Effective Trial Preparation | Cordell & Cordell

by: Cordell & Cordell

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next up Rick Julius who's a lead litigator in our Pittsburgh office who is here to talk to you about something we all can work on which is effective trial preparation Rick is also a rising stars you've heard Joe talk about earlier and members of our Pittsburgh office in 2014 and 15 so Rick turn it over to you we're gonna go tell 310 and then we'll take a break ten 20 minute break and then we will finish up with our ethics presentation so a little bit of a change of pace in my presentation one you're just gonna have to hear from me the entire time I don't have a partner on this one too my topic is very broad especially in comparison to the topics that we've had to discuss today so I'm gonna invite any any participation during the the process because for the most part we're talking about things that you really learn more from experience than you do from somebody talking up on a stage or reading a book or even you know law school classes my background in litigation is is sort of unique in that I worked for a very small firm as a law clerk when I when I got my bar results I wrote a brief on a case while I was a law clerk and it just so happened that I got my bar results like a day before that particular case went to trial and then the attorney who was assigned to that case got sick so I literally picked up my bar card on the 8th floor of the the courthouse where the the Supreme Court offices and then I walked downstairs and and did a day long trial scary it's it's freaked me out it freaked me out four days after the fact but I tell that story because it was completely invaluable to what I learned as a litigator and sort of how I approached the idea of trial preparation the idea of litigation everything because you literally have to continuously do it you take whatever tips that that are gonna come today you know some are gonna register with you some are gonna be completely disregarded you know it's it's different for everybody but you have to find out what your own what your own comfort zone is what's your own niche is when it comes to litigation and start to hone in on your strengths and weaknesses fix what your weaknesses are focus on your on your strengths so I'm just going to go over a couple of different areas of a of a standard trial preparation I'm going to try not to touch too much upon you know issues that other folks have discussed you know in terms of business valuations and experts and and evidence type of stuff I'm going to try to keep it a little broader so in terms of background for the most part we have three big topics - the background of your trial when you come into trial even if your mind goes completely blank as to all the stuff that you want it to script all the stuff that you replayed in your head you know for for me and and my generation it's it's the the OJ trial Law & Order type of stuff that everything's going to be entertaining all the time and then you're going to have those big aha moments so that's what we picture in our head when we start to do trial preparation and as many of the more experienced litigators in the room can probably attest those hardly ever happen and if you get too much into the idea of what you've scripted in your head and exactly the way it's supposed to go you're gonna get sidetracked you're gonna get derailed you're gonna get uncomfortable and if you don't have a knowledge base underneath that you're gonna freeze and the other side's gonna take advantage of it or the judge is going to boot you out of the courtroom okay so just a couple of things as far as background know your audience know your surroundings and know your enemy your audience is absolutely key particularly in domestic litigation matters because more often than not it is a judge a master it's a hearing officer you know it pretty much do bench trials ninety-nine percent of the time and ninety-nine percent of the jurisdictions you do bench trials so when you step into a courtroom you're gonna need to know what that judges tendencies are what that judges feelings are on certain topics so never ever discount pretrial proceedings status conferences pretrial conferences things that the court schedules as a matter of process where you may be in there for fifteen minutes you know talking about do I need two days for trial or five days for trial are there evidentiary issues or they're pending discovery issues that sort of stuff that that you tend to want to walk into with fifteen minutes of preparation under your belt to say nothing bad can go can go wrong in this particular proceeding okay but while nothing bad can go wrong in those proceedings a lot can be gained from those proceedings talk to the judge talk to opposing counsel get a feel for what they like to hear and what their tendencies are because one you're going to be able to manage your clients expectations pretty heavily you're going to be able to manage your own expectations pretty heavily and once you get into the actual preparation of your trial you're gonna know what to focus on and what not to focus on now one of the one of the big things that you know I was able to come up without one of these pretrial conferences was a judge in in my home county Allegheny County who has some very progressive views and are a large part of our case hinged on the other side's drug habits and we had evidence that she was purchasing a very large amount of marijuana on a very regular basis so we're thinking all right we got a pretty good case here until we go in for a conciliation with the judge and I hear her say the words what's a little bit of weed oh I at least have time just from one stupid conversation about what are the issues in trial to now manage my clients expectations to say you know what maybe you're not gonna walk away with exactly what you want out of this because the judge is taking a very progressive stance on marijuana so you better come up with something a little bit more you know we have I had another case where in the same type of status conference we start to talk about things like what do you want in your pretrial statement I know what the judge wants in a pre-trial statement I've read the policies and procedures that give samples of all the stuff in the pretrial statements but this starts the conversation do you want all the factors listed do you want all the proposed findings of fact what issues do you want to have first and the judge starts talking here's the things that I really think are important in relocation cases so now I know where to focus my time maybe it's not on school district maybe it's on availability of extended family or some other aspects that maybe you wouldn't necessarily put at the forefront because they're just not in that order in the statute knowing your surroundings this is important in in terms of comfortability especially for new attorneys or attorneys