Trial Post-Mortem

20130912-145745.jpgIf you try cases long enough, you are going to eventually lose a few.  You need to look at losses as an opportunity to improve.   Quite honestly you should learn more from your loses, than your victories.  If your are allowed, you should speak with the jurors and see what they thought was important. You need to check the case and consider:

1.   Jury Voir Dire:  Was a juror biased against your case? Could you have formulated a better question to uncover this bias and possibly exclude the juror.  Were there a problem with your case you could have raised in voir dire to find out who could not treat the evidence fairly?

2.  Prejudicial Evidence or Arguments:  Did the other side present irrelevant evidence or improper arguments?  Even if your objection is sustained, it is often difficult to “unring” that bell. You may be able to head off such arguments or evidence in the future through an motion in limine excluding such evidence or argument.  It might also uncover problem evidence.

3.  Were There Surprises:  Perhaps the opposing party hit you with evidence you missed.  Next time you may be able to head off such problems by doing what your opponent would likely do in investigating the case.  You may need to comprehensively collect and check medical records more carefully and prepare a medical chronology to refresh your client’s memory before questions are incorrectly answered in interrogatories or depositions.  Or perhaps, there are other lawsuits, claims or even criminal convictions your client failed to tell you about in advance of discovery and their deposition.  You may want to hire a private investigator to do a preliminary background check of your client or just do a Google search of your client’s name to see what you might uncover.  You may want your client to give you access to their social media sites to check for potential problems.  Better yet, you can educate your client early on about the importance of being completely honest with you.  There are few problems that cannot be dealt with if you know about them.  It’s the problems you don’t know about that can kill you.  I always tell a client that:  “You don’t want to take a good case, try to make it a great case (through exaggeration or lying) and turn it into a bad case.”

4.  Witness Preparation:  Did you adequately prepare your witnesses or client to testify.   Good testimony requires that you and your client be on the same page.  You need to adequately prepare your client or witness for any landmines that exist and perhaps bring up the problems yourself in voir dire, opening and/or on direct examination to blunt the damaging evidence’s impact.  Video-taping a mock testimony session and allowing your client or witness to critique their own performance can work wonders as well.

5.  Additional Evidence:     Was there a witness you needed to call?  Lay-medical witnesses to paint a before and after picture can go a long way in corroborating your client’s testimony that they were injured in this incident and not from some other event or condition.  Was there an expert whose testimony might have covered a gap or question in your case?  Could a photograph, diagram or model have made your presentation clearer or answered a juror’s doubt?

6.  Jury Instructions:  Were there jury instructions needed to address points of law pivotal to your case and the jury’s understanding of those issues?  Don’t take the easy way out and rely simply on pattern jury instructions.   Review the case-law and formulate your on instructions on nuanced points of law that are difficult for the jury to understand and apply to your case.

7.  Strategy:   Was there something you could have handled better?  Was there a better analogy or argument you could have used to make your point or address your weaknesses?  Was your overall view of the case cohesive and persuasive.  Was your order of witnesses correct?  There are a number of great resources available to you from books about famous trials, closing arguments and trial advocacy.  Don’t reinvent the wheel.  Learn from other’s experience what works and what doesn’t.  Seek out a mentor and pick their brain.  See my earlier post on Fireside Reading for the Trial Attorney.

I hope the thoughts outline above help you in critiquing your “failures” and turning them into an opportunity for improvement and growth as an advocate.

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About Richard A. Cook

Richard Cook graduated from Purdue University in the Economics Honor Program in 1979 and obtained his Juris Doctor degree from Valparaiso University School of Law in 1982. Following law school, Richard served as a federal law clerk in the U.S. District Court for the Northern District of Indiana, Hammond Division. In 1984, Richard began working as Deputy Prosecutor for the Lake County Prosecutor's Office and from there, served as Assistant U. S. Attorney for the Northern District of Indiana, South Bend Division. There he handled a number of complex criminal matters and jury trials. While there, Richard received the Chief Postal Inspector's Special Award and a letter of commendation from the U.S. Attorney General for his work prosecuting a major money order fraud scheme being perpetrated out of the Indiana State Prison system. Since leaving the U.S. Attorney's office in 1989, Richard has focused primarily on civil work and is currently a member of the firm Yosha Cook & Tisch in Indianapolis. Richard is also a member of the ITLA, IBA and the ABA, as well as, a fellow for the American College of Trial Lawyers. He is AV rated by Martindale-Hubbell.

Posted on June 15, 2012, in closing arguments, depositions, Evidence, Jury Selection, Trial Advocacy. Bookmark the permalink. Leave a comment.

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