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Top Ten First Trial Mistakes

By Kelley Barnett


For litigators, your first trial—like many of life’s other firsts—is both exciting and frightening. But despite the countless hours of preparation, many litigators make some common mistakes in this very important “first.” Here are some traps for novice litigators hoping to ace their first trial.

Don’t Forget to “Know Thy Judge”
If you don’t want to end up in the judicial crosshairs, learn the judge’s rules. Are attorneys permitted to ask questions during voir dire? Are any subjects off limits during voir dire? How does the judge handle peremptory and cause challenges? Does the judge impose time limits on voir dire, opening statement, or closing argument? Are you permitted to state the bases for evidentiary objections? Read your judge’s standing orders. Check the local rules. Ask other lawyers. Watch your judge in another trial. Ask questions at a pretrial, or simply call chambers and ask. Most judges will appreciate your interest in learning their practices.

Bring Your Trial Theme
Trying a case without a theme is like telling a story with no plot. A theme is a word or short statement about your case. It’s the lens through which the jury will view your evidence. It frames the issues and essence of your case. Themes can be everyday words, common sayings, or even quotes from well-known movies or books. If you’re defending the termination of an accident-prone employee, perhaps your theme is “safety first.” In a breach of contract case, maybe your theme is “honoring your word” or “promises.” Whatever your theme, make sure it’s simple and memorable.

Listen, Don’t Just Read
Preparing an outline of questions to ask the witness is important. But don’t read the next question on your outline instead of listening to the witness’s answer. Even on direct, the fact that you’ve prepared the witnesses and you think you know what they’ll say doesn’t mean they will follow the prep. Even the most carefully coached witness may say something unexpected that requires follow-up or rehabilitation. Instead of relying heavily on your outline, listen so you don’t miss testimony that could hurt your case.

Avoid Excessive Cross-Examining
It’s tempting to keep hammering away when cross-examination is going well. Don’t. Quit while you are ahead. Make your important points and sit down. Asking one question too many risks eliciting damaging testimony and weakening the major points you have made.

Object Only When Necessary
Knowing the Rules of Evidence is important but knowing when to use them—and when not to use them—is essential. Just because you can object doesn’t mean you should. Yes, it’s hearsay. But before you stand up and proudly declare “Objection!” ask yourself if you really need to. If you constantly object, the jury may think you’re hiding something. A good rule of thumb: Don’t object unless the evidence hurts your case.

Remember to Keep Track of Exhibits
Devise a method to keep track of plaintiff and defense exhibits used during trial. It can be as simple as using a notepad with columns for each party and rows for exhibit numbers. When it’s time to move for or oppose the admission of exhibits into evidence, you’ll be glad you did.

Prepare Ahead of Time for Mid-Trial Dispositive Motions
You’ve just knocked your case out of the park or torn your opponent’s case to shreds. Nice job. But that doesn’t matter if you’re not prepared to move for a directed verdict or respond to such a motion by your opponent. No matter how hard you’ve worked, you can win or lose your case in this moment. Even if you don’t expect to win the motion, you still need to make a record for appeal.

Always Preserve the Record
Sometimes juries don’t go our way. You know what’s worse? Blowing your client’s appeal because you didn’t preserve the record. To avoid this, make timely objections and make sure the judge rules on them. Make a proffer on the record outside the jury’s presence when the judge excludes one of your witnesses or exhibits. Scrutinize jury instructions and verdict forms, and object if appropriate before the jury is charged. And prepare for an unfavorable verdict by checking the rules for preserving an argument that the evidence is insufficient to support the verdict.

Keep It Plain, Simple, and Polite
Avoid using confusing legalese and technical terms in front of the jury. And even when facing antagonistic witnesses or opposing counsel, remain respectful. Jurors watch and listen to everything you do. Treat the last impression you make as carefully as you treat your first.

Keywords: advice, tips, young lawyer, trial mistakes, first trial

Kelley Barnett is a partner at Frantz Ward, LLP, in Cleveland, Ohio.

This article was adapted from the original version, which was published in the Fall 2014 issue of LITIGATION.

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