trial procedure and tactics

8/14/2019 Trial Procedure and Tactics

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TRIAL PROCEDURE AND TACTICSAuthor: James A. Tanford

Indiana University School of Law

A. THE CARDINAL RULES OF SUCCESSFUL TRIALS

1. Act respectful toward the judge. Stand when he/she enters or leaves the room. Address him/her as "your honor."

. !e rief.

#. $on%t waffle or whine

&. 'ever underestimate your opponent

(. )ear comfortale clothes* especially shoes. 'o rule re+uires men to wear vests or women to wear pumps that ma,e them limp.

-. !ring water and granola ars.. Arrive at every court appearance at least 1( minutes early.

. !e formal and professional at all times.

0. repare.

B. USUAL ORDER OF TRIAL

213 reliminaries

!ailiff calls court to order* attorneys stand and judge enters roomJudge as,s for attorneys% names 2sometimes called "appearances"34 attorneys give their names and whom they represent.

Judge as,s if there are any preliminary issues and attorneys ma,e motions. laintiff usually goes first. 5otions are of three ,inds:

a3 5otion to separate witnesses under 6ed. 7. 8vid -1(

3 5otions in limine to prevent the other side from ringing up inadmissile evidence

c3 7e+uests that the judge clarify his or her procedures on specific issues4 e*g* i3 5ay e9hiits e used in opening statement4 ii3

5ay leading +uestions e used on preliminary or uncontested matters4 iii3 Should you state grounds for an ojection in open court

or at the ench4 or iv3 )ill the judge give jury instructions efore or after closing arguments. ;f instructions are not given until

after arguments* will the judge permit you to refer to specific pattern jury instructions during argument.

(2) Jury selection (not usually done at trial competitions)A jury panel is rought in

The judge introduces the case and lectures the jury aout civic responsiility

Si9 jurors are called to sit in the jury o9

laintiff +uestions the panel first* and when done* then defendant +uestions them

8ither side may challenge a juror for cause 2legal dis+ualification3 whenever grounds ecome apparent

After the +uestioning* the lawyers approach the ench and tell the judge whether they have any peremptory challenges 2you just

don%t li,e a juror3. laintiff e9ercises the first challenge* then defendant* then alternately until they are satisfied with the panel or run

out of allotted challenges. <ou may not challenge jurors ased on race* ethnicity or gender.

'ew jurors are called up to fill in the jury o9 and the process starts over again.The jurors who remain are sworn in

3) Opening statement

laintiff 2or prosecutor3 gives an opening statement

$efendant gives an opening statement.



(4) Plaintiff's case in chief

laintiff calls )itness 'o. 1

a3 laintiff conducts direct e9amination

3 $efendant conducts cross=e9amination

c3 laintiff conducts rief reuttal

laintiff calls remaining witnesses. 6or each one:

a3 laintiff conducts direct e9amination



laintiff announces that s/he rests

2(3 $efendant ma,es a motion for a judgement as a matter of law under 6ed. 7. >iv. ro. (?.

(6) Defendant's case-in-chief

$efendant calls )itness 'o. 1

a3 $efendant conducts direct e9amination

3 laintiff conducts cross=e9amination

c3 $efendant conducts rief reuttal

$efendant calls remaining witnesses. 6or each one:

a3 $efendant conducts direct e9amination

3 laintiff conducts cross=e9aminationc3 $efendant conducts rief reuttal

$efendant announces that s/he rests.

23 laintiff ma,es a 7ule (? motion for judgment on the evidence as to any affirmative defense or counterclaim

() Plaintiff presents its re!uttal case * limited to new facts* issues and defenses raised during the defendant%s case=in=chief.

laintiff calls one or more witnessesa3 laintiff conducts direct e9amination



laintiff announces that s/he rests.

203 !oth sides renew their 7ule (? motions for judgment on the evidence.

("#) $losing arguments

laintiff presents the first argument

$efendant presents his or her argument

laintiff presents the final argument

("") %he &udge instructs the &ury on the la



("2) Jury deli!eration

The jury delierates in secret long enough to get at least one free meal.

;f the jury re+uests more instructions or a review of evidence* it ta,es place in open court with the parties present. 8ven the judge

may not communicate e9 parte with the jury.

The jury returns its verdict* the lawyers are summoned* and the verdict is read.)hichever lawyer lost the case as,s that the jury e "polled*" a process in which each juror is individually as,ed if they agree with

the verdict.

C. BASIC PRINCIPLES OF ADVOCACY

213 $evelop a theory of your case and stic, to it. 5a,e sure that everything you do furthers that theory* and don%t waste time on

anything irrelevant to it. A case theory is the simplest model that e9plains what happened and why you are entitled to a favorale

verdict* and forms a cohesive* logical view of the merits of the case that is consistent with common everyday e9perience. A case

theory contains the following elements:

a <our theory should clearly indicate the proper legal outcome of the case. <ou must understand the elements of your cause of

action or defense* and whether and how you can prove them. ;f there are multiple legal issues* you must decide what is your

strongest legal argument. Just ecause an issue could e argued does not mean you must do so. 6or instance* a defendant in a

personal injury case could argue that the plaintiff cannot prove liaility* or that plaintiff suffered no damages* or oth. ;f you

represent a defendant who* at the time of an accident* was drun,* speeding* driving in the wrong lane* and did not have a license*

could you sincerely argue that your client was not negligent ;f the plaintiff suffered only whiplash injuries that cannot e medically

verified* your theory of the case can more comfortaly rest on an argument that the plaintiff cannot prove any injury.

*acts <our theory must e consistent with the weight of the evidence. ;t also should identify which are the most important itemsof evidence that support your version of the disputed events. Just ecause evidence is availale does not mean it must e presented

== even if you have spent time and effort to gather it. <ou must develop the aility to discern helpful from confusing information

and the discipline to limit yourself to the presentation of facts supporting your theory.

+ea,nesses <ou must recogni@e* ac,nowledge* and have an e9planation for wea,nesses* gaps* inconsistencies* and

improailities in your case.

motions A good theory includes an emotional component. )hat injustice has een committed )hy is your client morally

deserving of a verdict

Opponent's case . 7ecogni@e that there is another side to the story. Analy@e your opponent%s case to determine where the disputes

will arise* what the strengths and wea,nesses of the adverse case are* and develop an e9planation for why your opponent%s version

is wrong.

23 ther general principles

.eep it simple >oncentrate on the five or ten most important facts in your case ;dentify them in your case theory. ;f you can

simplify your case* edit your presentations* and ,eep the jury focused on your main points* resisting the temptation to go off on less

important tangents* you will present the jury with a case they can understand and rememer.

/nderstand the la of the case as contained in the jury instructions. A good case fits s+uarely in the middle of it. Save your clever

legal arguments aout what the law should e and your interesting interpretations for the court of appeals.



0e realistic 'ever uild a case around what a judge or jury might do* uild it around what they will proaly do. Sure* it%s possile

that jurors might elieve that a drooling child molester with "!orn to Bose" tattooed on his forehead is a credile witness* ut it is

not li,ely.

