How to Litigate Your First Civil Trial in Massachusetts

How to Litigate Your First Civil Trial in Massachusetts

I. THE FIRST STEP - PLANNING AND PREPARING FOR TRIAL

A. Choosing a Case Theme
Identifying key points or themes is essential to convey your message and to help the jurors process the vast amount of information with which they will be presented. A theme should simplify the case and convey your client's position on the critical issues. The simpler the better. A memorable word or phrase can suffice. The trial lawyer must identify the critical issues in the case and develop themes for each of them and constantly reinforce these themes to the jurors who can use them in processing the information and resolving disputed issues. The best themes resonate with what the jurors already know emotionally, psychologically and mentally and appeal to their sense of fairness. They need to be consistent with basic truths and principles. They cannot be esoteric or complex. Rather, simplicity and immediacy has the most impact. They should focus on people, not legal issues and must avoid legalese. Simple, compelling, human propositions that are consistent with the juror's existing knowledge and beliefs are essential.

Common themes, for example, capture what the jurors already know, such as "people who are in a hurry take chances" or "people who take chances can hurt others". These themes become the focal point for the juror's thinking. These are anchors or reference points that the jurors can use to decipher the evidence. Themes should be developed on both liability and damages.

A sub-category of themes is labels. Labels are simply the way we refer to a specific person or event. For example, in a car accident case, the word "accident" conveys a different meaning than "crash" or "collision". Even the names of the parties can convey a meaning. The word "Peter" conveys a different meaning that "Mr. Smith". Selecting the proper labels for parties, events and issues in the case and making those labels consistent with your theme is essential.

We are all familiar with the use of themes in communication. Nike uses the theme "Just Do It"; fast food chains use the theme "Where's the Beef?". All of these themes use simple, plain language to drive home a message. Themes are everywhere in our thinking and behavior. The title of a book or movie itself can convey a theme or message. TV commercials are ingenious in the way they use themes and labels to convey a message often in as short a time as ten seconds. To win a case, it must be more than a mere fact line or story. Rather, it must have a compelling theme that resonates with the jury and invokes them to action for your client.

Good themes also grab the jury's attention and play into their sense of justice and create drama. To be effective, the theme must do the following:

1. Simplify the facts and issues in the case.

2. Show how disputes need to be resolved and the evidence in your favor.

3. Be consistent with common human experience and knowledge.

4. Don't require that any credible evidence be discarded or any legal principal ignored.

5. Captionalize the entire claim or defense.

6. Are consistent with clear logic.

7. Pull the rug out from under the opponent's case without unnecessary hostility or ridicule.

8. Appeal to the juror's highest sense of fairness, hard work and personal responsibility.

While the source of themes abound and are constant in human nature, common axioms, passages from the Bible, literary works, movie titles, proverbs, slogans, songs, and quotations can be the source of compelling themes.

In a sense using themes is similar to using analogy or comparison. It makes what may be a complex set of facts into a simple analogy or known parable. To be successful, the theme must do at least the following:

1. Summarize the story.

2. Have emotional as well as factual appeal.

3. Paint a visual image for the jury.

4. Be consistent with and blend with the juror's life experience, values and perceptions.

5. Apply classical, rhetorical principles.

6. Accommodate the juror's decision making process and the evidence and accommodate their perceptions.

7. Be consistent with the applicable law and facts.

8. Appeal to a sense of justice and consistent with community values and interests.

9. Have universal application and appeal.

In essence, themes play into the juror's personal frames of reference and reminds them of things they already know and permits them to put the evidence and law within that existing framework.

Ideally, the case should be reduced to one overall theme. However, it will then be necessary to break down the theme into sub-themes to accommodate legal theories, liability, damages or evidential issues in the case.

The best themes merely capture knowledge and principles that the jurors are already cognizant of and living by. Themes often revolve around issues of health, happiness, the values of freedom, fairness, safety, the importance of home and family, pain and tragedy and injustice. They also may revolve around responsibility and duty. Common themes in personal injury cases, for example, include "impatience", "prevention", "indifference" and "haste". Often in product liability cases, themes revolve around "corporate greed" and "consumer safety".

