Posts Tagged ‘trial’

Is your legal team really ready for trial?

Friday, October 7th, 2011

Much, if not all, of The Empowered Paralegal:Effective, Efficient, and Professional,  is about being prepared with one chapter being devoted specifically to trial preparation. Preparation is especially important at trial where it is often the best prepared case, not the best case, that wins. In a new post on Judge Larry Primeaux’s blog, Chancellor Deborah J. Gambrell  emphasizes this point from the point of view of the bench:

Q:  What is the main thing lawyers should know to avoid doing in your court room during a trial?

A:  DO NOT ANNOUNCE “READY FOR TRIAL” IF YOU ARE NOT. Being ready for trial means: 1) having three (3) copies of all proposed Exhibits; 2) having presented a copy of the proposed Exhibits and Exhibit List to counsel opposite; and 3) having all necessary parties present.

Indeed, being prepared is one of  three attributes of a good attorney for Judge Gambrell. However, on an well-working legal team, one that can “dance,” it is the paralegal who sees that the preparation is done. When the attorney stands, says, “We are ready for trial” and really is prepared, more often than not the paralegal is responsible – effective, efficient, professional, and proud.

Improving the Dog and Pony Show

Thursday, March 10th, 2011

In The Empowered Paralegal: Effective, Efficient, and Professional I state that when it comes to a trial “the best dog and pony show wins” meaning that often it is the best prepared case that wins, not necessarily the best case. The best prepared case is not simply the case with the most information, but the case in which that information is organized and set for presentation to the jury in a way the jury can understand it. Today’s post “Show Me the Money!” from Judge Primeaux on his blog illustrates this point as it applies to any factfinder, including those wearing a black robe:

As a judge I can tell you it’s hard to capture every detail in my trial notes. Sometimes the witness just speaks so fast  that I stay three sentences behind, trying to catch up, and just can’t get it all. Sometimes the significance isn’t clear until much later in the trial or even when the judge is writing the opinion, and then it’s too late.  Sometimes a verbose witness will bury the critical info under an avalanche of mostly meaningless words.

Next time you have an equitable distribution case, why don’t you sit down with your client during your trial preparation and work up a spreadsheet that shows how she wants the marital estate divided. 

The post includes other suggestions and the questions necessary to lay a foundation. I cannot emphasize enough the importance of the role of this kind of preparation is for a successful trial and the importance of the paralegal’s role is in preparing a well-done trial notebook. For more on this see Judge Primeaux’s blog and Chapter 7 of The Empowered Paralegal: Effective, Efficient, and Professional.

Dress for Success

Thursday, September 2nd, 2010

An article in USA Today entitled, “Judges crack down on inappropriate clothes in court” notes that many courts are taking measures to eliminate dress that offends the dignity of the court and the judicial process. In most instances the offenders are likely pro se litigants appearing for arraignments and the like.  Most paralegals are well versed in appropriate dress for the office and the courthouse, although it is not unusual for more experienced paralegals to find it necessary to take new paralegals aside for a few pointers on this issue. However, many paralegals are unaware that they must be concerned about the appearance of the entire legal team. Every member, including the client and witnesses associated with the client, must “dress for success.”

As I note in The Empowered Paralegal: Effective, Efficient, and Professional,  dressing for success  does not mean “look successful.” It’s my way of saying you have to be aware that the jury is not just looking at the evidence as presented; it is looking at the presenters of the evidence.

Many times the best dog and pony show wins a case (as long as the case is otherwise well prepared). Consider a real circus dog and pony show; the performer and the atmosphere are at least as important as the acts performed. This principle applies to almost any performance meant to leave an impression or make a point on an audience. Every political operative considers not just what is being said, but the backdrop for the speech. Rock stars don’t just sing – they perform. The jury is your attorney’s audience. They are watching, and waiting for, the show.

Like most performers, your legal team is “on” every moment the jurors are in the jury box (and when they are entering or leaving the box). They are watching not just the witness on the stand and the attorney examining the witness, but also the rest of the “performance.”

In this respect it is important how the performers dress and appear to the jury. The performers include the attorney, the paralegal, the client and the witnesses. Each of you most dress appropriately for your role keeping in mind that you must dress for the jury.  Even jurors who seem to be paying little attention seem to notice clothing – distracting ties, short skirts, body-piercing and tattoos.  If a client is pleading poverty, she cannot show up day after day in $300 dollar outfits, dazzling jewelry, $30 nails and $50 hair.  (In my early days of practice a client met me at the courthouse for a hearing to determine whether she was in contempt of court for failure to pay a $100 fine in exactly that fashion.) An expert witness will not impress a jury if he dresses unprofessionally. In fact, he should dress for the jury’s conception of his profession – a doctor as a doctor, a contractor as a contractor and a professor as a professor.

