Trial Techniques
Preliminary Preparation for Trial
Motions at the beginning of a trial
Motion in Limine
A motion filed before or during trial to exclude certain evidence from being presented to the jury. The purpose is to prevent the jury from hearing potentially prejudicial or irrelevant information that could taint their perception of the case. It is often used to address issues like prior convictions, inadmissible hearsay, or privileged communications.
The trial notebook should include:
Information regarding the parties and the attorneys
Contact details, roles, and backgrounds of all involved parties and their legal representatives.
Pleadings, motions, and discovery responses
Copies of the complaint, answer, counterclaims, cross-claims, various motions filed, and complete responses to interrogatories, requests for production, and requests for admission.
Information regarding the witnesses
Contact information, summaries of expected testimony, impeachment materials, and any exhibits associated with each witness.
Information regarding the expert witnesses
CVs, reports, deposition transcripts, and a summary of their qualifications and opinions.
Document indices
Organized lists or databases of all relevant documents, including Bates numbers, descriptions, and relevance to specific issues.
Deposition summaries
Concise summaries of all deposition testimony, highlighted key points, and page/line references for quick retrieval.
Chronology
A timeline of significant events in the case, aiding in understanding the factual progression.
Cast of Characters
A list of all individuals involved in the case (parties, witnesses, experts), their relationships, and key details.
Legal research
Memos, case law, statutes, and other authorities relevant to legal issues, including those for motions, objections, and jury instructions.
Trial exhibits (and exhibit copies)
The original exhibits and multiple copies for the judge, opposing counsel, and witnesses, organized and ready for presentation.
Juror profiles and jury instructions
Information gathered during jury selection (voir dire) about potential jurors, and proposed instructions for the jury on the applicable law.
Trial outlines
Detailed plans for each phase of the trial, including opening statements, direct and cross-examinations, and closing arguments.
Attorney’s notes
Personal observations, strategic considerations, and spontaneous thoughts during the trial.
“Things to do” list
A running list of tasks to be completed before and during the trial.
Theory of the case
This is the central, cohesive story or theme that explains to the jury why your client should win. It must be simple, persuasive, and supported by the anticipated evidence, providing a framework for presenting the entire case.
Proof chart (Issues? Elements? Evidence? Objections?)
A crucial organizational tool that lists each legal issue, breaks it down into its constituent elements, identifies the specific evidence (documentary, testimonial) that will prove each element, and anticipates potential objections to that evidence. It ensures all elements are covered by admissible evidence.
Pretrial conference
A meeting between the judge and attorneys to streamline the trial and address administrative matters. Topics typically include scheduling, motions in limine, exhibit lists, witness lists, settlement discussions, and jury instructions.
Litigation file organization
Systematic arrangement of all case documents to ensure quick access and efficient management throughout the trial, often involving electronic databases and physical binders.
Amending the pleadings
The process of formally modifying the initial complaint, answer, or other pleadings, usually to add new claims, defenses, or conform to newly discovered evidence. This often requires court permission or consent from opposing counsel.
Preparation of Witnesses
Subpoena of Witnesses
A legal document compelling a person to appear in court to give testimony or produce documents. It is used to ensure the attendance of reluctant or hostile witnesses, or to formally secure testimony for the record.
Not all witnesses need to be subpoenaed
Friendly witnesses or those willing to testify voluntarily may not require a subpoena. However, using a subpoena can be a prudent safeguard to ensure their appearance and to protect against claims they were unaware they needed to attend.
Communicating with witnesses
Ethical and professional discussions with witnesses to prepare them for testimony. This involves explaining the trial process, reviewing their prior statements, and clarifying their understanding of events, while being careful not to coach or influence their testimony.
Witness preparation meeting
A formal meeting to prepare a witness for trial testimony. This includes reviewing their deposition testimony and any relevant documents, discussing potential direct and cross-examination questions, advising on courtroom demeanor, appearance, and the importance of listening carefully before answering.
Preparation of Trial Exhibits and Trial Briefs
Preparing Trial Exhibits
Tangible items (documents, photos, objects) presented as evidence. This involves ensuring they are properly marked, authenticated, and admissible.
May be required to exchange lists or copies of trial exhibits with the other party
Many jurisdictions, pursuant to rules of civil procedure (e.g., Federal Rule of Civil Procedure 26(a)(3)), require pre-trial exchange of exhibit lists and even copies of exhibits to prevent surprise and facilitate trial efficiency.