that aren't very experienced in litigation get comfortable get in your room I mean I I do it in every setting I've been on this stage three or four times today because I wanted to get comfortable being here in front of all of you if you know what courtroom you're in what the settings are like you're going you're already going to replay or play forward what's going to happen in a big trial in your head over and over and over again this is where you wake up in the middle of the night and you're already cross-examining the opposing party in your head you're doing this anyway so get in the find out where you're gonna be where you're gonna sit where you're gonna stand where you're gonna be comfortable at in that room so when you're going through this over and over and over again in your mind you're in the right room you're in the right building you're in you're comfortable you're not up there jittering and and shaking and praying to God that you that you do everything right the way you've scripted it in your OJT i'll law-and-order version of it in your mind so also very big oh sorry technology materials equipment find out what the what's available to you in a court room now for me I practice in western Pennsylvania southwestern Pennsylvania I have cases or have had cases in the last couple of years in 19 different counties 19 different courts Allegheny County has 18 sitting family court judges just for family court Jefferson County has two maybe three judges and I think one of them is a senior judge handling all aspects of all cases okay you have to know whether you're walking into a fully equipped courtroom with a projector a 50 inch LCD screen all the hookups or whether you're walking in as I did last week and there's one of those old carts like you saw in grade school with with a crank knob television and a VCR on it you got to know what to bring with you you're not walking in with a thumb drive of video tapes and voicemails to plug into a VCR get a look at the place before you go out there talk to the people you need to talk to because if they do have the technology one you're gonna have to know how to work it because the last thing the judge wants is for you to go up there and start pulling wires out on something that they probably had to drive somebody in to hook up in the first place and spend four hours doing it to make sure that everything was comfortable talk to who you need to talk to get your get your technology set up get your equipment set up and always have a fallback have a back-up plan you know it sounds simple it sounds mundane but if you go to FedEx or staples or somewhere and you have maybe your your top four or five exhibits maybe it's maybe it's a custody calendar maybe it's a photograph that really hammers your case home have them in big printouts bring a foldable easel with you just to be able to display all of that because the last thing you want is to be driving at some County two hours away walking into court and all of a sudden the TV's not there anymore because another judge is using it down the hall or you're bringing your laptop and uh oh you forgot to plug it in last night and you don't have your power cord these are things that happen but if you have a fallback plan and you have preparation then you're going to be able to do just fine it's not going to be perfect it's not gonna be your law and order moment but you're gonna be able to put your case on no your enemy you have to be able to spend a couple of hours before you go to trial and put yourself in the shoes of the other side what are their strengths what are their weaknesses review their pretrial statement or their proposed findings of fact or even just their proposed orders of court with your client and say why are they asking for this what are they going to present do you have any skeletons in your closet you got to ask the skeleton question like four or five times I mean you ask it when it when you retain and they tell you no cuz they just met you then you ask it again a couple weeks later because something came up and the other side was a little too confident then you keep asking it you keep asking it and then pretty soon that's the day that you know you're five days before trial and your client shows up at your office completely unannounced can I talk to you Oh sure can let's let's find out what the other side has on you oh she stole my cell phone it's got all of the text messages with the prostitutes and the drug dealers in it keep asking I had asked five times before the client realized I was talking about the text messages with the drug dealers and the prostitutes don't just assume if you put yourself in the shoes of your enemy you will start asking those questions you will know to ask those questions assess the other side's personality how many people in here have had a case against that attorney you know the one that would just assume punch you in the face in the middle of the courthouse in order to win because he or she has to win and keeps track of their wins and tells you about their wins everybody you knew doesn't like those people judges when you know that you're up against one of those people have a plan on how you're gonna react you know how how are they gonna react how are you gonna react when this particular attorney insults your family you know makes fun of your clothes in front of you just tries to get a rise out of you you just step back you don't engage and you figure out exactly how the judge likes handling something like that you reach out to other attorneys you know of handled cases against that attorney or handled cases in front of that judge against a difficult opposing counsel and you figure out things like calmly asking them to act like a reasonable human being because nothing irritates that attorney so much as just bombarding them with kindness and customer service you know that that's the old email that just tears them a new one and then ends with have a nice weekend exclamation point that's how you you want to know that you want to know what you're up against when you walk into the courtroom because if if you don't know that person you've had limited contact with that person or for whatever reason you haven't been on the case long enough to know how this person acts then you're gonna get blindsided by and it is so easy so easy coming into a trial where you're already nervous you're already you know tense and and you want everything to go perfect to let that person knock you off your game in terms of opposing counsels assess what you're up against and whether or not they're experienced enough to know that they're not going to win a case in a conference room or a hallway or in a phone call nobody's ever won a court case in a conference room so if you have that attorney on the other side of your case or if you are that attorney beware because you can schedule these pretrial proceedings you can schedule a settlement conference on a case that you're know is never ever