Effective themes avoid legalese and are simple. For example, the O.J. Simpson defense team's theme "If the glove don't fit, you must acquit" was simple and direct. Themes often revolve around issues of accountability and responsibility. Corporate greed is a common theme. "Hired gun" is an example of a label that can be used effectively against opposing experts. Themes of negligence include "a moment of carelessness can cause a lifetime of misery" and similar themes. Product liability cases often revolve around the theme of "an ounce of prevention is worth a pound of cure". The more familiar the theme and consistent with the juror's everyday aspects of living, the more powerful and meaningful.

B. Selecting the Evidence to Use
Witness Selection . Your case in chief is obviously presented primarily through the witnesses you call and the exhibits you introduce. Therefore, you must decide who will be called as a witness, what you will have these witnesses testify to and in what order you will present these witnesses.

Some witnesses simply must be called as they are necessary to establish a prima facie case. However, there may be a number of witnesses who are available to testify on an issue and therefore there are choices. In considering which witnesses to call, the following considerations should be kept in mind:

1. Credibility. Obviously the more credible appearing and truthful and sincere the witness, the more powerful and effective in persuading the jury.

2. Redundancy. Do not call too many witnesses on the same point, or oversell the case. One or two corroborative witnesses is generally all that is necessary.

3. Use strong witnesses. Witnesses who are weak will be exploited on cross-examination.

4. Don't call a witness to prove something that is not important.

5. Don't call a witness unless it is clear that the witness is going to add to the claim or defense and add something substantial to the case and to what you are persuading the jury to.

6. Don't plan on "surprise" witnesses. Strong witnesses should be called early on in the case while the jury is still fresh and minds are undecided.

7. Don't expect to call a surprise rebuttal witness or to make a dramatic impact late in the case as the strength of that witness' testimony may be lost.

Exhibit Selection and Preparation. Certain exhibits will be necessary such as medical records, photographs of the accident scene or property damage or physical injuries, medical bills, key documents, etc. However, a more creative approach should be taken to exhibits so that not only the essential documentary photographic and related physical evidence is admitted but that exhibits are created that would persuade the jury on the issues of liability and damages. Err on the side of creating more visual exhibits rather than fewer. Also, enlargements are critical. Generally, the bigger the better. Color exhibits are more dramatic than black and white. Exhibits must be well thought out both as to what they display but also as to the foundation that will be necessary for their admission. Often this will involve cooperation with one's expert to create exhibits that convey the expert's theory of liability or damages.

Your trial note book should keep a list of all exhibits. The exhibit list will show each exhibit, the exhibit number, the exhibit description, and contain boxes to show the evidentiary status of the exhibit, that is, whether it has been offered, admitted, refused, reserved or withdrawn. For more discussion on exhibits, see Section E below.

C. Outlining and Creating a Trial Strategy.
The difference between merely presenting a case and winning a case is one of strategy. The trial lawyer needs to focus on the case and develop a strategy to win the case. This often involves identifying the key issues and facts and putting them together to develop a theory of the case. The evidence can then be approached as part of a consistent theme. The strategy must obviously be able to accommodate the facts and the law in the case and the juror's common sense and common experience.

After all trial preparation has been completed, the trial lawyer should refine the strategy to accommodate all that transpired. At this point, the trial lawyer has reviewed the litigation file, filed all amendments and supplemental responses to discovery, prepared his witnesses and exhibits, talked with his experts, prepared demonstrative aids and exhibits to illustrate the theory of the case and experts' testimony, issued trial subpoenas, set up a trial notebook with a trial chart, witness list, exhibit list and proposed jury instructions, prepared a witness folder for each witness and an exhibit folder for each exhibit, and prepared the witnesses. Against this backdrop, the theme and theory of the case will emerge, but then needs to be refined and employed for an effective trial strategy.

