Mastering the Hostile Witness

There isn’t a trial attorney around who hasn’t encountered a hostile witness. By “hostile,” I don’t just mean “adverse” — I mean openly HOSTILE. Like the witness who can’t wait to get into the ring and go a few rounds with you.  In fact, we could call this witness the “fighting witness”  – since that’s really what this is — a witness who wants to brawl with you on the record. When I train attorneys across the country on deposition …

Attorneys Behaving Badly: Speaking Objections

When I work with law firms around the country on deposition training, there is one question I get repeatedly from new attorneys and veteran lawyers alike: How do you stop an attorney from making speaking objections? Speaking Objectors — “S.O.’s” as I refer to them — are essentially deposition bullies.  They do whatever they can to muck up your record and coach their witnesses so they’ll perform better than they otherwise would.  S.O.’s become more obstructive the closer you get …

9 Secrets for Using Video Depositions That Every Trial Lawyer Should Know

Of all the discovery tools you can use to win your case at trial, none is more powerful than the video deposition. In virtually every case I’ve tried in the last 20+ years, deposition video has figured prominently in my presentation.  I know from speaking with hundreds of jurors and from testing video in jury focus groups, that an important video deposition excerpt can have a determinative effect on a trial Whether you are using video affirmatively at trial or …

When Your Deposition Witness Won’t Stop Talking

Every trial lawyer has taken a deposition of a witness who talks too much. Sometimes the witness supplies additional irrelevant details.  Or answers indirectly where a direct response would be more desirable. And adds their opinion when it wasn’t requested. Or tells you what they think you are trying to get out of them, even if your question was about something different.  Or sorts out their thoughts and reflects on alternative answers out loud on the record — while all …

Does Your Jury Trial Need a Haircut?

Remember when you got your first haircut? You probably didn’t want to do it.  Someone likely made you.  You resisted it, because it was a new experience.  It felt dangerous and scary. But in the end, you looked amazing (don’t be modest, now, you know you looked amazing)! When it comes to trial practice, litigators can sometimes be like kids getting their first haircut.  They don’t want anything to be cut or trimmed.  Trial lawyers will often doggedly hold on …

Jurors Want to See Your Inner Explorer

You’ve heard it before:  “As a trial attorney, you should be a Guide to the jury, mapping out a path to the evidence and showing the jury how it can find in favor of your client.” But, is being a good “Guide” enough to get you to the finish line with the verdict you want? It’s true that jurors appreciate a well guided path to the evidence. They like when attorneys map out a route, promising evidence in an Opening …

Getting Bigger and Better Damages

Separating liability from damages and leaving the damages presentation to the end of their case.  It’s important to weave damages — especially evidence supporting claims for emotional distress damages — throughout your case. It’s an easy mistake to understand after all — as attorneys we’re trained to prove the elements of the case, and those elements are separated into elements of liability and damage. However, jurors widely believe that plaintiffs exaggerate their harm in order to get a larger award …

Jury Selection is a Sticky (Note) Process

About ten years ago, I was becoming a little frustrated with the rapidity of the jury selection process in my court.  In my court, we are often given only a few minutes to assemble our list of peremptory strikes.  The process takes place usually with the prospective jurors seated in the gallery waiting, so the judges don’t want us to take too much time. When it came time to select a jury at the close of voir dire, I found …

The Top 10 Voir Dire Mistakes That Make Jurors Dislike You

Voir dire is your chance to determine which prospective jurors are qualified to sit on the jury in your trial.  Regardless of whether you do the voir dire yourself or the judge does it, voir dire is a terrific opportunity to develop rapport with jurors and make them feel comfortable in your presence. Don’t squander that opportunity by creating barriers to that rapport or by making jurors like you less!   I’ve complied a list of the Top 10 Mistakes …