ever gonna settle but you walk in and you just start listening you know the right questions to ask because they're going to try to convince you when you walk into that settlement conference walk into that conference room that they're gonna put on a show for their client and they're gonna convince you that you're wrong I have yet in my legal career to convince another attorney that their case is completely wrong in a conference room I can do it in the courtroom not in a conference room so you use these to find that mutual ground and you get their case from them if I leave a settlement conference with 15 pages of notes I am at a distinct advantage over my opponent who I've given nothing to they don't know my evidence when I leave that settlement conference because either we're going to have some level of agree ability and we're going to be close enough that we know that there's a substantial likelihood of settlement or they're not knowing what any of my evidence is they'll get my evidence either when they they get it through discovery or at the very last minute that they can possibly get it so in terms of actual trial preparations now this is going to be applicable you know in in most jurisdictions but even from from County to County from judge to judge each judge has their own policies and procedures so I'm gonna go sort of across the board with it but opening statements very key part of your trial if your judge is going to allow you to do it because this is where you're going to sort of set the theme of your case you're gonna focus on your strongest evidence you're going to convince the judge to view everything that comes after in your theme if the other side goes up there and just sort of spouts off about you know please pick me or my clients right and there's no there's no theme to it then it's going to be a lot easier to convince that judge convinced that that hearing officer or master or whoever you happen to be in front of whoever your finder of fact is to start viewing everything under your idea what what your theme of the case is you want to make sure to explain your case in a way that you can start to assess where the judge is going to go with it or where opposing counsels going to go with it I love nothing more than to have opposing counsel object to something in my opening statement because now I know what bothers them now I know what they want to try to have tossed out I get a little better idea of what their theme is the only thing I love more than an opposing counsel acting to something on that is the judge offering me some sort of insight on it because the judge is going to have to respond to the objection you know what the judge is going to think is important or at least what the judge is going to hear about it or something as simple as a nod or I contacted the judge is even paying attention to what you say you know it can't be a long drawn-out explanation of things you focus on your best stuff you try to squeeze maybe a little bit of your questionable stuff in to get that feedback from the judge or get that rise out of opposing counsel and then you move on keep it consistent to the case that you're going to present do not mention anything in your opening statement that you don't have some amount of evidence to present on there are very few ways to lose credibility with a court than to make reference to something you have absolutely no ability to prove and once that happens or if the judge is constantly focused in on that when you're presenting your case and they don't get it then the last thing they're gonna think at the end of the case is how disappointed they are that you brought this up and that they thought they were gonna have some some pinnacle moments I'm deciding factor in this whole thing that just never happened the last part is is your conclusion don't just ramble on don't just summarize testimony or summarize evidence come up with a conclusion come up with a a definitive proposal that matches your theme and make sure that it's consistent you wanna you want to sort of go out on a pop not just sort of trail off when you're done reading your list okay


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we'll go over exhibits in evidence but not so much from from an admissible 'ti standpoint but more so from a preparation standpoint now I mean this is an area where again you're gonna have to get comfortable with whatever version of trial preparation works for you I'll go over some of the things that I do particularly when it comes to my clients I want to make sure that they have not only a copy of every exhibit that may possibly be introduced in the entire trial they need an explanation of what it is and why it's there these are people who have for the most part never been in a courtroom they are gonna be uncomfortable they are going to be sweaty they are going to their blood pressure is going to be through the roof they're not going to be thinking clearly you must have an educated client when it comes to your exhibits if they don't have it and they don't know why it is you're handing them something it might be something as simple as a bank statement but maybe this is the bank statement that you got directly from the bank and it doesn't look like the bank statement that they get in the mail every month and then you hand it to them thinking they know it already and you say can you identify this exhibit and they say I don't know not a whole lot of opportunity for rehabilitation once your client says they don't recognize their own bank statement not only has that bank statement not coming in because your client couldn't even identify it let alone authenticate it but then your client kind of looks dumb and unprepared not knowing that he just handed him his own bank statement and in 50/50 cases in these in these preponderance of evidence cases or preponderance of evidence credibility type of issues you've just notched one for the other team that might just push them over to that 51% there's too much particularly in domestic cases that hinges entirely on meeting that 51% being just a little bit more credible than the other side organize your exhibits what I do I make two sets one set is the exhibits exactly how I would like to get them in in front of the judge based upon the testimony of whatever witness I happen to call first whatever topics I want to discuss if if I feel that I can get my client more comfortable on direct examination I'll throw them the softball questions first the softball issues first but I also have a second set that is entirely arranged based upon subject matter and what that does is when things start to go a little bit off the course that you had them in before you can always come back to the topics okay you can keep one set because maybe you didn't get something admitted on direct and you need to know where it's at what topic it's under because it might come back up on the other side's case it might come back up when another witness