• July 29, 2019

We had the good fortune and misfortune of going to trial last week in a two-day jury trial.

We won.

The “good fortune” is purely selfish. As many U.S. civil litigators know, it is difficult to get trial experience since 95-99% of civil lawsuits settle or are resolved before trial.

True, trial is stressful and exhausting for everyone involved but, for trial lawyers, it is often fun (if they have chosen their profession successfully, at least (and if they feel confident in their clients’ case)). It is the culmination, one might say, of one’s training.

The misfortune of our trials are mainly borne by our clients. In last week’s trial, though victorious, the company client had to spend about two years (and two stressful days of trial) defending a case that had no merit. Our client won but paid dearly to defeat what, in our view, was a ridiculous case from the get-go.

Our Practice Pointers From Trial

POINTER NO. 1: HAVE A TRIAL NOTES NOTEBOOK. Keep a trial notebook throughout your practice as a litigator, from your first trial to your last. After every trial, quickly jot down “post-trial notes” to capture what you learned for your future trials (which might be several years later).

In every trial, there will be slips, lapses, oversights, complications, and unforeseen twists. There will be lessons learned.

POINTER NO. 2: USE MANILA FOLDER FOR VOIR-DIRE. The voir-dire process (in Minnesota, at least, in our experience) moves very fast. It is a fire-hose of information. It is at the start of trial when nerves most interfere with cognition. It comes before one has found one’s rhythm. One trick that we learned in an earlier trial (from an adversary lawyer with loads of trial experience) was the use of a manila folder to diagram the jury venire in voir-dire. This is extremely useful in keeping track of the information that one learns about each juror.

The unfolded manila folder is larger than a standard pad of paper. You will need the extra space. In Minnesota civil trials, there are often 11-12 jurors, seated in two rows of six (or a row of six and five or whatever, depending on available seating etc.), of whom 7 will be empaneled for trial. Draw boxes on the manila folder corresponding to the seating configuration of the venire (e.g., two rows of six boxes each). This will help you capture information about each juror quicker and more efficiently and help in your decision-making about the exercise of peremptory challenges.

POINTER NO. 3: JURORS MUST SEE EXHIBITS IN REAL TIME DURING TRIAL. Figure out a way to have the jury see documents that are exhibits in the case and about which witnesses testify.

To many, POINTER NO. 3 will seem like a “no-brainer” and it is, in fact, a no-brainer that you want the jury to see “Exhibit ###” while you question a witness about it. In our view (some disagree), it might be hard to imagine a more boring and useless experience than jurors sitting and watching a witness talk through a document that the jurors cannot see, particularly, of course, a document that is central to the case or that contains a lot of important information for the case.

What is NOT a “no-brainer,” however, is that different courthouses have different technology available. Different courtrooms have different physical configurations.

In federal courts, in our experience (that is, in U.S. district court (D. Minn.)), civil litigators are “good to go” with courtroom presentation technology. The same is not true in state court.

POINTER NO. 4: DO NOT ANTAGONIZE YOUR ADVERSARY; YOU SHOULD COLLABORATE WITH OPPOSING COUNSEL IF AT ALL POSSIBLE. In last week’s trial, we had the good fortune of extremely respectful, civil, and collaborative relations with opposing counsel. This was particularly important for “Pointer No. 3,” above, as we shared document display technology without any game-playing, without sharp elbows.

These pointers may be well-known and obvious to all experienced civil trial lawyers (maybe criminal trial lawyers, as well; we’re unqualified to say). To those still learning, however, we hope the pointers will be useful. But, keep in mind that, in our legal system, trial generally represents a failure, a sub-optimal resolution. For the sake of your clients, may you be disappointed and deprived of trial experience and, instead, prevail on your adversary to be reasonable and amenable to a less expensive, less error-prone, and uncertain resolution.

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