%hin, carefully a!out the language that you use . Cse words that personali@e your witnesses and depersonali@e your opponent%s.

Cse colorful laels as mnemonic devices for the main facts.

$orro!orate rather than repeat . 89act repetition is oring* ut corrooration from several angles is convincing.

1llustrate Cse themes* stories* e9amples and anecdotes to illustrate your main points. Jurors may not rememer all the details of

your argument that an opposing e9pert witness%s opinions are purely sujective4 ut they will rememer the story of Doldiloc,s and

the three ears. They may have troule envisioning what the scene of a crime was li,e until you tell them it loo,ed li,e a scene

from "$eliverance."

0e positie rather than negative. 8mphasi@e the strengths of your case* rather than the wea,nesses of your opponent%s.

tart strong sychologists have confirmed what our mothers always told us: first impressions are important. This principle

suggests that the first thirty seconds of each phase of your trial == your opening statement* each direct and cross=e9amination* and

your closing argument == is a critical point in which you should focus on something you especially want the jury to rememer.

nd strong . The psychological principle called "recency" suggests that the final thirty seconds of each phase of your trial == your

opening statement* each direct and cross=e9amination* and your closing argument == is a critical point in which you should focus on

something you especially want the jury to rememer.

dmit your ea,nesses 8very case has wea,nesses* e.g.* witnesses with unsavory ac,grounds or evidence that defies commonsense. <ou cannot ignore these prolems4 wea,nesses do not just go away. <ou cannot e9plain them away* ut you can disclose

them yourself in a way that ma,es them appear trivial. sychologists have shown that you will usually e more persuasive if you

ring out oth sides of an issue yourself than if you adopt the "used=car=salesman" approach of trying to hide ovious points of

vulneraility. As a corollary to the principles of primacy and recency* however* wea,nesses should usually e uried in the middle

of each phase of your trial.

3 Plan 5our *actual $ase $arefully

; s the evidence admissible? <ou can anticipate in advance evidence that can e ojected to* and places where your opponent mayoject to your evidence. <ou need to decide whether the judge will sustain any of these ojections and e9clude the information. A

good theory of the case must e ased on a reasonaly accurate prediction of what evidence will e admitted and what evidence

will e e9cluded at trial. ;t is a waste of time to develop a theory premised on evidence that is inadmissile.

Diagram the case 5a,e a chart in which the elements you need to prove are matched with a list of witnesses and e9hiits availale

to you. <ou then can com your interview notes* the prior statements* and the depositions for each witness* recording on your chart

every important piece of admissile evidence that will help you prove your theory of the case. The chart can form an outline of your

case and help assure that you call all witnesses and introduce all e9hiits that help you

oo, for corro!oration ne witness is legally ade+uate* two witnesses and a corroorating document is persuasive. <our goal is toma,e your case persuasive* not merely ade+uate. <ou can ma,e the testimony given y every important witness more credile y

corroorating everything that witness says* through e9hiits* demonstrations* and the testimony of other witnesses == especially your

opponent%s witnesses. 6or e9ample* a defendant claiming self=defense may as, the arresting officer to descrie the overturned

furniture suggesting mutual comat* or verify that a ,nife was found near the victim%s ody.



$onsider &udicial notice Judicial notice is availale to introduce many types of information not suject to reasonale dispute.

;ndiana 7ule of 8vidence ?1 provides for two categories: 213 facts "generally ,nown" in the community* and 23 facts "capale of

accurate and ready determination y resort to sources whose accuracy cannot reasonaly e +uestioned*" such as almanacs*

encyclopedias* and newspaper television listings. ;f you see, to prove facts of the second type* you ear the responsiility for

supplying a reference oo, to the judge.

4 /se a %rial ote!oo,

A trial noteoo, provides a central* easily transportale storage place for everything you may need at trial. >onsider including the

following sections:

a3 $ramatis personae. A list of the names of everyone important to the case and their roles == a +uic, reminder if you forget.

3 >ase theory and a diagram or outline of your proof* which you will use to respond to your opponent%s directed verdict motion.

c3 Trial schedule* listing everything you intend to do at trial in the actual order you will do it. ;f you write down the scenario and

refer to it as you go along* you will not forget to ma,e a motion* as, for a recess so you can telephone a witness* sumit a jury

instruction* or call a witness. 6or e9ample* the first part of a trial schedule might loo, something li,e this:

1. Approach ench* as, for preliminary instruction on cause of action.

. 5ove to separate witnesses 2Joe3.

#. $ave goes to get witness Jac,son.

&. pening statement 25ary3.

(. $efense opening

-. $irect e9amination = Jac,son 2Joe3

. $efense cross=e9amination.

. 7e+uest that Jac,son e allowed to leave courthouse 2Joe3.0. 7e+uest judicial notice of traffic law E 0=1& 2twenty mph speed limit3 25ary3

1?. 7ead "school @one" stipulation 25ary3.

11. $irect e9amination = Stevens 25ary3.

etc.

d3 retrial. A section containing a list of +ueries for the judge at the start of trial* e.g.* whether she will permit an e9hiit to e used

in opening statement* and whether she permits argument accompanying ojections.

e3 >ourt documents. A section for the pleadings* rulings on motions* pretrial orders* and any other official court documents.

f3 pening statement. <our notes for your opening statement* if you are giving one.

g3 <our witnesses* oth for direct and cross* with copies of statements and documents relating to that witness and an outline of the

direct or cross=e9amination. rior statements and depositions should e carefully inde9ed so you immediately can locate passages

needed to refresh recollection or impeach.

h3 Trial motions. 'otes pertaining to your argument for or against a motion for a directed verdict.

i3 8vidence research. >opies of your evidence research and any riefs you have prepared to support your ojections* or a copy ofthe ;ndiana Trial 8vidence 5anual.

j3 >losing argument. <our notes for final argument* including s,etches of any diagrams you plan to draw on the chal,oard.



To evidence that you thin, is irrelevant or hearsay.

To statements of fact eyond the scope of the depositions.

To correct descriptions of the law.

c. Gow to respond to an ojection

"; am only stating what ; e9pect the evidence to show." 5emori@e this

2#3 The techni+ue of opening statement

6ind a theme that relates to the elements of your case or in the characteristics of your client that arouse natural sympathy or

coincide with universally admired principles. ;t is especially helpful if you can come up with a clever title for your theme. 8.g.*

1. $avid and Doliath == if you represent an individual against a large corporation.

. 6ighting city hall == if you represent a person who has een the victim of infle9ile policies of government ureaucracies or the

unreasonale decisions of faceless officials.

#. >aught in a sea of red tape == if you represent a small usiness trying to comply with contradictory and aritrary regulations and

laws.

&. Baw and order == if your case is wea, on sympathetic factors* ut your client%s actions were legally justified.