Trial exhibit log
A detailed record of all exhibits, including their number, description, date offered, admitted/denied status, and any objections, used to keep track of evidence during trial.
Chronology of the case as a trial exhibit
A visual timeline presented to the jury to help them understand the sequence of events, especially in complex cases.
Evaluating documents as trial exhibits
Assessing a document's relevance, authenticity, and admissibility under the rules of evidence before deciding to use it as an exhibit.
Researching for the Trial Brief
Trial Brief
A written legal argument submitted to the court before trial, outlining a party's legal position on key issues, citing applicable statutes and case law, and often summarizing the factual arguments. It serves to educate the judge on the party's arguments and to persuade the court on legal points.
Explains legal issues
Clarifies complex legal questions pertinent to the case.
Provides the law that validates a party’s position on those issues
Cites primary legal authority (statutes, regulations, precedents) to support the party's arguments.
Strategic importance
Beyond just legal arguments, a trial brief can be used to frame the factual narrative from the party's perspective and to highlight key evidentiary issues or challenges expected during trial.
Legal and factual research
Thorough investigation into case law, statutes, rules, and factual matters to build a strong legal argument and support the trial brief's assertions.
Preparation and filing of the brief with the court
Drafting the brief according to court rules, meeting deadlines, and formally submitting it to the judicial authority.
Coordinating Trial Logistics
Arranging for Accommodations
Travel accommodations
Booking flights, hotels, and transportation for attorneys, staff, and key witnesses, especially for out-of-town trials.
War room
A dedicated, secure off-site space near the courthouse where the trial team can work, store documents, prepare witnesses, and strategize during the trial. It's equipped with necessary technology and supplies.
Visiting the courthouse
A preparatory visit to familiarize the trial team with the courtroom layout, judge's preferences, available technology (e.g., projectors, screens), acoustics, and general court procedures.
Trial box
A portable container holding essential trial supplies, such as legal pads, pens, highlighters, sticky notes, charging cables, office supplies, and potentially backup copies of key documents.
Contacting court personnel
Establishing communication lines to facilitate trial proceedings.
Court clerk
The administrative assistant to the judge, responsible for managing court documents, scheduling, jury administration, and maintaining the official court record.
Court reporter
An official who records verbatim everything said during court proceedings, creating a transcript that serves as the official record of the trial.
The Trial
Six main phases of the trial:
Jury selection (Voir Dire)
Opening statements
Witness testimony and cross-examination
Closing arguments
Jury instructions
Jury deliberation and verdict
Preliminary Steps in the Trial Process
Requesting a Jury Trial
Request for a Jury Trial is the responsibility of the litigants
The Seventh Amendment to the U.S. Constitution guarantees the right to a jury trial in civil cases in federal courts. Litigants typically assert this right by filing a formal demand for a jury trial in their initial pleadings (e.g., complaint or answer) within a specified time frame (e.g., 14 days after the last pleading directed to an issue triable by jury under FRCP 38(b)). Failure to make a timely demand can result in waiver of this right.
Factors in choosing a bench or jury trial
The decision between a bench trial (judge only) and a jury trial involves strategic considerations based on the specific case:
Complexity of the case
Highly technical or legally complex cases might be better suited for a judge (bench trial) who is accustomed to legal intricacies, whereas a jury might struggle with convoluted facts or scientific evidence.
Available time
Bench trials are generally shorter and less expensive, as there is no jury selection process and often less formality. Jury trials can be significantly longer due to jury management and evidentiary presentations.
Condition of the client
If the client presents well, is sympathetic, credible, or if the case involves emotionally compelling circumstances, a jury trial might be preferred. If the client is less sympathetic or has a criminal record, a bench trial might be safer.
Location of the trial
The demographic characteristics and known biases of potential jury pools in a particular jurisdiction can heavily influence the decision. Local legal culture and the reputation of the judge may also play a role.
Nature of the legal issues
Certain legal issues might be better decided by a judge (e.g., equitable remedies), while issues of fact, credibility, and damages often resonate more with a jury.
Precedent and public perception
Some cases may benefit from a jury verdict for public relations or to establish a precedent that reflects community values, while others might seek a more strictly legalistic outcome from a judge.
The Trial (continued)
Jury selection
Federal court: 12 jurors
Most state courts: 8 jurors
In both federal and state courts, parties are allowed to stipulate to fewer jurors. For instance, in federal court, per FRCP 48, a jury must have 6 to 12 members.
