I was in trial recently and it’s always helpful for me to write down a few thoughts for future reference. Below are some random musings on how to win or lose a trial.
- There is a wart or booger in every case – the bad fact or law that is driving the case to trial. Instead of running away from weaknesses in a dispute, a good trial attorney will directly confront the wart/booger and strategically figure out a way to mitigate its impact. This requires a solid relationship between an attorney and his client. If the client doesn’t trust her attorney, they will revert to their natural inclination to avoid or deny weaknesses in their case. A witness that admits they were wrong in one instance, gains credibility for when they say the booger in their case doesn’t really matter. In contrast, a party that simply ignores or denies the other sides argument will come across as unbelievable, ignorant and selfish.
- Controlling the narrative of the case is critical. If a case goes to trial it’s because two or more sides disagree about the key facts and law involved. Each side has a story to tell. Whatever party controls the narrative is more likely to win. If a trial lawyer is able to dictate the issues discussed during trial, it steers the focus away from the wart or booger referenced above. Thinking deeply about the a compelling theme and clearly articulating a party’s story is fundamental in controlling the narrative.
- Technology matters. I now use an iPad in every trial or hearing. The TrialPad app has revolutionized how evidence is presented. Using an Apple TV, I wirelessly linked into the court’s audio/video system. It’s a slick setup. With TrialPad, I’m able to blow up documents, highlight key sections, and compare documents side by side. It is engaging, quick and easy. During this most recent trial, the opposing attorney dropped his exhibit notebook twice. Papers went flying everywhere, he exclaimed, “Shit!” which likely made it onto the record, and it was cumbersome for everyone to switch back and forth between paper exhibits. People today expect videos, charts and professional presentations.
- Organizing the closing argument first drives everything else. As a DA, I learned the importance of thinking about what I wanted to say in my closing argument and then working backwards. I typically create a basic slideshow (PowerPoint or Keynote) with the applicable law and key evidentiary points. This process is intertwined with developing a theme and narrative for the case. The evidence I want to bring in – whether it be on direct or cross examination – is driven by my closing argument. My opening statement and theme are driven by my closing argument. Everything is driven by the closing argument. There’s no point in asking a question or introducing a document if it doesn’t support a point made in closing.
- Researching legal issues in advance is necessary. The best evidence in a case is usually derived from the other side. Especially for trials to a judge, knowing the applicable law cold is essential. In my recent trial it was evident that the opposing attorney hadn’t done his homework. His client admitted to a number of key things on cross-examination without understanding the implications. Only after my closing argument did opposing counsel and his client appreciate the significance of a seemingly innocuous admission on cross.
- Checklists are helpful. An issue in this trial was attorneys fees. In a divorce, a party may be awarded all or part of their attorneys fees from the other party under C.R.S. 14-10-119. There are necessary elements that must be proved to obtain an award of fees. We were at the end of the trial, everyone was tired, and the opposing Aspen lawyer made a critical mistake – he forgot to ask his client how much fees were owed. Realizing his mistake after he rested his case, the lawyer pleaded for the court to allow him to ask a few more questions. The court allowed him to do so, but stated he was only considering it for a limited purpose. It remains to be seen whether the Aspen attorney made a $50,000+ mistake, but a checklist for what evidence was needed would have likely prevented such a gross oversight.
The above is obviously not an exhaustive list of what it takes to win or lose a trial; each case warrants special consideration. The bottom-line is that trials require a lot of thought and preparation. If a lawyer or party thinks they can “wing it,” they’ll likely be in store for an unpleasant surprise.