Remind clients and witnesses that they are subject to observation by the jury anytime jurors are present. A jury will assume that a client who is rude to, or snarls at the other party, was equally rude and disagreeable during the event or events that led the parties to court, regardless of how that client or witness presents on the stand. In fact, a client or witness who acts differently on the stand than when he thinks the jury isn’t watching is telling the jury not to believe him as his presentation on the stand is not the “true” him.

Jurors generally do not react favorably to clients who mumble “that’s a lie” under their breath, gasp and shake their heads in reaction to a witness’ testimony.  Clients who squirm, constantly adjust their clothes (this happens a lot with clients not used to wearing a tie who “dress up” just for the trial), or fidget nervously may look as though they have something to hide.

Clients and witnesses seldom of much awareness of these factors. The poverty pleading client who dressed so fashionably in the example above simply had no conception of how her appearance clashed with the purpose of the hearing. They need to be informed by the paralegal. Preparing the clients and witnesses in this way is an important part of overall part of preparing and managing litigation.

Professional Preparedness

Monday, August 2nd, 2010

I often contend that it is freqently the best prepared case that wins the day rather than the best case. A good deal of The Empowered Paralegal focuses on preparedness whether the discussion relates litigation, client management, or any other aspect of paralegal work. Preparing for trial requires much more than lining up witnesses, marking exhibits, and the like. It includes knowing whatever can be known about the jury pool, court room, courthouse, witnesses, parties, and the judge. Consider, plan, and prepare the entire trial presenation from the standpoint of its effectiveness in that particular courtroom and from the viewpoint of the other participants. Having great evidence is of little import if that evidence is not presented in a way that can be seen, heard, and understood by the factfinder. Evidence is only “proof” when it convinces the factfinder.

Here in Mississippi we are fortunate to have a judge who blogs. And in his blog he tells legal teams what he expects from them in court. I suspect that what he expects is quite similar to what most judges expect. It comes as no surprise that one of his expectations is that the legal team be prepared! Consider this recent [edited] post:

Is this you? Your client, Otis, is on the witness stand. Otis is testifying about his finances from Exhibit 2 in evidence, which is his Rule 8.05 financial statement — $350 a month for groceries, $100 for entertainment, $360.48 car note, and so on — and the only ones in the court room who are looking a copy of at his Rule 8.05 financial statement while he testifies are Otis, you and the lawyer on the other side. You glance at the judge, who is sitting there staring off into some faraway void, eyes glazed, his mind drifting off into starry space where Otis’ crucial testimony will never penetrate. The judge is missing the most important evidence in your case!

Where did you go wrong?

If you answered that the Chancellor doesn’t have a copy of the exhibit about which Otis is testifying and so is deprived of the most potent tool you have for the judge to follow and later recall Otis’s testimony, you are absolutely correct. Give yourself a gold star and a pat on the back for a correct answer to this quiz. Give yourself a big, fat F for your trial technique.

…Some attorneys not only offer the exhibit; they also offer the court a separate, extra copy for the judge to mark up. That’s a pretty shrewd practice.

If you aren’t making sure that the court has the original exhibit or a copy when you ask a witness about it, you are asking the court to judge your case in the blind. Put yourself in the judge’s shoes: Without the exhibit, you are asking the judge to listen to, comprehend, copy down and digest literally dozens of figures, often delivered in rapid-fire, machine-gun fashion, when the figures are right there on the exhibit, and the judge could be following along, thoughtfully assimilating the testimony and jotting down a few helpful notes.

The principle is not limited to financial statements. I once had an attorney take a stack of photos in evidence from the bench, present them to the witness one by one, and ask the witness to describe and make observations about each. To this day, I have no idea what the witness was talking about. Had I had a separate copy, I could have looked at each photo simultaneously with the description, and perhaps that would have influenced the outcome of the case.

A week does not go by that I am put in the position of judging in the blind, and it is always to the detriment of the client. How do you expect the judge to get the benefit of your client’s testimony about her financial statement or other exhibit if you take the document away from the judge before she testifies about it?

A variation on this theme occurs when the lawyer actually begins questioning the client about the financial statement and the witness, for crying out loud, does not even have a copy to look at. That’s like sending the poor client into a knife fight without a knife.

The same principles apply to a jury. For example, it makes sense to have an exhibit projected onto a screen for the jury to see as the witness talks about it.

In any case regardless of your jurisdiction, check out the blog at this link: http://chancery12.wordpress.com/2010/08/02/judging-in-the-blind/. It is a great resource for basics such as checklists and for more subtle insight into trial preparation from the viewpoint of the bench.