Cse chronological order. The more common is to following your client chronologically through the event. 8.g.:

8llen Daston left her house at #:1( to drive to the supermar,et. She put on her seatelt and drove east on Second Street. As she

passed 7ogers 8lementary School on her right* she slowed down. She was watching the road in front and the schoolyard on her

right* when she heard a sudden screeching of tires and was smashed into y the defendant coming out of a driveway on her left.

<ou also may use a timeline* in which the movements of several people are charted minute y minute* ut there is no protagonist.

6or e9ample: ;t%s #:1(. 8llen Daston is leaving her house to go to the supermar,et. The defendant is finishing his fourth eer in his

apartment on Second Street. Fim >hua is sitting in his fifth grade classroom at 7ogers 8lementary School. At #:1-* 5s. Daston gets

in her car and fastens her seatelt. The defendant goes to the refrigerator for another eer* ut the cupoard is are. Fim loo,s

an9iously at the cloc,. 6rom #:1- to #:?* 5s. Daston drives east on Second Street. The defendant decides to go out for more eer*

puts on his coat* and wal,s down to his car. Fim counts the minutes to the end of the school day. At #:?* 5s. Daston approaches

7ogers School. The defendant guns his car down the driveway. The ell finally rings and Fim races out of the schoolhouse. At #:1*

these three people come together. Fim runs across the schoolyard. 5s. Daston loo,s to her right to ma,e sure he%s not going to runinto the street. The defendant flies into Second Street without stopping and smashes into 5s. Daston%s car.

Tell a story. !e entertaining. Try to forget it%s a courtroom4 imagine you%re sitting around a campfire.

Dive a conclusion and tell the jury what verdict you e9pect the evidence to support. Feep it specific and rief.

Admit 2ut don%t emphasi@e3 wea,nesses. 8very case you ta,e to trial will have some inherent wea,nesses == gaps in your evidence*

witnesses who lac, crediility* the asence of corrooration on an important issue* unavailale witnesses* and so forth. !y ringing

them out yourself in as positive a manner as possile you ta,e some of the sting out of them* appear honest* and lessen the negative

impact when your opponent points them out. This does not mean you should tell the jury aout every trivial piece of conflictingevidence nor anticipate disputes your adversary may raise. 7ather* you must ring out and e9plain away those wea,nesses that will

emerge from your own presentation of evidence or that inhere in your theory of the case* regardless of what your opponent does.

6or e9ample* suppose your client had consumed a couple of eers. <ou might say:



Jac, was soer when he got into his car. Ge had drun, only two eers over the course of the evening* and was still in full control of

his faculties.

2&3 erformance suggestions:

Cse as few notes as possile.

5aintain eye contact with the jurors* loo,ing from one to another. ;f loo,ing directly at an individual juror ma,es you nervous* loo,

etween two jurors.

Cse simple words and plain 8nglish. Avoid "legalese."

$on%t get too dramatic == save it for closing.

Hary your pace* pitch and loudness. A monotonous* droning spea,ing voice will put jurors to sleep.

Feep up the pace of your speech* without letting it get so fast the jury cannot follow you. Slow speech is oring.

Cse good posture. $espite what you see on television* the slouching country lawyer approach is not very effective.

8. $;78>T 8IA5;'AT;'

213 )hat topics to cover

Sufficient facts to ma,e out a prima facie case on every issue on which you ear the urden of proof.

Any testimony from the witness on one of your main points of emphasis.

Testimony that corroorates your other witnesses* especially your client.

;nformation aout the witness%s ac,ground that ma,es their particular evidence more credile. <ou may have to supplement the

meager information in the pac,et.

Testimony that is necessary to lay a foundation for other evidence

Testimony that provides continuity and ma,es the story understandale.

23 Suggested order

Something dramatic and important

!ac,ground that olsters witness%s crediility.

Set the scene.

Det witness to tell the story.

!ig finish



2#3 5a,ing the testimony persuasive.

a. 5a,e sure the jury hears your important evidence:

Attract and ,eep the jurors% attention. 5ost direct e9amination is oring. 5uch of it is not very important. Therefore* you want toassure that the jurors% attention is focused on the witness efore you cover the most important parts of the direct e9amination. <ou

can attract jurors% attention to the witness y having the witness do something unusual. 6or e9ample* you can hand the witness an

e9hiit* have the witness get up and demonstrate something* or have the witness wal, to a diagram. <ou can ,eep the jurors%

attention y eing rief and using visual aids.

Det your evidence admitted. The jurors cannot hear your evidence if it is ruled inadmissile y the judge. This means you must

anticipate ojections your adversary might ma,e* and prepare to circumvent them. )ith advance preparation* you can come

e+uipped with research that supports admissiility. <ou can ma,e sure that your direct e9amination contains sufficient evidence to

satisfy foundations. <ou can prepare alternative theories of admissiility* such as offering evidence for a limited purpose. And* you

can e prepared to loo, for other alternative methods of proof* perhaps through other witnesses* in case your evidence is e9cluded.

. 5a,e sure the jury understands your case. 6ive techni+ues will help:

5aintain chronological order. A story is easier to follow if it is in chronological order. 7arely is there any reason why you should

deviate from it.

Sudivide direct e9amination into smaller units. ;f you rea, up a long story into "episodes" it will e easier for the jurors to

understand and rememer it. Thus* you might divide up the plaintiff%s story of a traffic accident into si9 segments: the plaintiff%s

happy and active life efore the accident4 the events of the day leading up to the accident4 a detailed account of the accident itself4the minutes immediately following the accident4 the ne9t few days in the hospital4 and what plaintiff%s life has een li,e since the

accident.

lan transitions etween segments. ;t will e easier for the jury to follow your story if they understand when one "episode" stops

and another starts. <ou should therefore plan veral and visual transitions etween segments. A transition is made up of three parts:

a clear closure on one segment* an interruption of the flow of the direct e9amination* and then a clear eginning to the ne9t

segment. <ou can close a segment with a +uestion such as* "$o you recall anything else aout the accident" 6or an interruption*

you may remain silent for a few seconds* move to a different location* have the witness sit down if the witness was standing* and/or

insert a phrase such as* "Bet%s move on to the events following the accident." <ou can open the ne9t segment with the same ,ind oftopic +uestion you use to start the chronology: "$irecting your attention to immediately after the accident* tell us what happened."

8licit facts and details* not conclusions. >onclusory testimony depends for its success on the witness and jurors sharing a common

frame of reference. ;t is unli,ely that all jurors will share the witness%s view on what constitutes "large*" "fast*" or "a good loo, at

the suspect." The more you are ale to provide the jurors with the details of important points* the more certain you can e that the

jury will understand it. Thus* you want your witness to say "si9 feet tall and two hundred pounds" rather than "large*" "going over

eighty miles an hour" rather than "fast*" and "close enough to read the words %orn to lose% tattooed on his upper arm" rather than

"got a good loo, at the suspect."