Strategy is a corollary of the theme of the case. See discussion in Part IA. The theme must be credible and resonate with the jury's common sense and sense of fairness and daily perceptions. All of the evidence, including the expert testimony, must play into this theme. For example, the theme in a negligent motor vehicle case may be that "people in a hurry take chances". On the damage aspect of the case, the theme may be that even "common injuries can sometimes have long standing devastating consequences". Jurors understand these concepts. People know that not everyone bounces back 100% from an injury. People know that people who are in a hurry may take chances. The words you use or labeling should convey this theme. Action words such as "crash", "smash", "thrown forward", "snapped back" convey this meaning, as opposed to "accident" or "injury".

In order for the theme to come alive and the strategy to work, often visual aids will be required. For example, the recreation of a collision through visual animation is compelling. Even the story told by a witness can be effectively presented with action and dramatic phraseology. The strategy must be human and create a dramatic visualization. Theories, themes and labels are the way to implement the strategy. Witnesses will be selected to tell a story and make it come alive in dramatic human terms.

Good witnesses will do the following:
1. They will make the jurors like the plaintiff so that they will want to help him or her.

2. They will be credible.

3. Witnesses other than the plaintiff will be used to prove damages.

4. The witnesses will speak genuinely, simply and honestly.

In addition, all of the exhibits will be directed towards the case theme and strategy of the case. Common exhibits such as photographs, aerial photographs, x-rays, anatomical diagrams, anatomical models, and charts are essential.

One should keep an open mind and keep on thinking about strategy again and again and refining it and shaping it as one talks to the witnesses, prepares exhibits, prepares the experts and focuses on cross-examination of opposing witnesses and experts. An effective strategy will do the following:

1. Develop a persuasive theory of the case.

2. Develop persuasive themes.

3. Develop persuasive labels for people, places and events.

4. Identify the key issues in dispute.

5. Develop important facts on the disputed issues.

6. Be realistic and accomplish realistic goals.

7. Anticipate the opponent's strategy.

8. Anticipate problems and weaknesses in the case.

9. Use storytelling techniques to present facts and evidence.

10. Use persuasive exhibits.

11. Be simple and consistent with the jury's common experience and with the facts and law.

D. Trial Checklist - What to Bring to Trial
1. Litigation Files. Well before trial begins and during the course of a case, a litigation file must be started, which is organized, divided and indexed to provide immediate access to the litigation material as it develops. Trial books are different from litigation files. They are designed to be an organized notebook that provides an outline of the trial and quick reference to the testimony and exhibits that will be utilized during the course of a trial. Preparation and organization are key as the lawyer must appear prepared, confident and professional to the judge, jury, client and opposing side, and must be freed from organizational and logistical issues to focus on the actual trial.

Litigation files are usually divided into several categories and are commonly divided as follows:
1. Court documents.

a. Pleadings

b. Discovery

c. Motions and responses

d. Orders

e. Subpoenas

2. Attorney's Records.

a. Chronological litigation history

b. Retainer contract, bills, costs

c. Correspondence

d. Legal research

e. Miscellaneous

3. Evidence.

a. Exhibits

b. Chalks

c. Witness statements

d. Depositions

2. Trial Notebook.
Organizing materials for trial differs from organizing your litigation file. Litigation files are all inclusive whereas trial notebooks are the actual material that will be used during the course of the trial and need to be organized in such a way that they are consistent with the way that they will be presented at trial. Through the use of new technology and computers, the storage and presentation of evidence has changed dramatically. However, the basic components of a trial notebook nonetheless remain relevant.

Traditionally a trial notebook was a three-ring binder containing appropriately tabbed sections that paralleled the trial process. It might contain sections involving facts, pleadings, discovery and motions in one notebook and then in another notebook witnesses, evidence, exhibits, cross-examination material, and related documents. Commercial trial notebooks and forms are available. A common organizational system is the following:

1. Facts

2. Pleadings

3. Discovery

4. Motions

5. Charts

6. Jury

7. Opening

8. Plaintiff

9. Defendant

10. Closings

11. Instructions

12. Law

1. Facts. This section generally contains a chronology of events, the pertinent accident and police reports, investigative reports and other fact summaries and summary sheets containing summaries of relevant testimony and documents.

2. Pleadings. This section will contain all of the updated and amended pleadings, as well as the prior pleadings, the pretrial order, and copy of applicable statutes.

