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

Trying cases is a lost art in the business world.  Supposedly 95% of business cases settle prior to trial.  That may be so, because I consider 95% of my business law colleagues to be litigators, not trial lawyers: those who exclusively use pleadings, discovery and motions to posture a case for settlement and who have little to no trial experience. 

If a reasonable settlement can be achieved, I advise my clients to take it.  Trying cases is expensive and uncertain.  But if you’re not eager and able to try the case if necessary, how are you going to get the best settlements?  read more

“Mini-opening statements,” or short opening statements to potential jurors before jury selection (“voir dire”), are a little understood but critical aspect of trial practice.

Parties are often required to submit joint materials before the pretrial conference including a short statement of the case.  See LASC LR 3.25(f)(1).  As a stipulated document, though, it will be sanitized to the point of revealing little about the case other than identification of the parties and claims.  On the day of jury selection, a “panel” or “venire” (“to come,” from the jury summons) of thirty to forty potential jurors will enter the courtroom and sit in the gallery.  read more

Trial attorneys have at most four opportunities to speak to a jury: 1) a brief opening statement prior to jury selection (state only and on request); 2) jury selection, or “voir dire” (“to see one say”); 3) opening statement; and 4) closing argument.  The first two are before the jury is selected, and only in the second, jury selection, is one permitted to ask potential jurors questions and hear their answers.  This golden opportunity should not be squandered through ill preparation.

In federal civil practice the judge retains tight control over voir dire and need not allow attorneys to ask questions.  read more

I have tried numerous business cases with a fine record of success.  Trials are, however, an uncertain process, and if one tries enough cases, the most skilled trial lawyer will eventually lose a jury verdict.

When a trial lawyer hears an adverse verdict in court, should s/he walk away, shoulders slumped, counting for vindication on the power of an appellate brief due many months hence?  No.  A trial lawyer’s efforts to reverse an adverse jury verdict begins while the jury is still standing in the jury box.

The first question one must ask, seconds after hearing an adverse verdict, is whether the verdict is ambiguous or contradictory.  read more

I try business cases for a living.  A trial is, boiled down to its essence, a chance to tell your client’s story, in a relatively short period of time, to a captive audience that for the most part has no legal training.  The story you tell is usually backed up by a limited number of exhibits and graphics that hopefully underscore your theme.  Except if you get a legal professional or two on the jury, the jury’s entire legal training consists of twenty minutes at the end where the judge reads jury instructions in a boring monotone.  I spent three years in law school and almost thirty years in practice figuring out how to apply facts to legal standards.  read more

I belong to a business development network where members can post needs broadcasted on blast emails. A request for a litigation attorney often asks for a lawyer who specializes in the type of case in question – a “defamation lawyer” or a “policy holder litigator.”

At larger firms it is common for lawyers to cultivate specialization, so that the firm as a whole can market depth of knowledge in any given subject. Specialization certainly promotes clear marketing.

I, however, have avoided undue specialization, and have tried to follow in the steps of old school trial lawyers, available to appear in any matter contested in court. read more