Dennis I. Wilenchik

Wilenchik & Bartness, P.C.

2810 North Third Street

Phoenix, Arizona 85004

(602) 606-2810 (T)

(602) 606-2811 (F)

diw@wb-law.com

Civil Trial Practice-Do’s and Don’ts

Ninth Annual Public Legal Seminar Prescott, Arizona May 10-12, 2006

Do’s and Don’ts—Introduction

Do’s and Don’ts—Introduction

Do keep it simple and use common sense. Do appear to be well prepared, confident, and

in control of the trial. Don’t bore the jury. Don’t misstate evidence, go beyond the

record, or state personal beliefs.

Do’s and Don’ts—Introduction

Don’t argue with the judge in front of the jury. Do know what the judge expects of you in the

courtroom. Do use visual aids to streamline evidence and

issues. Do try to stipulate to admit as many exhibits

as possible beforehand.

Do’s and Don’ts—Introduction

Do be organized and neat at your table. Do keep track of all of your documents and exhibits. Do create notebooks or folders for each witness and

for the opening statement and closing arguments. Do create a “proof” outline showing issues needed

for either your prima facie case or affirmative defenses.

Do’s and Don’ts—The Jury

Do’s and Don’ts—The Jury

Do establish rapport with the jury. Do try to remember names of jurors. Don’t ever embarrass a juror. Do appeal to the logic and emotions of jurors. Do show the jury the way. Don’t speak “like a lawyer” in front of the

jury, but don’t talk down to the jury either.

Do’s and Don’ts—The Jury

Don’t let the jury believe that anything that happens is a surprise.

Do listen to prospective jurors during voir dire. Do engage in some probing voir dire in order to

determine whether a prospective juror may help or hurt your case.

Do make objections understandable to the jury.

Do’s and Don’ts—Opening Statements

Do’s and Don’ts—Opening Statements

Do start strong and create interest. Do rehearse. Do use visual aids where appropriate. Do emphasize key issues by repeating key

words or phrases, pausing, modulating your voice, and creating catch phrases.

Do’s and Don’ts—Opening Statements

Do introduce weaknesses early and openly. Do tell compelling stories. Don’t overly commit yourself to the specific

facts. Don’t make arguments. Save your arguments

for later.

Do’s and Don’ts—Witnesses

Do’s and Don’ts—Witnesses

Do not call witnesses that you really do not need.

Do not fight or argue with witnesses. Do end direct and cross examinations on high

points. Do not object to the testimony of a witness

unless you must do so. Do adequately prepare your witnesses.

Do’s and Don’ts—Direct Examination

Do’s and Don’ts—Direct Examination

Ask yourself: What am I trying to prove? What witnesses do I need to prove my case? Who

are my best witnesses? How should I order my witnesses in order to tell

my story? What can I do to make my examination more

interesting to the trier of fact?

Do’s and Don’ts—Direct Examination

Ask yourself: What are the legal requirements of getting my

evidence or testimony introduced? What exhibits should I introduce and when? What demonstrative aides should I use to reach my

goals? What objections should I expect? How can I

overcome those objections?

Do’s and Don’ts—Cross-examination

Do’s and Don’ts—Cross-examination

Do develop your theory and theme of the case and apply them to the cross-examination.

Don’t cross-examine every single witness if you do not need to.

Do start and end strong. Don’t ask “how” or “why” questions.

Do’s and Don’ts—Closing Arguments

Do’s and Don’ts—Closing Arguments

Do use the closing argument as a final opportunity to persuade the jury.

Do prepare the closing argument before the opening statement.

Do rehearse the closing argument. Do use analogies where appropriate. Do use demonstrative evidence and/or visual

aids.