Category Archives: mock trial
There is no tactic which will better serve you and your client in establishing credibility with the jury then to bring out negative points during direct examination and confronting them head on with believable explanations. If you wait until redirect, then it may be too late to salvage your witness. I always make a list of problems as the case progresses from investigation through discovery and on the trial. Come up with a strategy of either excluding the evidence or find a way to deal with it honestly and persuasively before the jury.
During direct examination, you can ask questions of your client or witness the jury is likely thinking. The witness is then provided an opportunity to take some of the sting out of the evidence by having a friendly questioner take them through the problem. The opposing attorney on cross-examination will be much more reluctant to extensively cover that area and come across as overbearing, looking as if he is desperate as he has nothing else to ask or add to outside of your examination.
The client or witness should be cautioned to stay calm throughout their cross-examination on any such topics. Once the matter has already been brought out to in direct examination, the jury will be looking much more at the witness’s reaction on cross. If they do not react and you do not react, the jury will likely conclude that the matter is not critical to their decision. Most jurors have never been in a courtroom before and will not consider the points important unless you act like they are.
There is no set rule. I would recommend that you play it by ear. If you have a case that is clearly worth a good deal of money, give the jury guidance as to how you calculated damages by breaking down each separate category covered in the jury instruction on damages and assigning a number to it. When doing so, you may want to suggest ranges and provide the jury with a summary chart breaking down the value of each element of damages. I know of one occasion in a case against a national department store where an attorney drew a blank line followed by six zeros ($___,000,000) on the chalk board and pointed to the blank line told the jury this is the only number you need to worry about. His client received a million dollar verdict for a false arrest. Buddy Yosha is slightly less direct and will say in a matter-of-fact tone this is a seven figure case. All of these methods have been known to work.
What ever number or argument you present, you need to do so honestly and sincerely. Also, keep in mind your audience that makes up the jury. Watch them as you argue and you should know what you are comfortable arguing.
What are some common “Dos” and “Don’ts” when it comes to closing argument? Here is a list I put together:
- Speak loud and clearly.
- Be confident.
- Vary your tone and location as you move from point to point.
- Be organized.
- Begin and end on a high note so your points will be remembered.
- Help the Jury with the instructions and form of verdicts.
- Keep track of your time.
- Try out your arguments on non-lawyers to insure your arguments are persuasive and understandable.
- Begin working on your closing argument on day one. It will inform your discovery, preparation and instructions allowing you to develop a cohesive theme from day one.
- Be yourself.
- Be sincere and honest and the jury will trust you as a guide.
- Deal with your problems head-on before your opponent has a chance to address them.
- Use your exhibits and excerpts of key testimony from the witnesses.
- Use PowerPoint, blowups of testimony, or charts to assist the jury.
- Use analogies, quotes and vivid descriptions to keep them interested.
- Save your best “zingers” and analogies for rebuttal if you know the defense will have to address the matter in their argument.
- Judiciously use repetition as tool for emphasizing significant points.
- Have a clear call to action at the very end of your closing.
- Don’t state your own personal opinion about the justness of your cause.
- Don’t misstate the evidence or law.
- Don’t mention evidence outside of the record.
- Don’t berate or personally attack the other lawyer to the Court.
- Don’t tell the jury to ignore the law.
- Don’t make a “Golden Rule” appeal to the jury and ask them to decide the case like they would want to be treated if they were in your client’s position.
- Don’t exceed the time allotted by the Court.
- Don’t personally vouch for a witness or your client.
- Don’t appeal to bias or prejudice.
- Don’t complain about the Court’s rulings or its treatment of you and your client.
- Don’t attempt to shift the burden of proof to the other side when you have the burden of persuasion on a legal claim or defense.
- Don’t implicate a defendant’s right to remain silent in a criminal case.
- Don’t insinuate that it is a lawyer made case without first obtaining approval of the Court.
- Don’t violate any orders granting motions in limine. (Can you say mistrial?)
- Don’t bore the jury or beat a dead horse.
- Don’t ask the jury to send a message with their verdict unless you have a punitive damage claim. The purpose of the verdict in the typical tort case is to fairly compensate, not send a message.
- Don’t wear any distracting clothing or jewelry.