Cse appropriate visual aids. 5iscommunication is least li,ely if you can show the jury the actual ojects and places involved in alitigated event. hotographs* diagrams and other illustrations also reduce the li,elihood of misunderstanding.

c. 5a,e sure the jury rememers your ,ey facts y emphasi@ing them so they stand out. The essence of emphasis is difference ==

you cannot emphasi@e everything.



Do into specific detail. The more details you elicit* the more you emphasi@e the event eing descried. ;f the witness testifies* ";

was wal,ing down the street when the defendant pulled a gun on me and said* %Dive me a hundred dollars*%" the jurors might miss

the gun reference. ;f you wanted to emphasi@e it* you could rea, in at that point and elicit details:

: )hat color was the gun A: !lac,.: Aout how ig was it A: retty compact* aout the si@e of an open hand.

: Short arrel or long arrel A: Short. ; would call it a snu=nosed gun.

: Automatic or revolver A: 7evolver.

>hange your +uestioning pace or pattern. ;f you have een conducting a normal direct e9amination* you have een as,ing simple

neutral +uestions such as ")hat happened ne9t*" and ")hat did you see" ;f you suddenly vary the type of +uestion you as,* it

emphasi@es the testimony to follow. <ou can use a signal +uestion* such as "'ow thin, aout your answer carefully* and tell the jury

..." r* you can change from narrative +uestions to slow* narrow* detailed +uestions.

>hange your position or the witness%s position. 6or e9ample* if you have een standing near the corner of the jury o9* you couldwal, over to your tale efore as,ing an important +uestion. r* you can as, the witness to step to a diagram just efore eliciting

some crucial fact.

Cse visual aids.

7epeat the evidence. 7epetition can ta,e three forms: similar testimony from different witnesses* similar testimony elicited more

than once from a single witness* and repetition of testimony y the attorney.

d. 5a,e sure the jury elieves your evidence. Several techni+ues help enhance the witness%s trustworthiness.

8nhance the witness%s personal crediility. Suject to the rule prohiiting olstering* it is helpful to show that a witness is li,ely to

e credile in this particular case. <ou can show the witness is uniased* has good social standing* has e9perience* etc.

8nhance the crediility of the witness%s story y proving that the witness has a good memory* did things to preserve recollection

such as ta,ing notes* and y eliciting detailed testimony aout the event itself. )hy does the witness rememer Gow can the

witness e sure

rove the witness%s e9pertise and familiarity with the suject=matter. A witness%s opinions and oservations of other events and

people is more credile if the witness is familiar with that type of event or the people involved. ;f a witness is going to descrie a

traffic accident* ring out that the witness used to e a ca driver. ;f a witness is going to testify aout the condition of the testator at

the time a will was e9ecuted* ring out the witness%s ,nowledge of the details of the testator%s general life* family* haits*

mannerisms* and so forth.

rove motives that are consistent with conduct. eople do things for reasons. ;f the reasons and motives are e9plained* the conduct

ma,es more sense. ;f a witness acted out of hait* jealousy* love* shame* curiosity* or any other common emotion* proving the

emotional state will ma,e the conduct seem more logical.

Admit your wea,nesses.

2&3 As, proper +uestions

As, only one +uestion at a time* and not a +uestion with several parts.



Avoid negatives in the +uestion* if possile. $on%t as, +uestions li,e: "<ou do not ,now whether Jones was there"

5a,e the +uestion rief.

Cse simple words that everyone will understand.

Avoid leading +uestions. Bet the witness testify in his or her won words.

2(3 erformance suggestions:

!e honest and sincere. <our personal integrity is vital. 'o "cheap shots."

5anifest confidence and elief in the witness. Show the jury that you elieve in the case you are presenting. Act li,e you care.

!e professional. ;t is always etter to err on the side of eing too formal than let your performance slide into sloppiness* slouching*or the dreaded "country lawyer" approach.

7espect the judge without ecoming suservient. 'o rown=nosing.

Address all remar,s to the ench. $o not spea, directly to the opposing lawyer* and do not ma,e comments to the jury.

As, permission to approach the ench* the witness or the jury* or to have the witness step out of the witness chair.

Cse a conversational tone of voice. !etter to e too loud than too soft.

Bet your voice reflect the emotional level of the e9amination. <ou proaly should +uestion a physician in a formal* professional

manner* ut when you e9amine an injured child* let your voice reflect your compassion and understanding.

$on%t let negative feelings show in your face and voice. ;f disaster happens* don%t reveal that you are angry* irritated* or frustrated.

$o not try to suppress all human emotion. Baugh if something funny happens. ;f you win a difficult attle over an ojection* allow

yourself a +uic, smir, of triumph.

)atch the witness* so you see what the jury is seeing. )atch for signs of nervousness or confusion. !e careful not to get distracted

staring at your notes.

)atch the judge. Boo, for signs of irritation or a raised eyerow. <ou also need to watch for visily negative reactions that could

affect the jury* such as the judge sha,ing her head in diselief.

)atch the jury for their reactions. Are they attentive* ored* falling asleep Gave they egun to loo, at your witness li,e the witness

has some loathsome disease

Feep an eye on opposing counsel. Some unethical attorneys may try to distract the jurors% attention away from the directe9amination.

2-3 89hiits have their own special procedure:



5ar, the e9hiit with a letter or numer for identification. This is often done y the attorneys efore trial* ut you also may re+uest

the cler, or court reporter to mar, e9hiits just efore you use them.

Bay the appropriate foundation through your witness* referring to the e9hiit only y its identification mar,. <ou may not state what

the e9hiit is4 only the witness may do so.

Show the e9hiit to opposing counsel or as, the court if opposing counsel would li,e to e9amine it. 7ememer that you are not

supposed to ma,e any remar,s directly to your adversary* so it is improper to turn to your opponent and as,* "5arva* do you want

to e9amine this" or for you to wal, over to the other counsel tale and engage in a whispered conversation aout the e9hiit.

6ormally offer the e9hiit into evidence* referring to it only y numer or letter. 6or e9ample* "<our Gonor* we offer defendant%s

e9hiit > into evidence."

;f appropriate* hand the e9hiit to the ailiff 2or directly to the judge3 for the court to e9amine. <ou proaly should in all cases as,

if the judge wishes to view the e9hiit.

The opposing lawyer may conduct a voir dire e9amination of the witness concerning foundation matters* and/or may ma,e

ojections to the admission of the e9hiit.

The court rules on whether to admit or e9clude the e9hiit.

;f the e9hiit is admitted* pulish it to the jury. )ith simple documents and photographs* you can distriute copies to individual

jurors. 7eal evidence can e passed among them. ;n either case* you should re+uest the court%s permission to approach the jury.

Barge diagrams or charts can e placed where all jurors can see them. ;f anything aout the e9hiit needs to e e9plained* you must

do so through witness testimony == you are not allowed to tal, aout the e9hiit yourself at this time without e9plicit permissionfrom the court.

23 $emonstrations and e9periments

a. 6oundation:

)hether to allow a demonstration is a matter left to the discretion of the judge.

The demonstration must e relevant and not unduly prejudicial.