3. Discovery. Obviously answers to interrogatories and responsive documents, deposition summaries, response to requests for admissions and other relevant discovery will be contained in this section.

4. Motions. Any motions, responses, orders, pretrial memoranda and anticipated trial motions should be placed in this section.

5. Charts. In this section will be the trial chart showing each claim and defense and each element and proof for each claim and defense, a list of witnesses with their addresses and telephone numbers and a list of exhibits.

6. Jury. This section will contain juror information, juror profile outlines, requested voir dire questions submitted to the judge and a copy of the applicable jury selection statutes or rules.

7. Openings. This will contain an outline of your planned opening statement.

8. Plaintiff. This will contain an outline of your direct examination.

9. Defendant. This will contain an outline of your anticipated cross-examination.

10. Closing. This will contain an outline of your planned closing argument.

11. Instructions. This will contain your proposed jury instructions.

12. Law. This section contains the rules of evidence, your trial memorandum, opponent's trial memorandum, copy of key statutes and copy of key cases.

In addition, the trial notebook will then organize and contain everything you need to conduct the entire trial and should include separate folders for the following:

1. Exhibits. Exhibits should be placed in separate file folders and enough additional copies should be made so that the judge and opposing counsel at a minimum have copies of the exhibits.

2. Witness folders. There should be a separate folder devoted to each witness and his/her expected testimony at trial. For each such witness there will be a folder containing his deposition transcript, reports, statements, and prior testimony.

3. Trial chart. This chart spells out each claim and defense and the evidence that will be used to satisfy each element of each claim or defense. It will show the source of proof for each element. It will be a blue print for satisfying the prima facie case or affirmative defense.

E. Preparing Exhibits.
The use of exhibits at trial is critical. The first consideration regarding using any exhibit is getting the exhibit into evidence. To some extent, this is a mechanical skill that must be learned, but there are basic steps for admitting an exhibit into evidence and it is necessary to lay the proper foundation before any exhibit can be introduced into evidence. Procedurally, the exhibit must be marked, shown to opposing counsel, admitted upon laying a proper foundation and only after being offered and a ruling on its admissibility made, can an exhibit be used at trial and by a witness and published to the jury. Each step must be observed.

In using exhibits the following should be kept in mind:
1. Premark exhibits. Most pretrial orders require that all exhibits be premarked. This is good practice in any event.

2. Attempt to reach stipulations regarding the exhibits. Often foundational requirements such as authenticity are not genuinely in dispute, but would require time consuming and boring testimony from a witness. Often stipulations can be obtained regarding the foundational elements for introduction of an exhibit to avoid time consuming and boring foundational testimony. However, be clear on the scope of the stipulation. Is the stipulation just to authenticity or is it a stipulation as to all elements necessary to lay a proper foundation including relevancy or is it an actual stipulation to admissibility and the use of the exhibit for all purposes? This should be addressed specifically and clarified so as to avoid surprises.

3. Don't use the exhibit or show it to the jury until it has been admitted into evidence. This would be improper and is likely to elicit an unfavorable response from the judge if not opposing counsel.

4. Do not ask a witness about a document before it has been admitted. Get the document admitted and then present the document to the witness before asking about its contents. If Power Point or similar computer assisted software is not being utilized, the document should be blown up and in full view of the jury. If using an exhibit in opening statement, clear it with opposing counsel and the court first.

5. Make sure the judge has a copy of all exhibits. Give the judge an extra copy and not the copy that is being marked for the record. Of course, opposing counsel needs to be presented with the exhibit before it is offered. It is best to have a separate copy of the exhibit for opposing counsel as well. It will generally be necessary to have one copy for opposing counsel, one copy for the judge, the original to be marked and admitted and then either copies for the jury (less preferable) or a blow up or overhead projected image or digital computer projection of the document.

6. Make sure you use the proper terminology in offering an exhibit. The exhibit is "offered" and not "moved to admit".

7. Make sure that exhibits are properly identified and referred to for the record. If a witness is describing a photograph, make sure that you indicate its is a photograph marked as Exhibit 7 and each time there is a reference to the exhibit, it is referred to by exhibit number so that the record is clear.

