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Top 10 Tips for Young Trial Lawyers

by Oscar Michelen
At this time of year, I always think about the new class of
lawyers coming to their new jobs at the end of the summer,
which also means that those who are already in their legal jobs
for a few years will get slowly pushed up the ladder. When I was
at Corporation Counsel (The lawyers for the City of New York) I
was asked to put together a training seminar for the new
lawyers normally a year or two out of law school who would
now begin trying cases in defense of the the City. I worked with
Chief of Trials Lenny Mentzer (as an outside the box thinker
as there ever was) from whom I learned so much. We created
all kinds of simple lists and pointers that would be easy to carry
into court with you and which would be easy to follow. I then
created a Top Ten list as David Lettermans Top Ten list was just
gaining popularity. I found it recently and perked it up for the
new society in which we operate. So here it is:
10. Remember the Five Ps of Trial: Prepare, prepare,
prepare, prepare and prepare. That about covers it. Know the
file, break down the depositions, think the case through, read
the documentary evidence over and over. Knowing your case
better than your adversary is the first step to success.
9. Go to the location of the accident, crime, etc.: Never
try a case without going to the locus quo as they say in fancy
courtrooms. While pictures are helpful (and you should bring
someone with you to take pictures when you visit if you dont
have pictures) nothing replaces being in the actual place
yourself. Try to recreate the incident or visualize what a
witness saw from their vantage point. Also, by going to the
scene, a witness cant pull the wool over your eyes by testifying
to something that would be physically impossible. Finally, when
you employ part of what you learned from your visit in a
question You know that there are two awnings that hang
over that address, dont you? you tell the jury youve done
your homework and know what youre talking about,
establishing more credibility with the jury.

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8. Go to the courtroom where the case will be tried: This

is a good tip even for lawyers who will just be appearing on
motions and not doing actual trials. Dont let your appearance
on the case be the first time you are walking into the
courtroom. Learn the ropes of how that Judge and (more
importantly) that courtroom clerk run the courtroom. Are they
lackadaisical, no nonsense, on time, crowded, where does the
witness sit? etc etc. If at all possible sit in the audience during
a trial by the judge, ask other lawyers about pet peeves and
unusual practices. The less surprises in store for you the less
nervous and better off you will be. In most courts, state and
federal, judges have individual practices and rules that you
must be fully aware of. If you cant find them yourself, call the
part and ask the clerk if there are any such rules and where
they can be found.
7. Be mindful of your appearance: You want to be welldressed but dont go overboard and become a peacock. Young
lawyers can rarely pull off the flower in the lapel, bow tie,
suspenders look. No flashy jewelry, but a nice watch perhaps.
Dark strong colors are best for suits and let a tie or a scarf
provide the color. Shoes should be well-polished and in good
shape. Dont have anything in your pockets that can create
bulges or pulls.
But this also means: Be mindful of your appearance to
the jury. During breaks, jurors will be looking at your behavior.
They will suspect that you are on your best behavior in the
courtroom but what about outside of it? Assume you and your
client (or witness) are being observed by the jury at all times.
Developing you trial persona is critical for a trial lawyer.
There is only one rule Be yourself and be authentic. Dont get
caught in anything that appears like a lie or a deliberate
misstatement to the court or the jury. You can never get your
credibility back from that. I like to blend a little humor in what I
do because thats who I am and what works for me. But I also
enjoy getting deathly serious and aggressive when called for.
Thats also who I am. Having spoken to hundreds of trial jurors
over the years, I have found that this dichotomy works for me;
they found it interesting that I can be light-hearted and
laser-focused and serious in the same situation. But only
because those are elements of my genuine personality. Just like

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a tennis player at Center Court cannot hide his games

weaknesses or blame it on a teammate, a trial lawyer cannot
fake a personality all the way through trial. The real you will
come out. So you might as well just start out being yourself. No
matter who you are, speak clearly and in a loud voice thats
easy to be heard. Dont interrupt the judge or your adversary.
Ask permission to approach a witness or the bench. Do you
best to maintain eye contact with the jury throughout the trial.
Jurors seem to expect trial lawyers to be rude and obnoxious.
They are pleasantly surprised by and very open trial lawyers
who are effective but courteous, efficient and prepared.
6. Be in control of the courtroom: This goes hand in hand
with the previous item. Show that you are organized and
prepared by keeping a running list of evidence- a simple sheet
(one for each party) with columns for the item description, its
number or letter; which party offered it; whether it was marked
in evidence or just for identification, when it was admitted into
evidence (date); whether there was an objection to it. See
example below. Keep a list of the witness who testified, on
whose behalf they were called and when they testified. Have
extra copies of any depositions you plan on using for the court
to read along. Ask if a witness needs water and ask the court
officer to provide it for the witness. All of this tells your jury that
you are comfortable in the courtroom and that you are
prepared.
Organize your files: Nothing annoys judges, court
personnel, juries and clients more than watching a lawyer
bumble through the file looking for an item they swore was
here a minute ago. Know where everything is and have
important items marked in their own manila folder. If something
is really key, make multiple copies of it so its always at the
ready.
If you are using electronic evidence or power point
presentations, run through them five or so times to make sure
you are intimately familiar with how to load them and run them
without a hitch.
5. Write out your direct and cross-examinations: The
examination of witnesses is of course of paramount importance
in a trial. Think through what you want to accomplish with

