NW Lawyer - February 2013

Young|New Lawyers
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. 3 The 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 understand.

“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
trials.”
— Irving Younger, Esq. 1

Daniel: [pondering] No.

Miyagi: Then why train?

Daniel: [thinks] . . . So I won’t have to fight.

Miyagi: [laughs] Miyagi have hope for you.

— 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 MIL practice. 5

Building Good Relationships with Opposing Counsel

Daniel: So, karate’s fighting. You train to fight.

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.

Voir Dire

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 voir dire. 6

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.