8. Keep a record of the exhibits and their status. Make sure you keep your own exhibit list and follow the exhibits and what their status is, whether they have been marked for identification only, admitted or not, rulings deferred, etc.

9. Review the exhibits before closing your case. It is essential to make sure that all of the documents and exhibits that are necessary and were planned were in fact admitted or if not, suitable adjustments were made to the trial strategy or different approaches accomplished. Go through the list and make sure each exhibit that was intended to be offered was offered.

10. Make sure that the exhibit is "published" to the jury. The exhibit does no good if the only ones familiar with it are the attorneys, the judge and the witness. The jurors need to see the exhibit and understand it. Publication previously involved passing the exhibit around to the jurors but obviously this distracts the jurors and is impractical when a large document is being utilized, but only a small portion is relevant or being focussed on. Similarly, making a separate copy of the exhibit for each juror is impractical and will cause distraction. Therefore, blow ups are preferable with the relevant language highlighted (with the permission of opposing counsel and/or the court). In addition, overhead projection of the document with a laser pointer is an effective approach. However, now with Power Point and other high tech software, documents can be displayed visually with digital projectors, blown up, portions isolated and highlighted, juxtaposed with other evidence and documents, or presented as video clips or otherwise.

11. Don't allow any exhibits into the jury room until they have been fully inspected and are in proper form and order with appropriate redactions where there has been a stipulation or ruling on the same.

The idea behind any visual aid, whether it be an exhibit, document, photograph, videoclip or otherwise, is to persuade. The more effectively the document accomplishes persuasion, the better the demonstrative evidence. The most common demonstrative evidence are the following:

1. Photographs. Photographs are often key, particularly in accident cases, premises liability cases, cases involving injuries or medical issues. Dramatic photographs can often be obtained from fire departments, newspaper offices, television stations, medical examiners, physicians, and other sources. In car crash cases, aerial photographs can be obtained. Photographs of injuries, medical procedures and vehicle damage are obviously persuasive. They should be enlarged for effective use in the courtroom.

2. Medical models and illustrations. Often the medical issues in a case are complex. Anatomical models are common devices used in teaching medical and anatomical issues as well as medical procedures. Similarly, medical illustrations are useful in visualizing anatomical parts or injuries. These can be blown up in full color and visibly display the part of the body injured or the nature of the injury.

3. Charts and graphs. The simpler the better. These charts and graphs can be very effective in conveying a concept such as a client's projected lifetime earnings, past and future medical costs or even specific issues in the case, elements of the case, words and definitions, timelines, medical treatment courses, etc.

4. Videotape. Videotaping is now commonplace particularly with respect to expert depositions. However, the problem with many videotapes, including videotapes of expert depositions, is that they are usually too long. The American public is used to short sound bites and programming that lasts minutes if not seconds. Generally the shorter the videotape the more powerful. In addition to videotapes of expert depositions, videotapes can be used in a variety of settings and for a variety of purposes such as day in the life films, films of property inspections and accident scenes, films of surgical procedures and other physical examinations and injuries, accident reinactments and reconstructions or even a video collage which excepts portions of expert video testimony, videotapes of accident scene reconstructions and is used as part of closing arguments.

5. Computer graphics. With the advances in technology, the trial of a case has changed dramatically. Computers using two and three dimensional images can now be readily utilized. Animated models can be created at a much more reasonable price than ever imagined. Medical procedures, anatomical images, accident reconstruction, and Power Point presentations are all now readily obtainable relatively inexpensively.

Even these high tech demonstrative aids are only useful if they assist the jury in recalling or imprinting information and educate the jury in an understandable and simple way and evoke empathy and sympathy and identification with the plaintiff. They can be used to aid the witness in telling the witness' story, similar to a "show and tell", and have the witness remember key portions of their testimony. It can be used to emphasize portions of the witness' testimony.

With the new technology, virtual reality can be created with three dimensional computerized images showing objects or locations in issue with dynamic forces and changes, action, photographs, positive x-rays and MRI's and all of this can be managed and stored on disks.

