gument, it’s often not enough if your
client doesn’t resonate with the jury,
especially in close-call cases. On the
other hand, a wonderful client covers
a multitude of deficiencies and can tip
the scales in your favor.
Therefore, long before trial begins,
honestly appraise your client. What are
his or her personal strengths and weak-nesses? Build your case around these
factors. In my trial, my client had volunteered much of her time to worthy
causes, so I made sure we talked about
this at trial. In retrospect, however, I
would have spent even more time having
her share her background with the jury.
This discussion may not be pertinent to
show why she is entitled to prevail under
the law, but it is important in terms of developing a connection. If the jury doesn’t
relate to your client on a personal level,
they will be far less inclined to interpret
the law and facts in your client’s favor.
Preparation Is Inseparable from
Winning in the courtroom is, according to Gerry Spence, author of Win Your
Case, not so much a reflection of the genius of the lawyer but of that lawyer’s
preparation. Spence’s advice is sound:
Good preparation is essential to a successful trial because it is impossible to
separate competence from preparation.
And by preparation, I’m not talking
about that frantic whirlwind of activity
that occurs in the weeks leading up to
trial. I’m talking about starting early
and focusing from the beginning on
what really matters.
To sharpen your focus, draft a tentative set of jury instructions before filing
your lawsuit or answer. Many lawyers
wait until the last moment to draft jury
instructions. I’ve even heard of lawyers
doing jury instructions after trial begins! This is backwards. Starting with
jury instructions makes more sense
because having a clear idea of what you
need to prove helps you know what you
need to accomplish during discovery.
With trial months away and the
jury nowhere in sight, some lawyers
go through the motions when it comes
to discovery. For instance, depositions
bore some lawyers. I never understood
this. The jury will eventually become
acquainted with what happened in dis-
covery. That’s why I take discovery as
seriously as if it was happening in front
of the jury. And that’s why I told my cli-
ent that the trial actually started during
Appreciate Your Staff
The vast majority of lawyers do not do
all of their own legal work. They have
help from staff, including paralegals.
Appreciate your staff. If you take your
staff for granted, either they will eventually leave or you will fail to get the
most out of them.
A good paralegal can be the difference between a bearable and unbearable
work life. Good paralegals support their
attorneys in navigating the logistical
obstacle course that is litigation. They
have valuable insights, make a great
sounding board, help you avoid mistakes, and communicate with your clients, often more effectively than you do.
In my first trial, I was fortunate to
have the assistance of a very competent and experienced paralegal, Pam.
Pam had been around the block and
she helped make my first trial experi-
ence smoother. Besides coordinating
the witness schedule (and I had ap-
proximately a dozen witnesses), she
provided valuable feedback, both dur-
ing discovery and at trial. I geared my
in-trial presentation to Pam. If it didn’t
work with her, how could I be justi-
fied in thinking it would work with the
jury? Sometimes I lost objectivity. Pam
helped me get it back. Your paralegal
can do the same, so regularly demon-
strate your appreciation.
Trial practice, civil procedure, and
evidence courses in law school are all
about the intellectual side of trial. My
first jury trial, however, taught me just
how important the human element is.
It’s a lesson I won’t forget. NWL
is a sixth-year
attorney and is
LLC, in Ferndale.
Contact him at
705 Second Avenue
Advancing Freedom Justice
and Equality for 60 years
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