling her on her performance. She admitted calling him a “motherf—–.” (The manager told me in depo prep that he recalled her using a less nasty word, but, in litigation as in life, we take what we can get.)
At trial, I structured the question so that she said the word, not me. Let the shock value of profanity attach to the opposing party who originally used the word, not to you or your client.
No. 6: “Can you be fair?” This question is useless in voir dire. Here’s why: This morning, I looked in the mirror while shaving. Each person, including yours truly, believes himself to be skinnier than the scale indicates, to have more hair on his head than the barber would report, and to be more strikingly handsome than the camera would record. The same is true for fairness. We all think we are more fair than we truly are. Do not ask jurors if they can be fair. They all—even those you strike for cause—believe they are scrupulously fair.
No. 7: “Objection, nonresponsive.” Questioning during a deposition is different than questioning during a trial. Making this objection when quizzing an adverse witness makes a lawyer look weak in the eyes of the jury. Worse, the judge will not grant the objection, making the lawyer appear to the jury to be incompetent. The judge will simply say, “The jury can determine the credibility of the witness.” My suggestion is to tell this to the witness: “I appreciate your answer, but my question was actually XYZ. Can you answer that?”
No. 8: “Strike that!” I love the diligence of court reporters. They take down every word. So, telling them to erase a question or statement is, well, pointless. The lawyer said it; the reporter recorded it. End of story.
By the way, I’ve been in breach of one or more of these rules. But go ahead and try the case, focusing on what you say, not focusing on what you should not say. Sooner or later, experience teaches lawyers to winnow out these phrases, to adopt a vocabulary with which we are comfortable, and to speak to others (and ourselves) in a language we can all understand.