testifies to something you can't just assume inadmissibility you can't assume admissibility and you want everything at your fingertips to be able to get it back in if you weren't able to the first time so I like to keep folders you know individual topics I might keep five or six exhibits perform a stop on whatever the whatever the topic is but I'll also put like a post-it note on the folder or right on the outside of the folder hey this is the stuff that I wanted to get in about this bank account or this person's Facebook posts but also a little blurb about why I want to get it in what is it relevant to what what factor that the judge happens to be considering at that point in time that way if for whatever reason you have that moment or maybe things are going off the rails a little bit are they are they you know the judge stained an objection to something that you are 100% right on and she's a hundred percent wrong on you can come back to the idea that you're already prepared in case your mind goes completely blank because some somebody's thrown you a curve ball if a document is already held to be inadmissible you're going to at very least have another crack at it in terms of the questions that you ask whether they be leading questions on cross or other questions through the course of either your direct examination or your redirect examination so don't don't get mad don't toss it on the floor throw it in a box that you keep at the end of the table like I that's gone because it looks really bad when you start rooting through that box again keep the second set keep everything organized in your mind don't get flustered when things don't go exactly according to your plan


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client preparation probably the biggest most important part of particularly a family law case way too much hinges on your client versus their client that's 80 90 percent of what's coming into court you need to make sure that your client is completely educated to whatever degree you possibly can throughout the litigation so that you get the right information the right evidence the right response the level of comfortability in that your client knows what he or she is talking about when when they get on the stand this should start from day one when you identify the legal issues at hand in whatever their case is if it's a custody case divorce case support case whatever that they know exactly what the court is going to consider during that time the more they know about that the better it is that they're going to give you the right evidence the right information they're going to be able to supply you with a more streamlined version of what the court is going to need I had a client once who during the course of discovery of course we had we have a 30 day response requirement discovery so on day 29 he shows up to my office and he's got the biggest Rubbermaid bin I've ever seen fold to the brim in paperwork I don't think there was a single staple paperclip I don't think any two sheets of paper and his entire Rubbermaid bin were in exactly the same orientation the client read over the Discovery asked me exactly zero questions wait until the last minute and brought every piece of paperwork he ever owned to my office if he knows what he's looking for what the court is looking for or what the other side is looking for if he asks the questions and I'm able to prepare him on that then he doesn't get the bill for me and my paralegal digging through a pile of crumpled paper to figure out what's a bank statement and what's an Arby's receipt it cost me time it costs him money nobody wins a more educated client is going to give you more information better information send the client summaries of statutes of cases it doesn't have to be a legal brief you don't have to worry that your citations are all in order you just have to tell them hey there's this case out there that says here's the information that we need or here's what the judge is going to consider on this particular issue and here's how it's going to impact your case one big thing that this cuts down on surprises in trial when the other side's up there testifying about something in your your client had no idea and now he's talking in your ear the whole time and you're trying to focus on what am I gonna cross-examine this other party with and you're trying to write your notes down and he's bumping up against he's got his shoulder Indian he's trying to write on your paper because he never gave you the information beforehand because he didn't know you have to make sure he knows exactly what they're looking for let the client know about the process of trial what is the other side going to do what is the other side going to ask him about how is the other side gonna knock him or her off their game all the stuff you've identified in the in the personality stuff that we had talked about your client needs to to be aware of because you also don't want it to look like you're allowing the other side to bully your client because that's the first thing that's gonna pop in your clients mind is how dare you let the other attorney ask me those tough questions client needs to know that those questions are coming the client needs to be fully prepared for those questions to come preparing a client for cross-examination is maybe one of the most subjective things that you will possibly do with a client you you can educate the client the same way the custody factors aren't changing you know what the court is considering is not changing from one client to the next but whether your client is somebody who's going to get mad and shout or swear it the opposing counsel on the record or whether your client is somebody that's going to completely shut down not answer a question and burst into tears and cause a 15-minute recess you got to be able to gauge this stuff ahead of time and you have to be able to warn them that if opposing counsels able to solicit this sort of response they're gonna have you and you have to be prepared for it because once you get down that line where your client is so uncomfortable that they're just talking they're gonna say whatever comes to their mind and then you have no control whatsoever of that situation so when it comes down to general client testimony in terms of preparedness you have to make sure that they are aware of the idea that there is admissible evidence and inadmissible evidence that there are court rules there's legal process there's time in between those questions that a lot of stuff has to happen you know one of the one of the best tips I ever got in terms of trial preparation before you let your client take the stand you tell them every single time opposing counsel asks you a question you count to three you have to let me assess the question give me an opportunity to object give me an opportunity to respond and at the same time that one two three is gonna be one big deep breath from your client okay