The Winning Litigator®

Jurors Want to See Your Inner Explorer

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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

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What's one of the biggest mistakes made by attorneys seeking 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 ...

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! The Top 10 Voir Dire Mistakes (complete w/ Index ...

Jury Communication: 10 Tips to Make Sure the Jury Takes the Right Notes

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Most judges allow jurors to take notes during trials. At the commencement of the trial, the jury is handed small notepads and pencils for note taking. The judge also typically gives the jury some basic administrative instructions about what to do with the notebooks when they are finished each day. Once those notepads are handed out, though, the jurors are largely on their own in terms of determining what to write down and when. Ideally, jurors will write down any ...

Do this Before You Approach the Witness

In our lives as trial lawyers, we are often required to approach witnesses on the stand. Judges typically safeguard the space between attorney and witness — as sort of a demilitarized zone. As early as law school trial advocacy class, students learn about the important custom of asking the court before approaching the witness. I confess that I have always secretly resented the idea that I should request permission before I can approach a witness. Though I understand why judges …

This Simple Statement to the Jury Will Help Win Your Jury Trial

Your goal is to win your jury trial. And the road to the verdict is fraught with anxiety. Of course, the attorneys and clients are anxious. Witnesses are also anxious. Courtroom personnel are often anxious. It might surprise you, though, that the members of the jury are anxious too. The jurors are concerned about following the evidence, and whether they will be tested regarding their understanding of legal terminology. They are worried they will appear less capable compared to other ...

At a Jury Trial, the Jurors are Watching . . . You

Justice may be blind, but the jury sees everything. After winning a verdict in a recent three-week trial, I had the opportunity to speak with members of the jury. One of the things they told me was that they had grown skeptical, even distrustful, of my opposing counsel. When I asked why, they all referred to a brief incident they witnessed in the courtroom. Jurors Scrutinize Attorney Behavior My opposing counsel was getting ready to question a witness, and -- ...

In Presenting Evidence to the Jury, Trial Exhibit Numbers are Crucial

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As litigators, we strive to present evidence clearly to the jury, so they have the necessary information to render a verdict in favor of our client. We want jurors to hear a trial exhibit number, and then write it down, so they can refer to it in their notes during deliberation. Although this seems like an obvious proposition, I'm surprised how few litigators pay attention to highlighting exhibit numbers in their presentations for jurors. Let Jurors Know the Trial Exhibit ...

Make Industry-Specific Details Clear to the Jury

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One of the most difficult types of trials that I've wrestled with is what I refer to as the “Insidery Trial”. What do I mean by the “Insidery Trial”? It’s a trial where documentary evidence or testamentary evidence involves industry or company specific details that have the potential to be overwhelming or confusing to jurors. For instance, in a case involving a corporation where forms and documents use acronyms abbreviations like ACC, DVT, QTR, ARP, BDC, etc., and which terms ...

In Cross-Examination, Using the Right Tone is a Key to a Win

I’ve never met a trial lawyer that dislikes cross-examination. Cross-examination provides an opportunity to question evidence put forth by the opposing party. A strong cross-examination can make or break a case. Jurors wait for cross-examination. They’ve seen television shows with dramatic cross examinations: a witness testifies…then, the attorney pounces! As trial attorneys, we spend a good bit of our preparation time thinking about how we will pounce. One difficulty attorneys face carrying out strong cross-examination is how to use the ...