On 20 Jury Trials
by Alexander F. Ransom
We’ve all felt it: the nag- ging desire to maximize our potential, and
sooner rather than later.
That same ambition grinded us through law school
and carried us through the
bar exam. Unfortunately, for
young trial attorneys, it’s more difficult
than ever taking cases to juries. The number of civil trials in the 75 largest counties
in the U.S. decreased by approximately 47
percent between 1991–2001.2 The same
trend is occurring in criminal law.
reasons? Jury trials are becoming more
expensive; alternative dispute resolution
forums such as ADR, mediation, and arbitration are gaining popularity; and litigants want to avoid paying the high costs
of pretrial preparation. Problematically,
young attorneys suffer dearly from this
change. If the trends continue, it might
be the case that a mere handful of future-generation attorneys will be capable of
competently conducting trials.
Consequently, trial experience matters. So the question becomes: how much
experience is necessary? Why does legendary trial attorney and law professor
Irving Younger say that 25 trials separate
the experienced from inexperienced attorneys? Having conducted 20 jury trials
in my seven-year career, I’m beginning to
“And while I can’t prove it,
and each of us may have
a different idea, my sort of
guesstimate as to the req-
uisite experience is 25 jury
— Irving Younger, Esq.
Daniel: [pondering] No.
Miyagi: Then why train?
Daniel: [thinks] . . . So I won’t have to
Miyagi: [laughs] Miyagi have hope for
— The Karate Kid, 1984
Motions in Limine
Back to the battlefield. Early
on, I realized opposing counsel set traps and hobbled my
strategies with effective Motions in Limine (MIL) practice.
Unfortunately, many attorneys
overlook this area. Effective
MIL practice forces opposing
counsel to control their witnesses, prohibits discussion
of suppressed information,
and prevents “below the belt”
attacks. But remember, MILs
apply to all parties. Even if you
“accidentally” violate your own
MILs, you risk opening the
door for opposing counsel to
admit evidence/testimony that you successfully suppressed. You also risk getting sanctioned. Watch your mouth and
instruct your witnesses to do the same.
Finley and McGuire’s Washington Motions in Limine is an excellent resource
providing up-to-date case law for effective
Building Good Relationships with
Daniel: So, karate’s fighting. You train to
Miyagi: That what you think?
Theoretically, trial practice should
improve relations with opposing counsel
in order to avoid litigating future cases.
Case in point: I once conducted a serious
felony drug trial against an experienced
prosecutor. My client faced cocaine
possession and witness intimidation
charges. I expected an ugly, bloody war,
but unexpectedly, our trial was extremely
cordial. As I relaxed, I saw legal openings and heard objectionable testimony
that I normally wouldn’t see or hear. The
jury acquitted the most serious charges.
I parted on a high note with opposing
counsel. Undoubtedly, we’ll settle future
cases much easier.
Remember, “The supreme excellence
is not to win a hundred victories in a
hundred battles. The supreme excellence
is to subdue the armies of your enemies
without having to fight them.”
4 Most cases
settle without trial. Therefore, use trials as
opportunities to build bridges. Even your
victories are meaningless if relations fail
to improve afterward.
Jury selection is hard. At worst, it’s an
awkward attempt at conversation verging
on meaningless. And there’s little time —
usually 30 minutes per side in criminal
trials — to pick “good” jurors and eliminate “bad” ones. And yet its importance
is monumental. Some experts believe 85
percent of cases are won or lost during
Connect with jurors quickly. If they
like and trust you, it gives them permission to like/trust your client. Discuss
your case theories. This is perfectly allowable in jury selection; after all, you’re
trying to eliminate biased jurors. It also
educates the jury pool. Relax when “bad”
jurors talk. Instead, watch other jurors’
reactions. Do they agree or disagree?
Make “bad” jurors dig themselves into
trenches of bias. Excuse them for cause.
Finally, don’t focus too much on “good”
jurors. Instead, rehabilitate them to withstand challenges for cause.