it's gonna get your client more comfortable it's gonna eliminate this idea that they have to shout out the first thing that comes to their mind or they have to argue with opposing counsel the old how dare you ask me that question if your client says something like how dare you ask me that question it doesn't matter what his or her answer is the judge doesn't like it whatever the question was whatever it was designed to solicit there is already a presumption regardless of what answer comes out of his or her mouth that it is bad it is wrong for the client it is wholly in favor of that attorney who just got that rise out of your client practice the best way to get comfortable is practice that doesn't matter if it's in your conference room if it's in the court room if it's in the hallway you have to practice with your client they are already spending a lot of money to go to trial I have never seen a single case that didn't cost a whole lot of money to take to trial a couple hours of practice in a conference room or an empty courtroom is going to absolutely be worth it rehearse with your client but make sure they don't sound rehearsed if you know the first 10 or 15 questions that opposing counsel is going to ask your client and you start rehearsing answers to it they're going to be comfortable but they're gonna sound like a robot they're gonna sound like the reading from a car they're gonna sound like a telemarketer they're gonna get shaken up with the next question that falls back to the idea of know your theme if your client knows your theme they'll be able to respond to the other side's questions with at least some conscious idea of what it is you're trying to get across to the judge not what it is that opposing counsels trying to get across to the judge be tough on your client for the most part they're not your friends they are they're good people and you like them and some of them you like more than others they're not paying you to be their friend if your client sounds like a jerk tell your client he sounds like a jerk everyone in the courtroom is gonna know your client sounds like a jerk but once it happens in the courtroom it's done the judge thinks your clients a jerk he might not intend to sound like a jerk but he sounds like a jerk be tough on him tell him you can't talk like that you can't have you can't express those thoughts those opinions you can't react in the way you react some people just have a naturally condescending tone to their voice you know who doesn't like to be condescended judges tell them to change how they sound record them if you have to play it back for them if they're that stubborn to say no I absolutely disagree with you bring another attorney in you know I got a couple of attorneys in my office that we absolutely love to play good-cop bad-cop with clients you got that client that you're just afraid that if you tell him or her what you're thinking because you've been living it for the last six months that it's gonna come across the wrong way have a nice neutral other attorney from your office come in and sit in see if they see if they agree with you if they disagree with you maybe you're wrong and your client doesn't sound like a jerk if they do agree with you it's their job to tell him he sounds like a jerk doesn't damage your relationship at all but then it gives you something to point to as you go through your preparation to say stop sounding like you sounded when this other attorney called you a jerk okay at least once before you get into court your client should see that courtroom it goes back to the exact same thing that I talked about in terms of your preparation as an attorney clients are having the same thing I mean they might not be cross-examining in their head but they're living what this whole thing is gonna look like you got to get them in the room show them where they're gonna be sitting show them where opposing counsel is gonna be sitting show them where the sheriff's deputy or the court reporter everybody so that very least when they're practicing it in their mind they're practicing it right because the slightest thing when the when the nerves are so heavy and the pressure is on and this is the most important thing that's ever happened in their life when all that occurs you got to get just a little bit of comfortability there because that's what they're going to be reliving over and over and over again and if there's one tiny difference to it it could completely throw them off


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mock trials not always feasible but extremely helpful if you can get a half-day to actually sit in have another attorney sort of practice with you and your client it doesn't necessarily have to be every witness that you would otherwise have but it helps to have other witnesses there especially if they're family members you know they're there people who would otherwise probably bend over backwards for your client have them all into the courtroom have them all into into a mock courtroom you know local law schools pretty much all have mock courtrooms and again in the grand scheme of the costs of trial doesn't cost all that much to go in and be able to grill your client your clients getting grilled regardless once again it they're not your friend you can't treat them like your friend you can't coddle them they will find out what it's like to be in a trial eventually at very least you're in control of it when you practice ask them the hard questions act like you think opposing counsels going to act or even worse if you can


[2496.11]
identify problem clients before it's too late these are the clients who have unrealistic expectations these are the clients who have less than desirable political or social opinions these are clients who are overly emotional or have mental health issues that are not being treated and not being handled appropriately these are not the people that you want just winging it up there you know I had a client who we had to work at getting him up to a 50/50 custody schedule other side had some problems he had some problems work him up to a 50/50 schedule and then we get the phone call from the client his ex-wife just got arrested at the kids t-ball game you think that's that's a fact scenario I can get behind until you go in your first meeting with the judge and he's talking with everybody it's off the record and we go over you know this is pretty serious judge you know history of alcohol thought she was better now it turns out that not only was she arrested at the t-ball game but we got another police report everything's going well for my client it's the judge asked him what are you looking for here what how do we fix this situation and his response is so long as it doesn't impact my free weekends why you gotta know that before you get into court you just want to give the fact scenario to some other clients but for him that was his reality that was his method of thought that I mean it's not