Related Posts
Anonymous User
Coach
More Posts
Need 15 likes for DM. please help.
What are the most boring jobs out there?
Any recs on women’s luxury brand sneakers?
Additional Posts in Litigation & Arbitration
Best big law firms for white collar defense?
New to Fishbowl?
Download the Fishbowl app to
unlock all discussions on Fishbowl.
unlock all discussions on Fishbowl.
Good for you. I take it that this will be your first opportunity to speak in court. That’s a fun and important development point for any lawyer.
Concerning the arguments, start preparing early, over prepare, and find someone, preferably a very experienced lawyer who doesn’t know much about the case, who will do a practice argument/moot court with you. Particularly for things like motions in lemonade, you cannot just get up and essentially read your motion into the record. Instead, you should be prepared to give a quick summary of your argument and principal authorities (in case the judge has not read the motion before hearing argument) and you need to prepare for questions that the judge may ask you. If it’s your motion, you also need to prepare a reply so that after you argue, the other side argues, and you are offered the opportunity to respond, you need to know what you’re going to say.  
For the examination, start early, be thoughtful, and try to get someone else working on the case who knows the substance of the witnesses testimony to practice with you, by having you ask the questions, and answering them in the way expected of the witness. Practice how you will handle any exhibits, practice the use of any technology (for example, trial director), so you have it down cold, and orchestrate how are you plan to present the testimony, right down to the last detail, such as where you will stand at any important points in the examination.
In terms of organizing the exam, it’s useful to start by making a list of topics that you need to cover with the witness. I typically do that on sticky notes so it’s easy to rearrange the topics to get them in a correct order before I start on the actual outline. Double check the topic list with the partner to make sure you Are not missing something. Then figure out which exhibits you need to use with the witness. If you were is better, because exhibits 10 to slow down examinations and can become confusing if you present too many, too quickly, through the same witness. Correlate each exhibit to a particular topic (I wrote the number on the relevant sticking out). If an exhibit does not correlate to one of the topics you have identified, either create a new topic for it or eliminate the exhibit. Double check the exhibit list with the partner to make sure that there are not additional exhibits that he or she expects you to present through the witness.
Once you have your topics and exhibits, spend enough time moving the topics around to ensure that you have a logical order. Chronological is usually, but not always the best way to present material. But think about what Hass to be discussed before or after other topics, and take that into consideration in ordering your topics.
When you have your topics in the sense of order, take each topic individually and craft that topic as a freestanding module, starting with a sign post such as “now I would like to speak with you about the meeting on January 24.“ Then lay out your questions one by one to reach the ultimate point you want to establish with that module. Work in any documents that relate to the topic. Focus on that one section until you have it more or less where you need it to be, then move to another section. Before you know it, you will have a complete, organized outline, with all of the relevant documents right where you need them to be. I like to put screen snaps of the relevant sections of the exhibits right into my outlines so I have been very easy at hand. Also make sure that the outline includes, for each exhibit, any objections you anticipate to the exhibit, and a short hand of your response, along with the proper foundation. For example, if you anticipate offering a memorandum as a business record, make sure that you know the specific exception to the hearsay rule that applies to business records, and have written out the questions that you have to get answered to establish a business record foundation. You literally can’t prepare too much or to carefully for your first direct.
You should do all of the foregoing outlining early enough to allow you to do at least a couple of practice sessions with someone else acting as a witness. Each of those practices will reveal weaknesses in your draft that will need to be addressed. And you can’t anticipate having all of your time to work on your examination as the trial approaches, because as a member of the trial team you probably will have all kinds of test dumped on you that you didn’t know about in advance or expect.
What triallawyer says above is excellent. Every trial lawyer does some form of that.
I personally find direct way more difficult than cross due to the my relative lack of interest for direct when compared to cross. In any event, I prep my direct cases first by preparing a trial overview outline. In it, I prepare an outline of the entire case in chief down to its most granular elements. Then I plug in the witnesses, documents and other evidence that I use for each element.