No matter how sophisticated or unsophisticated the demonstrative evidence, all demonstrative evidence should follow the following rules:

1. They should effectively communicate with concepts and pictures.

2. They should be simple and avoid unnecessary detail.

3. They should be easily presented and avoid distracting the jury or having the jurors pass papers around and should be coordinated with the testimony.

4. They should be presented logistically, smoothly and be easy to use without embarrassing technical difficulties.

5. They should maintain consistency in color, form and size.

6. They should focus on the key points and themes in the case.

7. They should be admissible and authenticity and foundational issues should be addressed in advance if possible.

8. They should not be unnecessarily shocking or gruesome.

9. They should only be used if they help your side and your position.

10. They should be used in opening and closing arguments and if possible marked as exhibits to go into the jury room as well.

11. They may be particularly helpful to illustrate an expert's testimony or theory or opinions.

F. Preparing Your Witnesses for Trial.
Trial preparation requires a close examination of what each witness can say and what each witness will be permitted to say to prove your case and preparing each witness to do so persuasively. Witness preparation involves preparing the witness' testimony but also selecting what testimony the witness will address and which witnesses will address specific issues. Witness preparation is not something that can be delegated but must be addressed by the actual lawyer who will be trying the case and examining the witness. Only then can the nuances of the witness' testimony and his or her expressions be evaluated. To prepare the witness to testify, everything that the witness has previously said in depositions, sworn testimony, written statements, answers to interrogatories, accident reports or otherwise, must be closely examined and used to refresh the witness' recollection and prepare the witness for any inconsistencies and impeachment on cross examination. Any exhibits that will be introduced through the witness will need to be reviewed and the foundational requirements prepared with the witness. The witness' probable testimony needs to be compared with other witnesses and documents to minimize any inconsistencies. Most importantly, the witness' direct examination needs to be prepared in detail and repeatedly with the witness. The actual questions you intend to ask on direct examination should be presented and practiced so that the witness is completely familiar with and comfortable with the actual examination that will occur at trial. Then the witness needs to be prepared for cross-examination, review the areas of likely cross examination and the specific cross-examination that the witness is likely to encounter. The witness also needs to be prepared for the general courtroom setup, appearance, how they should present themselves to the jury, their dress, their demeanor in front of a jury, how the courtroom is arranged, courtroom procedure, rulings on objections, where to sit, how to behave in the courtroom, to avoid expressions of frustration or anger or attempts to communicate with counsel or interrupt and be prepared for the procedural and evidentiary rules that apply and govern their testimony.

There are certain basic principles that each witness needs to be informed of. The witness needs to listen carefully to each question and answer only the question ask. Rambling responses or volunteering information is not answering the question and detracts from credibility. The witness must be told to speak loudly and clearly and address the jury. The witness must be warned not to answer any question that he or she does not understand or know the answer to, and that it is perfectly proper to indicate that he or she does not remember or does not recall. The witness should review any previous statement or testimony. Where exact information cannot be given, only approximations of dates, times and distances should be given. Positive, clear and direct answer enhance credibility. The witness should be told to use his own vocabulary and plain and simple words and avoid intellectual or highly technical speech. Acknowledging the seriousness of the proceedings in a polite manner is essential. The witness should be warned against any even slight exaggeration or understatement of the facts or being cute or clever. Arguing with the lawyer or judge is forbidden. Always maintain composure and resist temptations to argue or lose your temper. Testimony must be based on personal knowledge and what the witness saw, heard or did, and most witnesses will not be able to testify to opinions, conclusions or speculations. The witness should be advised how to handle objections and what to do if they are sustained or overruled. The witness must be informed about the stages of examination, cross-examination and redirect examination and their respective functions. Most of all, the witness must be impressed that by telling the truth based on their best memory and knowledge of the facts and events, the credibility of the case can only be enhanced.