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every witness who is likely to testify. What are you goals for
each witness? How will they help you how will they hurt you?
Remember that jurors particularly remember the first thing they
hear and the last thing they hear. So start strong and finish
strong. Especially for young lawyers all cross exam questions
should contain the fact you want to emphasize and ask witness
to agree or not in some fashion and the be prepared for
whatever answer According to you this was so
dangerous, yet you never once saw fit to complain about
it, true? [If the witness answers true you can move on to
another topic or follow up with Isnt it a fact that you
never complained because it wasnt dangerous? If the
witness answers Not true then ask Surely you are not
now claiming for the first time ever that you complained
of this condition are you?] Have flow charts prepared for
this type of analysis. For critical questions write out the
questions entirely. I dont want to get into a lengthy discussion
on cross, but have the exam broken up into topic areas and
clearly defined sections don-t go all over the place.
4. Preserve the record by learning, controlling and
explaining your objections: There are many lists of trial
objections you can keep handy. But commit them to memory as
soon as possible. If the judge doesnt care then dont give a
reason, just state Objection. Federal court and most state
courts, however, ask for a one word explanation along with the
objection: Objection, hearsay. It is a common young lawyer
mistake to object to everything. Managing your objections has
to be part of your overall trial strategy. Look carefully at the
jury and try to assess their position on it. Are they getting
angry because the other lawyer doesnt know how to frame a
question and your objections are all getting sustained? Are they
getting the impression that you are just trying to block all
evidence that is bad against you because all your objections
are getting overruled? No matter what, no matter how it
appears, you must state an objection to an item or line of
questioning that you feel is error for the court to allow.
Preserving the record is of paramount importance. Make sure
you have explained thoroughly the basis for your objections.
Some judges will do everything in their power to prevent
lawyers (especially young lawyers) from making a record. They
might say I overruled your objection and you have an

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exception, theres no need to make a record or The record is

already clear why you objected, move on You must forge
ahead and ask for the right to put it on the record if you feel it
is not adequately addressed. If the court says You can do so
later or Youll have your chance write down a note to
remind you what you want to put on the record. Before the jury
is brought in during next session, remind the court of its
promise and ask to put it on the record. Dont allow yourself to
be dissuaded by the court. The only thing worse than losing a
trial is finding out you blew your clients appeal because you
didnt preserve the record properly.
3.Develop a theme for your case: No matter how
complicated a case can be, you can find a theme that explains
the case to the jury. What is the case really about? Remember
that juries are used to watching TV show trials and that
Americans like sound bites. Analyze the case and develop a
theme that you begin employing in your discussion with the
jury during jury selection. Prepare questions for a jury that
develop the theme. What would happen if we all started
doing whatever we wanted without consequence? Do you
owe the person next to you anything? How about behaving
appropriately under certain circumstances? Whats a movie
you liked that had a good message? Get jurors talking about
important concepts and work them into your theme. Having a
theme also lets you decide what kind of juror you want what
kind of person will be most receptive and approving of your
theme?
Bring the theme back to life in your opening and closing
arguments and during key questions to witnesses through the
trial. It can be a basic large concept theme: betrayal of trust;
lack of proof; fundamental fairness; or something thats
case specific but it should be something a jury can quickly
understand and identify with. When you set your case up with a
theme like this, if the jury feels you have hit it on the head and
then come through with the evidence, then you are a winner.
2. Write your summation first: I know many trial lawyers
who write their summation the night before they have to give
it. A recipe for disaster. If you have followed rule number 10,
you pretty much know whats going to happen at trial. If you
have followed rule number 3, you know the theme you want to

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hit home in your summation. Write your summation before jury

selection. Read it aloud. Your motto should be: If I can say
this to the jury then I will win. The goal of the trial will
then be to get the evidence to fit your winning summation, not
writing a summation to fit the evidence. At the end of every
trial day, take out your summation and examine whether it
needs to be modified or altered based on the days events. If
something didnt turn out like you planned, can you do
something else tomorrow or the next day, to revive that issue
so you can still say it in your summation? Do this as the trial
progresses and your winning summation will remain intact.
Writing your summation first will also force you to analyze the
strengths and weaknesses of your case and prepare yourself for
them.
1. Never pass an open bathroom: I am not kidding. NEVER
PASS AN OPEN BATHROOM. A sudden dire need to go to the
bathroom is the last thing you want in the middle of a trial. The
sixth P of the five Ps in item 1 is pee. Get it out of the way
so that its not on your mind. Go in before every court session. It
also allows you to check yourself in the mirror and see if theres
a poppyseed in your teeth or cream cheese on your lapel. It lets
you get your head together as well.
OF course, different trial lawyers will add or subtract tips from
this list based on their experience but I have found that these
ten rules provide a good foundation to get young lawyers (and
even some not so young trial lawyers) trial ready.
Sample evidence chart:
Plaintiffs Evidence
Item

#/lett Date In
Objections/Comments
er
Evid?
1
8-15 Y

Photo of
windshield
Piece of glass 2

8-15 N

Sust. (no foundation/chain of

custody)