Some years ago, I blogged about “Effective Cross-Examination at Trial.”  I stand by those comments, but my technique has evolved. 

Some of my colleagues cross from a word-for-word script, including full printouts of the impeaching testimony or exhibit, but I prefer a simple outline, to make the cross more organic.  I have a summary of the point I want to establish in the left column and citation to the impeaching deposition testimony or trial exhibit in the right.  Absent a budget concern I always take videotaped deposition, which should result in an impeaching video clip ready in the trial display system as needed. read more

Your client’s case is presented primarily through “direct” examinations, those where your witnesses tell your side of the story in their words. 

Advance Planning

Before meeting with your witnesses to prepare, you should have developed your case “theme,” possibly through a mock jury.  This is a plainspoken statement of why your client’s position is just, made in terms the Starbuck barista can understand.

I pull together the most important exhibits, assemble them in chronological order and invite all my witnesses to assemble for a “walk-through talk-through.”  The witnesses may have touched upon different aspects of the dispute, but likely never met together to obtain a global picture.  read more

The trial phase that takes place before opening statements and presentation of evidence is popularly referred to as jury “selection.”  This is a misnomer.  The parties do not “select” jurors who will hear their case.  Rather, after several rounds of vetting by courthouse staff and the judge, potential jurors are seated in the jury box and become jurors by default—except to the extent they are “excused,” or “de-selected,” before trial begins.  Jury “selection” is therefore about removing bad jurors, not selecting good ones.

Potential jurors are first contacted by courthouse jury commissioners through mail solicitations based upon a “master list.”  read more

A trial is conducted in a box. 

Literally and figuratively. 

The literal box is the windowless room in a government building in which the trial is conducted. 

The figurative box is drawn by the judge, who admonishes jurors that they are only to consider the evidence admitted inside the courtroom and shall not conduct research or consider information beyond the evidence admitted in the trial.

Yeah, right.

Okay, when these rules were framed, to research a party in the case, a juror would need to travel to a good library, search through index cards, talk to a research librarian and wander the shelves to pull information not received in the trial.  read more