The witness affirms that s/he can accurately recreate the event.

The judge is satisfied that conditions in the courtroom are "sufficiently similar" to those e9isting at the time of the original event to

ma,e the demonstration reliale. Hariations in conditions generally affect weight* not admissiility.

. ersons other than witnesses* such as attorneys and jurors* generally are not allowed to participate in demonstrations.

c. Tactical considerations

5a,e sure the demonstration faces the jury* so they can see the event unfold. ;f you want the jury to see what the advancing

gunman loo,ed li,e* the witness must demonstrate it in a way that the gunman advances toward the jury.

;t is very difficult for one witness to demonstrate what two people were doing simultaneously. $emonstrations are more effective if



the witness is demonstrating what one person did.

<ou should not participate in the demonstration. <ou are not a witness and cannot place evidence into the record. ;f you cannot plan

a demonstration that the witness can conduct with you out of the way* then don%t do it at all.

;f you need a second person in a demonstration* use the jury. ;f you want the witness to demonstrate that she was close enough tothe roer to see his face clearly* as the witness to demonstrate that distance in relation to the front row of jurors* not in relation to

you* to your co=counsel* or to some inanimate oject in the courtroom.

$o not conduct a demonstration without rehearsing. This means you proaly should never as, a witness on cross=e9amination to

demonstrate anything.

Save them for important facts. $emonstrations* li,e e9hiits* will emphasi@e the facts eing demonstrated.

d. 5a,ing a record of a demonstrations* gestures* etc. ;n addition to formal demonstrations* witnesses will use gestures to help

e9plain their testimony: They point to the accused* indicate si@e with their hands* and sha,e their heads in answer to +uestions. <oumust ma,e sure that this nonveral conduct is translated into words so that it can e recorded y the court reporter. )e are all* of

course* familiar with one common way of doing this == the attorney announces* "5ay the record reflect that the witness has pointed

out the defendant." Tactically* it usually is etter for witnesses to provide the veral descriptions in their own words. 6or e9ample* if

a witness indicates a distance with his or her hands* you can as, the witness to estimate that distance verally. ;f the witness does

so* no further statement need e made for the record. The following transcript indicates how demonstrations might e included in

the record:

: )hat happened ne9t A: )e were standing in front of the trailer when the defendant turned to his wife and said he was going to

eat the stuffing out of her if she didn%t get ac, inside.: Gow close were you standing to him when he said this A: 7eal close* aout as far as from here to that chal,oard there.

: So you were aout four feet apart A: <es.

: $id you oserve the position of the defendant%s arms at that time A: <es* ; did.

: )ill you demonstrate to the jury what the defendant did with his arms as he made the threat A: Sure. Ge made fists li,e this

KdemonstratesL and too, a step toward her li,e this KdemonstratesL.

: )e have to put this into words for the court reporter. $escrie e9actly how the defendant was holding his fists. A: !oth fists

were douled Kdemonstrating againL* down at his side. Ge too, a step toward her and held the left fist up at shoulder level and the

right fist aout at his waist* li,e a o9er%s stance.

23 7efreshing recollection

a. ;nformal method == used if witness forgets one detail

As, a leading +uestion

. 89ample of informal method:

: $escrie what you saw A: ; entered the room. The were several overturned chairs* and a pinall machine on my right. ; saw the

victim lying on the floor* and the defendant standing over him with a revolver in her hand.: $o you rememer seeing anyone else in the room A: ;%m not sure.

: )as the defendant%s sister there too A: h* yes.

c. 6ormal method == used if witness forgets a whole loc, of testimony. The most common method of refreshing recollection is to



show the witness a writing. roper procedure consists of the following steps:

8stalish that the witness%s memory is e9hausted

5ar, a document for identification

Show the document to opposing counsel* or refer to it y page and line if it is a deposition.

Gand the document to the witness

As, the witness to read silently the specific portion of the document that covers the forgotten material

7etrieve the document

As,ing the witness if his or her memory has een refreshed

>ontinue the e9amination if the witness now rememers the information

03 7edirect e9amination. Dive some advance thought to planning your redirect e9amination. <ou should e ale to anticipate what

,inds of impeachment your opponent will attempt* so you can plan how you will rehailitate those witnesses.

6. >7SS=8IA5;'AT;'

213 The most important facts to ring out on cross are facts that help you prove your case:

6avorale testimony on a contested issue. ccasionally* a witness called y your opponent to testify against you on one issue will

possess significant information you need to help prove a contested issue. ;f the favorale testimony was mentioned on direct* you

can reemphasi@e it on cross. ;f the matter was avoided* then you should ring it up on cross=e9amination unless the topic cannot e

raised ecause of limited scope rules.

Testimony corroorating your main witnesses. ;t often will e possile to elicit testimony on cross=e9amination that enhances the

crediility of your witnesses y corroorating parts of their testimony. The possiilities are endless. ;t can e as simple as eliciting

testimony that your witness was present at the scene* or as comple9 as ringing out evidence of the truthful character of one of your

witnesses. The most fruitful line of in+uiry is li,ely to concern the opportunity for your own witnesses to oserve the events. An

adverse witness* especially one who uses a diagram of the scene to aid his or her direct e9amination* always should e ale to

corroorate that there would have een a good line of sight from another location. Csing opposing witnesses to corroorate the

actions of your client also is important. 6or e9ample* if opposing witnesses saw your client trying to avoid an accident* rendering

assistance to the victim* or driving safely just efore it occurred* or if they overheard your client%s e9planation of the events* you

should ring out these facts.

Testimony consistent with your theory of the case. 7arely are more than a few issues really contested in a trial. The controversy

usually oils down to a few disputed facts. 8ven if nothing else is possile on cross=e9amination* you always can elicit testimony

aout those uncontroverted facts that form part of your theory of the event. rof. !ergman uses the e9ample of a petty theft charge

for shoplifting a calculator. n direct* the defendant admits putting the calculator in his poc,et* ut denies intent* claiming hestepped out of the store only to get his chec,oo, from his wife. The cross=e9amination of the defendant could consist of the

following +uestions on uncontested facts:

. So you did pic, up the calculator



. And you put it in your poc,et

. Then you wal,ed to the nearest e9it

. And left the store

. And all the time you never too, the calculator out of your poc,et

23 ;f the witness has hurt you* you will also want to impeach the witness%s crediility.

The witness has a personal motive to testify falsely ased on ias* prejudice* or interest

The witness has previously een convicted of a crime* which shows the witness to e the type of person who would lie.

rior inconsistent statements may indicate that the witness has lied on one occasion.

rior inconsistent statements cast dout on how well the witness is ale to rememer the events.

;naility to recall collateral details of similar importance may cast dout on the reliaility of a witness%s memory. 6or this ,ind ofcross=e9amination to e successful* the facts forgotten must e of e+ual importance to the facts rememered. ;f a witness claims to

rememer a startling event 2"; saw the defendant pull a shotgun and shoot two people."3* it proaly will e a waste of time to as, if

the witness rememers what other people were doing.

rove the witness was at an unfavorale vantage point from which to view the events.