it's not mental illness it's not it's not diagnoseable but it doesn't help your case unrealistic expectations this is the client who finds out the other side has a new boyfriend or girlfriend ten years younger grounds for termination of parental rights right at some point in time the judge is going to ask your client what he or she wants and it is going to be an absolute indictment on that person's thoughts credibility or even mental health you have to explain to that person that it's unrealistic regardless of whether they're a favorite client or a total pain in the butt you got to be realistic you got to be tough on your clients you have to find out what their expectations are and not just the expectations that they tell you neither one of those clients told me about the impact on their weekends or the termination of parental rights they just wanted me to fix it home do what you can I just want just want more custody time you know I I just want that person excluded from my kids life not a termination of parental rights they have to know what's reasonable and what's unreasonable before they walk in there because they're emotional they're irrational this is the worst thing that's ever happened to them sometimes you actually have to break it down to like you're talking to a four year here's what's right and here's what's wrong and here's what you do say and here's what you don't say and if they're offended by that they're offended by that but at very least you've prepared them and their going to have a much better outcome in their trial then they otherwise would have they may hate you for it afterward they're not paying you to be their friend they're certainly not paying you to be their counselor train your client on how to get mad in a courtroom appropriately outbursts are no good if you have a sort of fallback response again fits to your theme heck it might be the first line of your opening statement as soon as he gets mad tell him to repeat the first line your opening statement not to repeat what he thinks of opposing counsel


[2806.48]
so what's the golden rule of direct examination come on somebody's got to know this one ah there it is never ask a question of your client you do not already know the answer to and make sure your client knows that answer preparation for direct examination needs to be as thorough a process as any during the trial prep period nothing derails a case more quickly then your client either flat not knowing what you're asking of them or not knowing the answer to the question that you and your mind have designated is the entire theme of your case you know the entire backbone of your case you want to get derailed as an attorney have a client that doesn't answer that question appropriately you can script your questions I personally don't script my questions I said I send a script of questions a script of issues to my client I have just never been an attorney who has this list of questions and reads them one by one I personally find that it's a lot easier to get knocked off your game a lot easier to get derailed if I have a clear-cut script of questions but the clients gonna have to know what those questions look like if you're not doing it in person you're sending a list of proposed questions to your client and you're sending notes of what you intend to elicit from those questions you can't have there's no time in the middle of a trial for your client to say why are you asking me that the client has to know has to be prepared for what it is that you're asking of them and why it's important to all of that stuff you've educated them with before you got in there


[2947.759]
beware of summary testimony situations where the judge just wants to hear from the attorney on it you know it might be a secondary issue it might be you know a smaller evidentiary hearing where the judge says okay well you've gone over with your client just have your client sitting next to you and you'll you'll summarize their testimony and then we'll open them up to cross nothing worse than your client on cross admitting something that you just attached your credibility to is false that everything they say always sometimes you have to be tough on them sometimes you have to be in opposing counsels shoes and say you know what I believe you I believe what you're telling me but I got to see something else give me give me a phone record give me a text message give me a Facebook post give me anything that says that when you say it happened and they say it didn't that you're at least 51% more credible that everything talked to everybody get lists of every possible witness that you may ever call in your trial you may not end up calling half of them but at very least you have that reference and you might be able to make a phone call to somebody to say okay well you know this this is Johnny's version of things what's yours especially when it comes to summary testimony because you're whether you like it or not you're attaching your credibility to it and they're gonna be on cross and someone's gonna ask them a question and for the most part they're not going to be able to rehabilitate themselves from something that you just said on the record then they said I absolutely agree your honor that that is 100% truthful and correct to the best of my knowledge and understanding except when the other side asks you a question about it


[3080.72]
and move on to to cross-examination this is gonna start with that sort of know your enemy segment we did earlier you don't have the script you don't know exactly what they're gonna ask but you know what they're gonna ask about if you make a good honest assessment of what the other side's case is you could probably build 75 80 percent of their questions on Direct for them it's gonna be all the stuff that they're they're trying to prove there'll be very little you know in in in a civil case with discovery and and mandatory disclosures and all the preparation and lead work that goes into it very few of those law-and-order aha you know if the glove doesn't fit you must equipped type of moments you know what's coming in for the most part build their case for them and model your cross-examination after that again you don't need to script it but you need to have an idea they're gonna testify about this but here's the evidence I have on it what questions can I get to turn them around don't come into it guns a-blazing don't jump the gun on cross-examination especially when it's the the opposing party the first five to ten questions of your cross-examination of the other side they should think you are their best friend you ask them the nice questions Oh where'd you say you lived again you know who's your cell phone provider foundation background questions let them answer the foundation questions as if you're the nicest person in the world to them because then come to leading questions then come to flip them around questions and if you just go guns a-blazing into your