These witnesses, docs etc may be used for other topics/elements so this helps you organize witness prep/sequence/use for the entire trial. For example, if you have the main witness on the stand, you will probably need him/her for a broad range of topics/issues. The outline I describe helps you organize how you use the witness.
Then once you prepare the trial overview, the work on your witness book. The outline helps you organize what you want to cover with that witness. Then I prepare an outline for each witness. In it I cover the entire set up of every piece of evidence used with the witness. If I am using the witness on the stand to offer a piece (s) of evidence, I will actually put a foundation checklist in the witness book to make sure I get any more complicated piece of evidence in.
The more consequential witnesses may have to cover virtually every proof that you need for the trial. Less consequential witnesses are put on the stand to cover limited topics. My trial overview outline has always helped me plug in those less consequential witnesses where it makes the most sense when you are on direct laying out your case in Chief.
That’s my 2 cents on direct and trial prep. Have a blast. I have been doing trial work more than half my life now and still love it.
Excuse the typos. Typed with a single thumb on a cell phone.
Over-prepare.
Already planned on it! It’s sort of a habit I’ve developed as a junior associate haha
Speak slower than you think normal.
Awesome! Hope you crush it! Unless you’re plaintiff side 😉😉
Couldn’t agree more! There will always be friendly (and unfortunately not so friendly) banter among litigators.
Practice asking open ended questions without leading. It’s remarkable how often people struggle with this and give up on a line of questioning when your wit gets confused and you need to rephrase a question.
Also, don’t practice the direct exam with your wit too many times because it will sound rehearsed. I usually do it 2 times all the way through and then just talk to the wit at a high level about the points I want to make through him/her. Then if there’s some confusion/miscommunication on the stand about what I’m asking, it’s more authentic. And all I need to do is rephrase my open-ended question so the wit realizes what main point I’m getting at.
Practice.
And it’s going to get boring, but practice.
Practice practicing.
After following all of this good advice, just be yourself.
Remember to keep the jury engaged by telling a story through your direct and toning down the technical stuff so jury doesn’t fall asleep.
Put together a once or two sentence theory of the case akin to what you would tell a friend at a bar if they ask you what the trial is about. "This is a case about a man who was driving his car down the road, and when he crossed the intersection at a green light, another car crashed into his passenger door thus sending him into a light post. As a result, he suffered three broken ribs, a broken vertebrae, and severe bruising." Your theory is going to be the story you want the jury to remember, and it should paint your client in a good light.
Have a theme. What issues are you going to be pointing out? The other side is untrustworthy? They aren't credible? Have your theme and have all your questions funnel down into that theme.
Listen to the other people re questioning. Those are all important and accurate.
PRETRIAL MOTIONS: Outline your arguments. KNOW your cases because judges ask questions. Speak loudly and confidently. The judge is king -- bow to him (metaphorically).
But don't let opposing counsel talk over you or interrupt you.
Make sure you understand all the issues, or discuss with your partner. There is sometimes an unclear strategic purpose behind some pretrial motions.
DIRECT: Ask someone to review your direct ahead of time. Make sure you cover the topics the partners need covered.
Outlines are better than questions typically -- so you're not reading like a robot. Work with the witness 2-3 times as you finalize your direct exam outline. See what works for the witness, and what he's going to say. And get him comfortable with your style of examination.
As for performance: Think of it like a very good Barbara Walters or Oprah interview. You're the facilitator, but they're the storyteller. BOND with the witness ahead of time, and the day of their testimony, make sure you make them comfortable. Be cheery, relaxed (fake it if you don't feel it). Speak more loudly and slower than you think is natural. Small sentences. Keep it simple.
Best lesson I learned (in my first hearing too) was knowing when to shut up—especially if you are winning. I try to continue to apply it everyday (with partners, clients, assistants, etc...) Listen more, talk less, but when you do speak, be precise in making your point and anchor it to law. Good luck!!