$emonstrate that the witness has physiological limitations* such as poor eyesight or hearing.

Show that the witness was in poor condition to oserve at the time of the event due to into9ication or fatigue.

Show physical conditions limiting the witness%s opportunity to oserve the events* such as ojects ostructing the witness%s view*

inade+uate lighting* a great distance separating the witness from the event* distractions* or a very short time in which to ma,e

oservations.

!ring out testimony that is impossile or inconsistent with common sense 2ut don%t confront the witness aout it3.

8stalish inconsistencies with other* more credile* witnesses.

2#3 Avoid high=ris, topics.

a. Safe topics are those where you have a reason to elieve that the witness will give a favorale answer and you have the aility to

refute a ad answer:

<ou are as,ing for information the witness has previously given in a statement or deposition that would e admissile as a prior

inconsistent statement if the witness testifies differently.

<ou are as,ing aout information the witness should ,now which is also contained in admissile e9hiits* such as photographs or

records of criminal convictions.

<ou are as,ing aout information the witness should ,now that other more credile witnesses will testify to.

. 5edium=safety topics are those where the nature of the case raises a li,elihood that the witness will give favorale testimony* ut

you have no direct way to refute a ad answer. Cse them cautiously.

<ou are as,ing for facts consistent with human e9perience where an unfavorale answer would contradict common sense.



<ou are as,ing the witness aout facts in situations in which the witness assumes that an independent refutation witness is availale.

<ou want the witness to confirm something implied in a prior statement* ut the witness has not previously een as,ed directly

aout it.

<ou are see,ing to prove that something did not happen ecause the witness says nothing aout it in an otherwise detailed prior

statement. 6or e9ample* if a police officer%s accident investigation report is silent on whether your client had een drin,ing* there is

a li,elihood that the officer will admit that there was no evidence of into9ication. >ommon sense tells us that a police officer would

have reported into9ication.

c. Gigh ris, topics are those where you engage in wishful thin,ing. >ircumstances suggest that a witness might ,now something

relevant* ut the witness has never said anything one way or the other. Thus* you have no solid asis to elieve the witness%s

testimony will actually help you* ut the witness also has never e9plicitly said anything to the contrary* so 2you thin,3 maye the

witness will une9pectedly provide favorale evidence.

The witness acted inconsistently with the fact sought. 6or e9ample* a witness who says he was "eating pi@@a and watching TH" will

proaly not confirm that there was a ,nife fight going on* ecause it is unli,ely that anyone would calmly eat pi@@a while ,nives

are eing waved aout.The weight of the testimony of other witnesses is to the contrary.

The evidence would contradict common sense. 6or e9ample* if you are cross=e9amining an eyewitness to a crime that occurred at

night ut in a well lighted par,ing lot* it would e ris,y to as, whether it was too dar, to see clearly.

;t contradicts something in the witness%s own prior statement.

2&3 rder of topics

Gigh safety favorale evidence on contested issues.

Gigh safety evidence that corroorates your main witnesses.

5edium safety favorale evidence.

5edium safety impeachment evidence.

Gigh safety impeachment attac,ing the witness%s testimony.

Gigh safety impeachment attac,ing the witness personally.

6inal topic that scores a ig point

2(3 )hat does a good cross=e9amination +uestion loo, li,e

Beading

Simple and rief

'on=argumentative. As, aout facts* not conclusions.

Cse the witness%s own words whenever possile.

!rea, your topics down into the smallest possile units* and as, aout each one separately.



As, only one fact per +uestion.

$o not repeat damaging direct e9amination.

$on%t as, the witness to e9plain an answer.

-3 reparing to cross=e9amine.

Assemle the file efore trial. <ou should have with you in court* in one file* all the necessary documents for cross=e9amining the

witness: 13 your written cross=e9amination +uestions4 3 all prior statements* depositions* or other writings of the witness that could

e used to impeach inconsistent trial testimony4 and #3 any e9hiits or certified copies of convictions you may want to introduce.

Bisten to the direct e9amination. 'ever assume a witness will testify in e9actly the same way at trial as the witness did in a

deposition. )itnesses occasionally will say e9traordinary things or may open the door to previously inadmissile evidence that you

may miss if your attention is focused elsewhere.

$ecide whether to aandon any planned +uestions. !ased on the direct e9amination* you may face a decision whether to forgo

+uestions ecause they were covered on the direct e9amination. Denerally* of course* you should proceed with your planned cross=

e9amination. 7epetition of favorale evidence is a good idea. Gowever* in three situations you may choose to forgo a line of

+uestions: 13 <ou may have to drop some topics ecause your opponent limits the scope of the direct e9amination4 3 <ou may

decide to forgo impeachment if the impeaching effect of some prior act is e9plained away4 or #3 The witness may une9pectedly put

evidence in a more favorale light than you e9pected* and might retract it or dilute it if you repeat the +uestion on cross=

e9amination.

$ecide whether to impeach y prior inconsistent statement. viously* you cannot ,now in advance whether a witness will give

direct testimony inconsistent with prior statements. Bisten during direct e9amination* and decide whether it is worth impeaching

any inconsistencies. ;n general* the only statements you are concerned aout are those where the witness changes from favorale to

unfavorale testimony. ;f the witness gives inconsistent statements on unimportant issues* you proaly should forgo impeachment*

unless you can string together a lot of small inconsistencies.

23 $ifficult or evasive witnesses.

As, the witness to limit his or her answers to "<es" or "'o"

5ove to stri,e volunteered or evasive portions of the testimony

As, the judge to instruct the witness to limit his or her answers to "<es" or "'o"

;f a witness evades your +uestion* repeat the +uestion or have it read ac,

23 ;mpeaching )ith A rior ;nconsistent Statement

a. repare an inde9 of prior statements and depositions. <ou must e ale to find the specific prior statement when you need it. Thesimplest way is to note eside each +uestion you prepare e9actly where it came from. ;f it is a high safety +uestion that comes

directly from lines 11=1# on page forty=si9 of the witness%s deposition* you might ma,e some notation li,e "$&-/11=1#" in the

margin eside your +uestion. <our partner can follow along* and if you need to impeach* your partner can instantly hand you the

right line in the deposition.



. !asic principles.

;mpeachment is not the same as refreshing recollection. ;f* in answer to a safe +uestion ta,en directly from a prior statement* a

witness testifies he or she does not rememer* then you may choose to refresh recollection. Gowever* if a witness gives an answer

une9pectedly different from one contained in a prior statement* it does not mean the witness has forgotten the facts. <ou cannot

refresh memory when the witness claims to e ale to rememer 2nor has a proper foundation een laid to allow it34 you must

impeach and show the current memory to e unreliale.