cross-examination what's the first thing they're gonna do they're gonna get defensive they're gonna hate you they're not answering anything until their attorney tells them to well if they've already answered who their cellphone provider is what their phone number is it's gonna be a lot more difficult later on when you produce the cell phone records for them to come back in and say oh that's not my number you just testified to it or I wasn't there at that time well then why did you just testify that you had a great time at your kids recital it was a wonderful event now you're there you're forever there get the foundation don't don't let your adrenaline get to you on cross-examination because cross-examination is fun I mean it's it's your chance to argue with the other side it's it's the closest thing you're getting to that law-and-order moment but it's not gonna be much fun if you get them on the defensive right away you have to know what the foundation of all of your issues are and that's where at least my preference is don't script the leading questions script the issues that you're going on the leading questions script the foundation questions make sure you know exactly the questions that you need to ask and exactly the answers that you're looking for on those questions because you can be nice and calm and friendly you can be the other side's absolute best friend for about 15 minutes then they will hunt you down in the hallway when it's done that's the only way you're gonna turn them around that's the only way that you're gonna get your clients case on the other side of that 50/50 when it turns on credibility don't depend on cross-examination to prove your case your case is not built on cross-examination if you go into court and it's entirely your case is entirely predicated your victory is entirely predicated on the idea that you're going to turn the other side around and just myth that they're wrong you are way behind the 8-ball you have to establish your case cross-examination is your opportunity to discredit their case you're not trying to make your case 51% you're trying to make their case 49% on cross it also makes it a little bit more fun because there's not a whole lot to be lost on cross because if you have a competent opposing counsel on the other side they've gotten their version of their case in already before you even ask a question so it's a zero risk game they can go down from there but there's very little that you're gonna do on cross-examination to bolster the other side's case if that's the case it's time for a recess you know if it starts to get to the point where you've asked a couple of questions that the answer was something insanely beneficial that opposing counsel forgot to ask on direct ask for a five-minute recess regroup figure out where everything's going and come back and lay foundation questions put the person in the room put the person in that part of town that day you know find out who that person was with when the big event happened always lead on cross when you're getting to the argumentative portion if you've had evidence that was tossed out you know declared inadmissible at any point in time I can still ask them questions about it yeah maybe that document was hearsay that you know said you were you know or said the other side was at some drug party somewhere it's not gonna stop you from asking them if they were on a dreaded drug party on July 7th sounds awful specific gets the judges here why'd he say July 7th that sounds awfully credible looks I'm reading it from that Facebook post you said I couldn't get in and then you give the opportunity for the other side to lie about it maybe it turns into something maybe it doesn't but at very least you got in front of the judge maybe there's something out there that says they were at a drug party on July 7th maybe not maybe that's all you need to get to what 51% that's all you need


[3504.66]
a very big point almost forgot this so when you feel that moment coming and you've gotten the opposing party all twisted around look at the judge make sure the judge isn't talking to the tip staff make sure the judge isn't checking his email make sure the judge isn't tying his shoe or doing anything else because if you're about to get there and you have the other side on the ropes and the judge isn't paying any attention to it it's for nothing keep the judges ear the entire time if you feel that you're losing the judges attention take a step back find your breaking points where it's a good time to pause review your notes make sure you go over your issues ask the judge some questions you know if it's something as stupid as can I take a bathroom break I mean if you really feel things are gone awry or that the judge is just not paying attention go ask for a bathroom break you didn't have to go to the bathroom then go toward the bathroom but just get a break somehow give the judge a break give the the witness a break let everybody regroup if it's going poorly conversely fight tooth and nail to make sure the other side doesn't now that's that's the rambling client the rambling party on the stand if your clients rambling time for a bathroom break other side's rambling keep moving forward talk about how short on time you are in the trial one single bathroom break could push us over to another day your honor find your breaking points and make sure that you know where you're at in your preparation in your case and your cross-examination to know when those breaking points are coming up when they can be accelerated know when to quit if you've just had that aha moment don't turn around and ask some stupid question that you forgot to ask 20 minutes ago because you were flying through one part when you just got the other to admit to an affair that you had no evidence of it's time to walk away they just admitted to the affair leave the irrelevant stuff off the table you don't have to cover everything on your script it's nice too if it flows right you don't have to find a good stopping point know when to quit and that's what's gonna stick in the judges mind more often than not you're not just gonna get a judge up there that says okay five days of trial is over you win they're gonna think about it and the things are gonna remember are those big moments where you knew when to stop or you got the right response out


[3693.999]