Voir Dire
The process of questioning prospective jurors by the judge and attorneys to determine their impartiality and suitability for jury service. The goal is to select a fair and unbiased jury.
Peremptory challenges
Allows attorneys to dismiss a prospective juror without stating a reason. Each party is typically allotted a limited number of these challenges, which cannot be used to exclude jurors based on race, ethnicity, or gender.
Challenge for cause
Allows attorneys to dismiss a prospective juror for a specific, stated reason demonstrating bias or an inability to be impartial (e.g., relationship to a party, clear prejudice). There are typically an unlimited number of challenges for cause, but the judge must approve each one.
Opening statements
Definition and limitations
The initial address to the jury by attorneys for each side, outlining the evidence they intend to present and the facts they expect to prove. It is a roadmap of the case, not an opportunity for argument or presenting personal opinions. Attorneys cannot introduce new evidence or dwell on inadmissible facts.
Importance of the opening statement
Crucial for making a strong first impression, setting the tone for the trial, and providing the jury with a framework to understand the complex evidence that will follow. It's often the jury's first exposure to the full narrative of the case.
Characteristics of a good opening statement:
Brief
Concise and to the point, typically lasting 15-30 minutes, focusing on essential facts without unnecessary detail.
Interesting
Captivates the jury's attention by telling a compelling story while remaining factual and professional.
Understandable
Uses clear, plain language, avoiding legal jargon and complex terminology, ensuring the jury grasps the core message.
Sympathetic
While not overly emotional, it should present the client and their case in a favorable light, allowing the jury to empathize with their position.
Tactful
Delivers information persuasively without being overly aggressive or offensive, maintaining professionalism and respect for the court and opposing parties.
Presentation of Evidence
“Case-in-chief”
The main body of evidence presented by each party to prove their claims or defenses. The plaintiff presents their case-in-chief first, followed by the defendant.
Witness testimony and cross-examination
Live statements from individuals under oath, subject to questioning by both sides to elicit facts, challenge credibility, and present different perspectives.
Exhibits
Physical or documentary evidence (e.g., photos, contracts, reports) formally admitted by the court after proper authentication and foundation, used to support testimonial evidence.
Stipulations
Agreements between opposing attorneys on certain facts or legal issues, which removes the need to prove those agreed-upon points in court. This saves time and resources.
Judicial notice
The court's acceptance of certain facts as true without formal proof, because they are common knowledge or easily verifiable from reliable sources (e.g., dates, scientific principles, geographic facts).
Rebuttal evidence
Evidence presented by the plaintiff after the defendant has concluded their case, specifically to contradict or disprove the defendant's evidence.
The Defendant’s Case-in-Chief
Direct examination by the defendant
The questioning of the defendant's own witnesses, including the defendant if they choose to testify, designed to elicit favorable testimony to support their defenses or counterclaims.
Leading questions by the defendant
Questions that suggest the desired answer. Generally prohibited during direct examination of one's own witnesses, except for preliminary matters, undisputed facts, or when examining a hostile witness.
Rules regarding the defendant’s direct examination
Similar to the plaintiff's direct examination, questions must be open-ended, non-leading, and aim to elicit facts from the witness's knowledge. The witness should appear to be telling their story in their own words.
Cross-examination by the plaintiff
The plaintiff's opportunity to question the defendant's witnesses after direct examination. The purpose is to test the witness's credibility, challenge their testimony, and elicit favorable facts for the plaintiff's case. Leading questions are generally permitted on cross-examination.
Redirect examination by the defendant
A limited opportunity for the defendant's attorney to question their witness again, but solely to clarify or explain points raised by the plaintiff during cross-examination. No new topics can be introduced unless specifically necessary to address a point raised on cross.
Closing Argument
Definition and limitations
The final opportunity for attorneys to summarize the evidence presented, tie it to their theory of the case, and argue why the jury should rule in their favor. Unlike opening statements, attorneys can argue and draw inferences from the evidence, but they cannot introduce new facts, misstate the evidence, or make personal attacks.
Strategy of the closing argument
Involves vividly recounting the evidence, highlighting key testimony and exhibits, explaining how the evidence satisfies (or fails to satisfy) the elements of the claims/defenses, addressing weaknesses in the opponent's case, and usually concludes with a clear request for a specific verdict or damages amount. It should reinforce the theme established in the opening statement.