<ou are not trying to tal, witnesses into changing their testimony* ut to prove they are unreliale. <ou are supposed to e

impeaching* not trying to tal, the witness into changing his or her testimony. <ou must accept the fact that the witness%s memory

has changed. 'o matter how sure you are that it was just an inadvertent misstatement* you will not convince the witness to testify

differently* no matter how many times you as, the witness to re=read a prior statement. The only thing that will happen if you try is

that the witness will just repeat and emphasi@e the unfavorale testimony* you will have completely lost control of the e9amination*

and you will have wasted the opportunity to impeach. ;f it turns out the witness actually had made only an inadvertent

misstatement* the witness proaly will ma,e the correction anyway when confronted with a prior inconsistent statement* so youlose nothing y assuming the worst and impeaching accordingly.

;nconsistent testimony does not mean the witness is evil. )hen a witness testifies to facts different from those contained in a prior

statement* it may e an inadvertent misstatement* a result of the natural process of erosion of memory. ;t might e an intentional

change due to delierate perjury* ut is not necessarily so.

<ou impeach direct e9amination testimony* not cross=e9amination. The general rule governing impeachment y prior inconsistent

statements is that you may impeach facts testified to on direct e9amination only. ;f you ring up an issue for the first time on cross=

e9amination and get ad answers* your only recourse is to aandon the line of testimony.

<ou may impeach specific factual assertions* not inferences. <ou can impeach a witness who disagrees with a specific fact or

opinion written down in a previous statement. Gowever* if the witness disagrees with your interpretation of those facts* that cannot

e impeached. 6or e9ample* suppose a witness stated in a deposition that the defendant%s car was traveling -? miles an hour* ;f she

testifies the car was going #? miles per hour* you can impeach. ;f you as, for an interpretation* such as ")as the car going very

fast" and the witness says "'o*" you cannot impeach her y proving that she once said the car was going -? miles per hour.

;mpeachment always entails ris,. )itnesses will often e ale to e9plain away an apparent inconsistency* and you will often e

unale to successfully complete the impeachment. Therefore* conduct this ,ind of impeachment with other ris,y cross=e9amination

== in the middle.

c. Techni+ue

Boc, the witness into a definite answer without unnecessarily repeating the unfavorale testimony. 8mphasi@e the prior version* not

the damaging trial version. 8.g.:

: The light was green* wasn%t it A: 'o* it was red.

: 'ot green A: 'o.

rove that a prior statement on the suject was made y as,ing the witness aout it* eing specific aout the time* place* and

circumstances. 8.g.*

. $o you rememer tal,ing to an investigator named Sarah 6randsen at your house A: <es.



: That was on Septemer 1- A: <es.

: She as,ed you aout the facts of this case* right A: 7ight.

: $o you rememer answering +uestions aout the scene of the accident A: <es.

7eveal to the jury that the prior statement on this specific suject was materially different. The easiest way to do this is to read

aloud the precise inconsistent passage and as, the witness to confirm that he or she made it.

: $irecting your attention to the second line in the second paragraph of that statement* did you say: ")hen the car drove through

the intersection* it had a green light"4 or

: $irecting your attention to page four* lines four through seven* is it true that you were as,ed these +uestions and gave these

answers: uestion: " )hat color was the light"4 answer: "Dreen"4 +uestion: "Are you certain"4 answer: "<es"

As a courtesy* you might lean over and show the witness the page and line you are referring to* ut do not hand the document over

to the witness and as, the witness to peruse it. <ou are not trying to convince the witness the testimony is inconsistent* ut the jury.

$o not introduce the statement itself unless the witness denies or does not rememer ma,ing it* in which case you may introduce itand read the inconsistent portion to the jury. Cnder 6ederal 7ule of 8vidence -1#* the statement is admissile without further

foundation.

203 ;mpeaching )ith A rior ;nconsistent mission. The most difficult ,ind of impeachment is to demonstrate that trial testimony is

inconsistent with what was not said in a prior statement. To successfully impeach under these circumstances* you must estalish

that the failure to mention a fact in the prior statement is the e+uivalent of an e9plicit statement that the fact did not e9ist* ecause

the person would surely have mentioned it if it had happened. The omitted fact must e at least as important as other major facts

included in the statement. ;f you decide to attempt to impeach ased on a prior omission* you must add one preliminary step to the

impeachment techni+ue discussed for prior inconsistent statements: eliminate the possiility that the fact testified to wasinadvertently omitted ecause the witness thought it unnecessary to include it. 8.g.: : fficer Jones* you investigate many similar

cases* don%t you A: <es.

: <ou often have to testify later* don%t you A: <es.

: $o you prepare an accident investigation report for each one A: <es.

: And use them to refresh your memory aout a particular case efore trial A: <es.

: They help you ,eep the facts straight A: <es.

: So it is important that you e accurate in these reports A: <es.

: <ou include all facts that might have some earing on who was at fault A: f course.

: And you would include any facts that showed one driver might have violated a traffic law* isn%t that correct A: <es.

: $o you also write down if anyone was seriously injured A: <es.: Ganding you defense e9hiit ! for identification* is this the report you prepared in this case A: <es.

: n direct* you testified that the defendant was into9icated* didn%t you A: <es.

: lease loo, over your report and answer this +uestion: $id you ma,e any mention whatsoever of any evidence of into9ication

A: 'o.

: The plaintiff did not appear to e seriously injured* correct A: 'o* he loo,ed seriously hurt.

: Again* ; direct you to your report. ;s there any mention in your report of anyone eing seriously hurt A: 'o.

: ;n fact* you wrote that the plaintiff only appeared "sha,en*" isn%t that right A: <es.

21?3 7e=cross e9amination is discretionary4 usually a ad idea.

D. >BS;'D A7DC58'T

213 ;mproper arguments



Appeals to sympathy* e.g.* referring to the tears of the victim%s parents or the client%s recent heart attac,.

Attempts to arouse racial prejudice

Appeals to religious prejudice* e.g.* anti=Semitic remar,s

Ienophoic arguments against foreigners

Appeals to prejudice against corporations as large* wealthy or unfeeling

7aising the relative financial conditions of the parties* discussing insurance 2unless already in evidence3* or otherwise arguing that

the verdict should depend on aility to pay

As,ing jurors for vengeance* especially arguments that they should listen to the demands of the community and use this opportunity

to get even for all the wrongs done to society* e.g.* y lin,ing a defendant with the prolem of crime and drugs that is out of control*and suggesting that the community wants something done aout the drug prolem

As,ing jurors to ma,e an e9ample of the defendant or send a message to the community that they will not tolerate violence

Appealing to jurors% fears for their personal safety or suggesting that they will personally suffer 2through higher ta9es or insurance

premiums3 if they return a particular verdict

ersonal attac,s on other lawyer

ersonal comments aout yourself or your opinions.

Arguments that jury should ignore or evade unpopular laws

"Dolden rule" arguments that jury should put themselves in the position of a party and as, what they would want.

23 Should you oject

a. 7easons to do nothing

The improper argument is trivial

The argument is unimportant to your theory of the case

<ou%ve already made several ojections and you sense that the jurors are growing impatient

<our opponent is e9aggerating or misstating the evidence and you have no further opportunity to respond. ;t is unli,ely that the

judge will rememer precisely what the witnesses said* and he or she will proaly overrule you* instructing the jury that their

recollection of the testimony controls.