In summary, the witness must be told to dress appropriately, be on time, be polite and courteous and not argumentative, to tell the truth, to listen carefully to the question and answer only what he or she knows based on his or her personal memory, to avoid any exaggeration, to indicate when he or she does not know the answer to the question, to not to guess, to be familiar with their prior testimony or statements in a case, to be consistent, to ask for questions to be rephrased if there is any misunderstanding or confusion about what the question asks, ask to examine a document or photograph fully before answering questions about the document, explain if needed and a yes or no answer is not adequate, but don't volunteer or argue, never argue with the other side, don't answer a question until it has been fully asked and most of all be truthful, relaxed and yourself.

II. WHAT TO EXPECT WHEN YOU GET TO COURT

A. Where to Stand and Sit in the Courtroom
Speak to the clerk and make sure you are seated at the appropriate table. Most courtrooms are set up so that there is a table that is to be used by plaintiff's counsel and a table typically used by defense counsel. Make sure that you are at the right table. When addressing the court, always stand up. However, stay at counsel table, unless given permission by the court to approach the bench. When examining a witness, it is generally best to stand at the far end of the jury box so that the witness needs to speak loudly so that his testimony can be heard by all the jurors and so that your examination is heard by all of the jurors. However, do not stand too close to the jurors. Never sit in the jury box while examining the witness. Always stand when addressing the court, examining or cross examining a witness or addressing the jury in opening or closing statements. Always ask permission to approach a witness, either on examination to review a document or exhibit or upon cross-examination. Avoid conferring with your client in the presence of the jury and during the trial. If the client has specific questions, have him or he prepare notes that can be reviewed with the client after the jurors leave.

B. The Most Common Mistakes Made by New Attorneys (and How to Avoid Them)
Common Mistakes.

1. Not sitting at the appropriate table or failing to stand when addressing the court or jurors or asking permission of the court to approach a witness or approach the bench.

2. Speaking with the client during the course of the trial and in the presence of the jury.

3. Failing to familiarize and personalize your client to the jury.

4. Attempting to speed up the trial by asking leading questions or failing to lay a proper foundation for questions and exhibits.

5. Failing to mark exhibits in advance or addressing stipulations for foundational requirements or not having enough copies of the exhibits readily available and accessible.

6. Making frivolous or pointless objections.

7. Being argumentative or rude or impolite to the court or its staff.

8. Failing to learn about each judge and his or her particular trial procedure and idiosyncrasies.

9. Failing to accurately estimate time. When asked by the court to give an estimate as to how much additional time will be necessary for an examination or cross examination, or presentation of the case in chief, neither be greedy nor short change yourself.

10. Improper introductory remarks to the court. The court should not be addressed as "judge" but rather any remarks should be preceded by "May it please the court ... " .

11. Addressing your opponent rather than the court. In open court very few remarks should be directed toward opposing counsel directly. Rather, issues should be addressed to the court.

12. Arguing with the court rather than to the court.

13. Rulings on evidence and other argument with the court should obviously be addressed on the merits and not the court's particular predilection and never challenge the court's authority or reasoning ability. Do not interrupt the court.

14. Failing to be organized and making sure that all papers are in order, indexed, identified and sufficient copies made for opposing counsel, the court, the witness and jurors if necessary.

15. Failing to listen and learn. One needs to be flexible during the course of the trial. One is not always aware of what testimony will be elicited in advance and some of this testimony can be incredibly helpful but if you are tied to a preconceived script, these gems will be lost. Your focus needs to be on what is occurring in the moment at trial and you must be flexible and adapt your argument and proof to what unfolds before you.

16. Failing to make an accurate record. Obviously, offers of proof, marking exhibits for identification and other evidential procedures must be complied with in order to create a record for appeal.

17. Failing to be civil. Being courteous and respectful to the court, the witnesses, to opposing counsel will only enhance your credibility and professionalism in the eyes of the jury and visual display of anger, emotion and unnecessary challenges to the court in the presence of the jury will only engender alienation from the jurors.

18. Be candid. Your credibility is key and do everything to preserve it. Don't get mad but get even. Always maintain your composure. A good trial lawyer will display animation and anger when he is perfectly composed and when he is angry will never show it.