just a little bit of stuff one on case presentation very simple principles like I said I practice in 19 different counties for the most part the general process is the same the specific process could not be more different from County to County the judges wishes the judges thoughts the judges general places in life are all going to be different everywhere that you go but if you fall back to some simple principles of humanity in your case presentation if you're just nice and respectful I mean you you kind of get the judges here regardless of of whether you're just some city slicker attorney in in three-judge County be respectful hi Your Honor may it please the court your honor does anybody actually say may it please the court anymore you know that's it's totally gone by the wayside in Pennsylvania and every time I'm in front of a new judge it's the start of the case may it please the court your honor I'm Rick Julius here's what I'm here for just general respectfulness is gonna get you so much farther ahead especially with a judge you don't know then going in with a chip on your shoulder like you're gonna come and you're gonna prove to them that the way your home county does it is right and the way they do it is wrong don't model your case the same way for every judge in every county in every state you practice in but fall back to the idea of kindness and respectfulness and you're at least gonna get off on the right foot and if you're not in there trying to you know condescend the areas of their process that you don't agree with then you're gonna undo that presumption that you tend to get in those counties that love their local attorneys a judge once told me and it wasn't directed toward me and I quote the court is not stupid it is not going to confuse your passion with intellect think about that for a second you don't have to be the one screaming louder than the other side be intelligent in your arguments be rational be reasonable if for whatever reason you find yourself in a situation where maybe you didn't catch that case that they're talking about in your research or maybe you didn't read that statute you thought this statute covered it fall back to reasonability don't fall back to kicking and screaming they're not going to confuse your passion with intellect you know one of my law school professors told me if you don't know the answer use the smell test believe it or not after a couple hundred years of moving laws forward there's a rationale there's a reason for everything you can get to the conclusion on what you're arguing about you can convince a judge of something reasonable without having a pile of law books in front of you or having your west law access on your phone and desperately trying to do a search in a County in the middle of the woods where they haven't even invented the internet yet fall back to what is reasonable the law is designed to be reasonable and the less you ask for the absurd and the more you further the reasonableness throughout your case it's gonna get a lot easier for the judge to get on board you know I was just in a hearing a couple days ago where there was a temporary protective order in place we needed time to get our case together so we were asking 30-day continuance do some discovery that sort of thing opposing counsels response as well as long as the temporary order stays in effect we need at least a six-month continuance your honor the facts of the case didn't even warrant a six-month final order let alone a temporary order her rationale was well we just need to focus on some other things forget the fact that my clients got a protective order against him we just need to focus on other things I've never seen such a snarly look from a judge on something so stupid that why would you ask for six months to prepare for something that five minutes prior she said she was ready to go to to trial today when she was opposing my continuance it was we're ready to go today now it's we need six months you have to assess what you're asking for before you ask for it your client has to be prepared for everything that you're asking for even the contingency stuff they have to know when we're going through the process of the presentation that there's going to be times that you need to make a judgment call that you can't necessarily walk out in the hallway and confer with your client over what do you need a 20 day continuance or a 30 day continuance the more the client knows about how you're presenting your case and what you're doing to present the case the better off you're gonna be in a sidebar in an argument in a you know dealing with an objection dealing with some secondary issue if you already know what your client wants what are your clients goals what is the strategy you're going to implement to get those goals you already have their authority to come up with an agreement in a sidebar / ancillary issues in terms of closing statements the entire time that you're going through the trial you should have a separate notebook a separate sheet of paper where you're able to write down the highlights the the verbatim testimony is is key especially that stuff where you are able to turn the other side around just scribble it down you can you can rewrite it in in what appears to be English later but if you can get three or four highlights you know what mom testified to this or it was it was uncontroverted that dad testified to that those are what you want to highlight in your closing you want to give the judge something to go out on because you're not getting that ruling today you're getting that ruling when the judge is had time to digest the whole thing give him or her the memorable moments that benefits your case and if you have verbatim testimony that you're able to cite in a closing statement or in a closing argument that's what's gonna stick because they've already heard it once before they knew sort of what was said but now they remember exactly what was said they're not necessarily gonna go back and get the record they might get portions of the record but that takes a long time you you got done with a five or six day trial they're probably not reviewing the entire record before you get your order they reviewing their notes on it and if they missed it in their notes you catch it in your closing argument we present the good exhibits you know if you had those those four or five exhibits you kept as your backup with the with the big blown-up pictures and and the the easel just in case you get a VCR in the room represent them show them to the judge hey remember this we testified to this we admitted this exhibit they didn't do anything about it it's in it's done it's there think about it be concise don't ramble on be consistent to what the case was that you put forward but don't lose the judges attention I mean these these closing arguments really shouldn't be more than five ten minutes tops because after that the judge is glossing over the judge is reading his or her own notes that sort of thing hit the good stuff get out absolutely 100% of the time do not say anything that contradicts the admitted evidence even if it was something you tried to get admitted was objected to and tossed by the judge the last thing you want to do is end your case the last words that you said to the judge are that he or she screwed up and not admitting your evidence and you're gonna tell them about it anyway not a good way to get above the 50% make sure it matches the admitted evidence focus on the good stuff deflect attention away



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