Characteristics of a good closing argument
Logical, persuasive, well-organized, emphasizes key points, maintains credibility, uses direct and clear language, provides a clear call to action (the desired verdict), and often appeals to principles of justice and fairness based on the evidence.
Delivering a well-planned closing argument
Requires meticulous preparation, including outlining main points, selecting powerful visuals or analogies, practicing delivery for timing and impact, and ensuring all legal and factual arguments are strongly supported by the trial record.
Delivering a persuasive closing argument
Beyond planning, it involves effective oral advocacy—using tone, pace, body language, and conviction to connect with the jury, simplify complex information, and evoke a sense of justice, guiding them towards the desired conclusion.
The Jury
Jury instructions
Legal guidelines read to the jury by the judge, explaining the law applicable to the specific case they have heard. These instructions define legal terms, specify the elements that must be proven for each claim, and outline the proper procedures for deliberation and reaching a verdict.
Judge delivers jury instructions
The judge has the sole responsibility for instructing the jury on the law, often using standard or agreed-upon instructions, sometimes after arguments from counsel regarding proposed instructions.
Jury deliberations and verdict
The process where jurors retire to a private room to discuss the evidence, apply the judge’s instructions, and attempt to reach a consensus on the facts and the outcome of the case.
Actual deliberations
Jurors consider all admitted evidence, review witness testimony, and debate the application of the law, often selecting a foreperson to lead the discussion and voting.
Rendering a verdict
The jury's formal decision on the issues of the case, announced in open court.
General verdict
A simple declaration by the jury of who wins (e.g., "We find for the plaintiff" or "We find for the defendant") and, if applicable, the amount of damages. It does not provide specific findings of fact.
General verdict with interrogatories
A verdict where the jury makes a general finding for one party but also answers specific written questions (interrogatories) about specific factual issues. This allows the court to check if the jury correctly applied the law to the facts.
Special verdict
A verdict where the jury only answers specific factual questions presented by the court, without making a general finding for either party. The judge then applies the law to the jury's factual findings to determine the legal outcome.
Polling the jury
A procedure, upon request of either party, where each juror is individually asked by the judge in open court whether the announced verdict is truly their verdict. This ensures unanimity and confirms that no juror was coerced.
Motions
Motions during the trial
Formal requests made to the court by an attorney to obtain a specific ruling or order on a procedural or evidentiary matter while the trial is ongoing.
Motion for judgment as a matter of law (JMOL)
Made during trial (after a party has rested its case), arguing that no reasonable jury could find for the opposing party based on the evidence presented. If granted, the judge enters judgment without the jury's verdict.
Motion for involuntary dismissal
Made by the defendant, typically after the plaintiff has presented their case, arguing that the plaintiff has failed to prove a prima facie case (i.e., failed to present enough evidence to support their claims).
Motion to strike
A request to remove specific testimony, answers, or parts of pleadings from the record because they are irrelevant, inadmissible, or improper. If granted, the jury is instructed to disregard the stricken material.
Motion for mistrial
A request to the court for the immediate termination of a trial due to a serious error, misconduct (e.g., by a juror, counsel, or witness), or an event that makes a fair trial impossible. If granted, the case may be scheduled for a new trial.
Motions at the end of the trial
Requests made after a verdict has been rendered, asking the court to overturn or modify the jury's decision, or to grant a new trial.
Renewed motion for judgment as a matter of law (often called JNOV - Judgment Notwithstanding the Verdict)
Made after a jury has returned a verdict, arguing that the verdict is not supported by sufficient evidence, and that no reasonable jury could have reached such a conclusion. It essentially renews an earlier JMOL motion.
Motion for new trial
A request for the court to set aside the verdict and order a new trial due to significant errors during the previous trial (e.g., improper jury instructions, newly discovered evidence, misconduct by the jury or counsel) that prejudiced the moving party.
The Paralegal’s Role at Trial
Ensuring the presence of witnesses
Managing communication with witnesses, confirming their availability, arranging travel, and ensuring they arrive at court on time and are prepared.
Keeping track of exhibits
Maintaining the exhibit log, organizing physical and electronic exhibits, ensuring proper marking, and managing their presentation and handling during trial.
Participating in jury selection
Assisting attorneys by taking detailed notes on potential jurors' responses during voir dire, tracking peremptory challenges and challenges for cause, and providing input on juror profiles.
Taking notes during the trial
Recording key testimony, important rulings, objections, observations about witness demeanor, and any other critical information that can assist the attorney during the trial and in post-trial motions.