Trial Practice Tips

They say the jury trial lawyer is a dying breed. I disagree.

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I Don't Believe In Reasonable Doubt

I Don't Believe In Reasonable Doubt, And Neither Should You.

We think he killed that guy and he is super guilty but we agree with his lawyer there is reasonable doubt. I mean, his lawyer never told us the guy didn’t do it either so he probably did it, but he just kept talking about how the State is not able to prove that he did it and that was convincing… So based on that let’s go ahead and let this murderer walk today. All agree?

Said no juror, in any…

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Lawyer Credibility

Everyone talks about witness credibility. We learn about it in school during trial advocacy class. We hear about it during just about every closing argument. We have jury instructions describing how the jury should weigh it.

And while witness credibility is key in trial, there’s something that’s perhaps just as important…

Lawyer Credibility

As lawyers we are extensions of our clients in the eyes…

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How Does Impeachment Play In Your Story?

How Does Impeachment Play In Your Story?

For whatever reason we trial lawyers love impeachment. When the witness says something that is inconsistent with what he or she said in a prior statement we can’t wait to crush him or her in front of the jury. Maybe this is something that is being encouraged in law school. Or maybe this is something that we pick up from watching too many lawyer movies. Whatever the reason is, this behavior can be…

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Jury Selection - Watch Every Juror

Jury Selection – Watch Every Juror

Most courtrooms across the nation are cramped with desks, chairs, and some even have columns cutting right through the well. Because of this we get used to always having one or two jurors during jury selection that we can’t really see from where we are sitting. At first this doesn’t seem like a big deal. So what if I can’t see one or two people, surely I will know what I need to know about them…

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Bring Your Game, Not Your Name

Bring Your Game, Not Your Name

You may be a good trial lawyer. You may even be a great trial lawyer. People may know you. The prosecution may respect you. Insurance companies may be afraid of you. That’s great, but the jury doesn’t care. The jury doesn’t know who you are. The jury doesn’t know what you’ve done. The jury doesn’t care about how good you’ve been in other trials.

The jury only cares about what it can see–how good…

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Getting Rid Of Bad Jurors Through Unconventional Means

Getting Rid Of Bad Jurors Through Unconventional Means

In every jury selection you have bad jurors–jurors you don’t like. Usually you are able to challenge these people for cause with questions that go to the heart of your case. But sometimes you have jurors that you know are going to be terrible for you, yet they give you all the right answers to the questions that go to the heart of your case.

When that happens you have to consider other ways to…

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Always Tell Your Trial Story

Always Tell Your Trial Story

Many times as lawyers in trial we get caught up on what the other side is going to say. We may even worry so much about it that we end up presenting our trial story in a way that responds to what we think the other side will say. This is a mistake.

Your trial story should be your trial story regardless of what the other side intends to say. What the other side actually says at trial should make…

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The Three Basic Criminal Defense Theories

The Three Basic Criminal Defense Theories

While there are unlimited stories to be told in a criminal case, there is only a handful of criminal defense theories.

Some Other Guy/Gal Did It

This criminal defense theory is pretty self-explanatory. What the witnesses are saying is true exceptthey got the wrong guy/gal. They may be lying. They may be confused. But whatever the case may be the wrong man/woman is sitting at the defense table.…

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Jury Selection - Word Choice Matters

Jury Selection – Word Choice Matters

Many times we go into jury selection thinking that it is just a conversation. Because of this we sometimes do not spend enough time thinking about what words we will use. After all, we have been having conversations with each other since we could first speak.

While at a broad level this is true, jury selection is more than just a conversation. It is a conversation with very specific goals under…

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Demeanor, Demeanor, Demeanor

In the real estate world it is all about location, location, location. In the trial world, it is all about demeanor. Demeanor let’s a jury know that you think someone is lying without you having to call the witness a liar. Demeanor let’s the jury know that you are a human being that sympathies with a person who has been injured or is simply genuinely mistaken. Demeanor gets the message across…

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Misidentification Defense - The 100% Method

Misidentification Defense – The 100% Method

In the criminal context misidentification is a phenomenon where victims or witnesses of criminal activity mistakenly identify one person as the perpetrator of the crime. When this happens the people making the identification become convinced that the person they identified is the person who they saw committing the crime.  There are many reasons why this happens and we will not get into them here.…

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Trial by jury. Our most important right.

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Be Your Own Trial Performance Critic

Be Your Own Trial Performance Critic

As a trial lawyer it is hard to get real feedback on your trial performance. This is because people are naturally averse to giving negative feedback even when it is called for. People may feel that if they give you real feedback they will damage a friendship or a business relationship.

While it is nice for our egos to hear how great we performed in our last trial, positive feedback does nothing…

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Controlling The Runaway Witness

Controlling The Runaway Witness

Controlling the runaway witness during cross examination is one of those challenges that we as trial lawyers have to deal with on a daily basis. No matter how tight and pointed the question is, the runaway witness takes it upon himself or herself to lead off in a tangent that seems to go on forever. Regardless of what the witness may want to do, however, we can always keep control of the witness.…

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Curative Instructions And The Scarcity Principle

Curative Instructions And The Scarcity Principle

The scarcity principle is a phenomenon of human psychology. It may even be an evolutionary trait. It states that we give more value to things we consider rare and less value to things we consider plentiful. It is the reason why we all fight for the last water bottle in an emergency situation or why the last cookie in the pack always seems to taste the best. It is the reason why most infomercials…

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Everything That Happens In The Courtroom Is Your Fault

Everything that happens in the courtroom is your fault. Your witness got hit with something you never anticipated? That’s your fault. The other side made a devastating argument that you had no comeback for? That’s your fault. You slipped up on cross examination and opened the door to devastating evidence previously ruled inadmissible? That’s your fault. You failed to preserve an issue for appeal?…

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Top Ten Books For Trial Lawyers

As a trial lawyer most of your training outside of the basics will come from trying cases. But no matter how trial active you are you will not be in trial every day.  In fact, recent trends suggest that you probably will not even be in trial every month. Since you won’t be trying cases every day you should look elsewhere to improve your skills during the downtime from trial.  Books are an…

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