. 7easons to oject

<ou%ve already given your last argument and have no opportunity to retaliate or respond



The improper argument concerns a misstatement of law

<our adversary is committing serious error that will prejudice your client: as,ing the jury to speculate* +uoting damage verdicts

from other cases* ma,ing a direct appeal to emotion or prejudice* or commenting on suppressed evidence or the defendant%s silence

#3 Bast=minute preparation: 5a,ing changes during trial

$uring opening statement* note overstatements or e9aggerations made y your opponent. These can e used later to argue that the

other side has failed to prove the case they promised.

$uring the e9amination of witnesses* you can note the e9act words used y a witness at a critical time* so that they can e +uoted

accurately. ;f any evidence is une9pectedly e9cluded* that too should e noted so that you do not inadvertently refer to evidence

outside the record.

;f either side is granted a partial directed verdict* or concedes an issue* whole sections can e eliminated from your argument.

2&3 Deneral principles of argument

7eiterate your theory of the case and ma,e sure the jurors understand it. The importance of having a single* clear* simple theory

cannot e overstated. ;t provides direction to your jurors. Alternative theories merely divide your forces into two groups that may

start fighting with each other. Stic, to it.

8mphasi@e favorale evidence* ut don%t waste time with a detailed rehashing of every detail as if the jurors were too stupid to

rememer anything. Spend your time arguing your own case* not your opponent%s. 8mphasi@e your strengths and concentrate onyour main points. $iscuss your opponent%s case only to the e9tent necessary to refute it riefly.

7eut your opponent%s allegations.

89plain the law and show how the evidence satisfies all legal re+uirements for a verdict in your favor.

5ost importantly* reduce your case to a good story* including plot* motives* adventure* attles etween good and evil* human

wea,nesses* temptation* drama* and a moral at the end.

Feep it simple. Simple does not mean simplistic4 it means uncomplicated. >oncentrate on the real disputes* resist the temptation tooffer several alternative theories* and avoid ecoming ogged down in reviewing uncontested or trivial matters. 89periments y

social psychologists indicate that aout seven points are all you can argue persuasively. After that* arguments ecome confusing.

!e specific. 6acts are more important than generali@ations or rhetoric. !e specific aout the important factual points* and the details

that corroorate them. $on%t just say you have proven that the goods were delivered* remind them which witnesses testified to the

delivery and show them the warehouse receipt.

!e e9plicit. sychologists have demonstrated that an argument is more persuasive if the desired conclusions are e9plicitly drawn

than if you leave it up to the jury to draw its own conclusions. Although in theory jurors might hold more strongly to a conclusionthey reach on their own* if you do not suggest a conclusion* the juror may reach a conclusion you do not li,e.

!e organi@ed.



Cse visual aids. resumaly* you introduced e9hiits during trial for a reason. Cse themM !ut do not limit yourself to e9hiits

already introduced. >harts can e prepared specifically for closing argument* and arguments can e illustrated on the lac,oard.

The uses of descriptive e9hiits are as varied as your creativity. <ou can list the elements of a cause of action* summari@e evidence*

calculate damages* draw a s,etch of an intersection* and so on. The only re+uirement is that your e9hiit e supported y the

evidence. Some attorneys prefer the apparent spontaneity of lac,oards4 others prefer charts prepared in advance ecause they

cannot e erased y your opponent and you cannot ma,e an inadvertent error on them.

Support your positions with jury instructions. 7ather than just summari@e all the law at one time* weave instructions into the faric

of your argument. ;f you are arguing that a witness is not credile ecause the witness made a prior inconsistent statement and is the

plaintiff%s friend* that would e a good time to read a jury instruction that prior statements and ias may e ta,en into account in

determining crediility.

Cse the theme from your opening statement.

ersonali@e your client and depersonali@e the adverse witnesses. <ou should ma,e conscious efforts to personali@e your client y

referring to him or her y name and telling the jury personal things aout your client%s life. Similarly* you should depersonali@e theother side%s witnesses* e.g.* y referring to the adverse party generically 2e.g.* the defendant* the corporation* the deceased3 or with

negative laels 2e.g.* the to9ic=waste company3.

Cse analogies to common e9periences. ;f you thin, a jury may have difficulty understanding a legal concept* try to analogi@e it to

some common e9perience. The classic e9ample is the e9planation of circumstantial evidence: suppose you got up one morning and

saw a foot of snow on the ground that was not there when you went to ed. <ou can e certain it snowed during the night even

though no eyewitness saw it.

Admit your wea,nesses. 8very case has wea,nesses. <ou should confront those inherent in your theory* admit them* and deal withthem as est you can. The jury is proaly already aware of them from the evidence* and your opponent is sure to ring them up* so

you cannot ma,e them go away. Therefore* you might as well at least earn points for candor and honesty. Gowever* the dividing

line etween a candid discussion of your wea,nesses and a defensive argument that focuses on your opponent%s evidence is a fine

one. ;t is not necessary to confront every piece of contradictory evidence. 7ather* you should discuss and e9plain away the major

wea,nesses in your own theory.

!e consistent with physical evidence and common sense.

Try to ma,e it appear that your case has more support == a greater +uantity of evidence* or a greater numer of credile witnesses.

Avoid rhetorical +uestions

2(3 resentation suggestions

;nformality is usually etter than formality* ut don%t get too sloppy or casual

5aintaining a courteous* professional demeanor is usually etter than sarcasm* anger* or any other childish outurst. Try not to e

rude* arasive* or ono9ious.

Gistrionics should e used sparingly. <ou are li,ely to e more effective if you adopt a friendly* conversational manner than if you

attempt to mimic the dramatic techni+ues of the actors who portray lawyers on television. Gowever* this does not mean you should

never use dramatic techni+ues* only that you should save them for the most important points in your argument.



)hen the facts are emotional* you should display an emotional reaction yourself. ;f you represent a client who was crippled in an

automoile accident* or are prosecuting a rape case* don%t tal, aout the victim%s plight in dry* matter=of=fact terms. Bet your voice

e9press your sympathy and your outrage.

!e careful aout using e9aggeration and hyperole. 7ememer that your person crediility is on the line* and if you say outrageous

things that are not true* the jury will elieve you less.

'otes should e used as minimally as possile so that your overall presentation is e9temporaneous and conversational. Aove all*

do not read your closing argument.

5aintain eye contact with the jury. Boo, from juror to juror during your argument* not at your notes or the floor. ;f loo,ing directly

at jurors ma,es you uncomfortale* loo, etween two jurors.

Avoid standing ehind a lectern. ;f you need the security of a lectern* try standing eside it rather than hiding ehind it.

>ontrary to what your mother told you* don%t spea, slowly and distinctly. Slow speech is oring. Hary the pace* and don%t e afraidto tal, +uic,ly.

trial procedure and tactics

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