19. Treat every witness with respect and don't waste time on trivialities, minor disagreements or meritless positions.

C. Strategies Used By Seasoned Litigators.
1. Judges and jurors need educating. Seasoned litigators know that nothing should be taken for granted and everything needs to be reduced to simple, understandable terms, both for the jury and the judge. Trial lawyers must be patient and understand that jurors do not appreciate legalese, are not capable of absorbing long laborious and complex subject matter and will need the assistance of counsel to reduce information to simple and understandable form. One's demeanor must eradicate any skepticism or negative images the jurors may have regarding lawyers and display complete professionalism, candidness, honesty and respect.

2. Understanding the experts. Most trials today involve a battle of the experts and complex areas requiring expert testimony. The seasoned litigator understands the importance of expert testimony and knows how to prepare for both the direct examination of their expert and cross-examination of the opposing expert. Confronting the opposing expert head on in the areas of his field of expertise is generally a mistake. Rather, much more can be learned through the expert's other writings, testimony taken in other cases, views and opinions expressed in articles and literature.

3. Understand your opponent. Seasoned attorneys always understand their opponent, his style, strengths and treat them with respect but understand that they are not friends and that they must be treated with the formality required of an adversary. Don't be lured into believing that the case will settle. Focus on trial and trial preparation and assume that the case will be tried.

4. Personalize your client. One of the most important features of the case will be whether or not the jury identifies with and likes your client. Therefore, the jury must know the client and know his or her interests, family, background, work, hobbies, likes and dislikes and preferences.

5. Educating oneself. The effective trial lawyer is always learning through seminars and other experienced counsel, through research and is motivated by intellectual curiosity.

6. Preparation for trial. The seasoned trial lawyer knows that preparation is the key and that an intimate familiarity with every element of the case, the evidence, the inferences, and the nuances is necessary if one is to use this information to develop an effective strategy.

7. The importance of effective communication. The seasoned trial lawyer knows that legalese must be avoided and that plain, simple English that conveys a theme and labels the case and the issues in the case appropriately are necessary to convey a persuasive message. Simplicity is a virtue. Demonstrative and visual aids are necessary to simplify complex matters. Effective communication depends on understanding the language used by jurors and what influences them.

8. Never overselling damages. The experienced trial lawyer never overestimates or overstates any aspect of the case, recognizing that the minute you oversell the case, it can only go in one direction, that is, downhill. This will also undermine your credibility which is the cornerstone of any case. No one believes in a slick or overly aggressive salesperson. Be professional and don't overstate.

9. Be proactive. The effective trial advocate is always looking into new techniques of persuasion and anticipating what discovery, motions, requests for admissions, stipulations, demonstrative evidence and testimony will be required in order to persuade. Great trial lawyers know that persuasion depends on credibility and truthfulness and that jurors cannot be tricked or fooled by showmanship. However, emotion and well held beliefs and perceptions are key in all human affairs including a trial.

10. The trial lawyer most of all must be focussed. Only through spending peaceful and focussed time with a case without distractions, can themes, theories and label emerge and a strategy developed. Running from crisis to crisis rather than anticipating and preparing is a recipe for disaster. Focus, plan and prepare.

11. Never underestimate the importance of cross-examination, particularly the cross examination of opposing experts. Cross examination is not to be feared, but rather is an opportunity to win the case. Preparation is the key. Through the reservoir of information and materials you will create an arsenal with which to assault the opponent. Prior testimony and written reports by the witness should be thoroughly analyzed, summarized and indexed and blown up and presented to the jury where they are inconsistent with current testimony. By knowing the rules, regulations and standards of the particular industry in which the expert testifies, the expert can be confronted with standards that are inconsistent with the expert's position. Cross examination must be preplanned and carefully focussed and realistic goals set. The line of questioning must tell a story and not wander aimlessly. It must be simple and understandable and consistent from beginning to end and keep a tight rein on the expert witness and focus on sharp, distinct objectives.

12. Adopt a professional, courteous and professional attitude and keep an open mind. Civility is key. Meanspiritedness will not be rewarded. Your credibility and integrity and mastery of the facts and law is what impresses.

13. Candor includes knowledge of the weaknesses of your case.