TRIAL SKILLS LIVE

Part 1 – Party to the Case – Plaintiff/Defendant

If you have the misfortune to be either a Plaintiff or Defendant in a civil or criminal trial, it is important to spend a few minutes planning your attire. You are already investing a good deal of time and money into these proceedings and now is not the time to disregard such a simple yet important part of your presentation. How the judge or jury perceives you is one of the many factors that will influence a final decision. We can argue all day about whether as a society we should form opinions about people based upon appearance, but that’s not going to change the fact that we do.

Chris Brown facing charges of felony assault in 2009. Chris dressed and acted conservatively in court. 

With that in mind, lets talk about what you should wear to court.

1. Whether you find yourself in Miami, Florida or Portland, Maine, the courtroom is a formal setting with conservative standards. You will need to dress yourself accordingly.

2. For men, a dark suit, white shirt and tie is best. If you don’t own a suit, slacks, a white shirt and a tie will do just fine. But remember the key word here is conservative. I was recently involved in a criminal trial where the defendant was wearing a very expensive grey suit with a loud orange tie. He pretty much looked like an organized crime boss from South Beach and I can guarantee that the judge and jury took notice of it. 

3. For women, wear a dark suit, dress or blouse. Avoid spike heels or open toed shoes. If you are wearing a dress, pantyhose are strongly recommended. Wearing a bra is strongly advised, as well.

4. Comfort is important here, too. I know that many of us don’t wear suits everyday and it can be a little awkward putting one on. It’s important that you look comfortable and at ease while in court. I would suggest wearing it around for a couple of hours prior to trial to make sure you’re comfortable wearing it around.

5. To reiterate the importance of dressing conservatively, lets talk about a few things NOT to wear: (a) lots of jewelry, (b) strong perfume or cologne, (c) revealing clothing, (d) loud colors, and (e) conspicuous hairstyles. These may some obvious to some and less obvious to others, but these are all things that you should not wear in court. They are distracting and will give the impression that you don’t respect the proceedings.

In a nut shell, you don’t want to call any extra attention to your outfit either because of how nice/expensive it looks or because of how informal it looks. You are in court to make a good impression and while a couple of the jurors might appreciate your taste in diamond-studded Louis Vuitton handbags, it probably won’t help persuade the judge and jury to find in your favor. In fact, if you are a victim seeking money damages, showing off your wealth is not going to help your cause. Likewise, if you are being charged with a  crime, dressing informally or in a trendy fashion, will give the impression that you’re not taking the proceedings seriously.

Coming up next... How to Dress for Court: The Jury 

The testimony of an expert witness can make a serious impression on the jury. The wise doctor with the wire rim glasses and the stoic engineer with the Harvard degree can bring a certain sense of credibility to an otherwise he-said-she-said legal debate. So then, it becomes your job on cross examination to do everything in your power to undermine the expert's credibility and testimony. Indeed, easier said than done!

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First, what does it mean to impeach a witness? Generally, to impeach a witness is to undermine the source of information as opposed to undermining the content of the testimony. The concept is pretty simple really. The cool thing about impeaching a witness is that it’s a tactic that we’ve been using since we were little kids to win arguments. When someone accused you of doing something on the playground, you probably figured out the fastest way to defend your innocence was to attack the source of the accusation.

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Witness testimony can only take your case so far. An experienced attorney directing an examination with a credible witness is effective to help articulate your case, but at the end of the day, it is still just a second hand account of the witness' recollection of the events.

Jurors often yearn for something concrete: a picture, a shoe-print or even a bloody glove, to link up with the witness' account and the lawyer's arguments.

 

My last trial featured many high priced real estate experts pontificating on the value of ground floor commercial retail space in a condominium high rise building (exciting, I know!). The experts' valuations, data, and opinions were completely overshadowed by a simple blown up photograph displaying the location of the building in question. All the jury needed was a simple and clear message. Our photograph demonstrated that the building was in a prime location in town and thus commanded a high per square foot price.

Our photograph exhibit was a great success, but our trial team never could have utilized it unless it was properly introduced into evidence at trial.

The introduction of exhibits can be tricky for beginners. Master the language and techniques described below and you will soon be on your way to more effective advocacy.

Introduction of Real Evidence:

Real objects, such as a knife used in a murder or drugs seized by the police, can be introduced into evidence only if certain legal steps are followed.

1) Identification of the Exhibit:  The authenticity of real evidence can be established through the testimony of a witness who is able to identify the object in question.  Your witness must testify that he/she is familiar with the object from a previous encounter, and also that he/she is able to identify the object in court as that same object from the past.

Example:

Attorney: Do you recognize Plaintiff’s Exhibit 10?

Witness: Yes, it is my brother’s hunting knife.

Attorney: How do you know it’s your brother’s hunting knife?

Witness: Because he engraved his initials on the bottom of the handle.

Attorney: Is Plaintiff’s Exhibit 10 in the same condition or substantially similar condition as the last time you viewed it?

Witness: Yes it is, except for the small blood spots on the blade.

2) Chain of Custody:  When the possibility of evidence tampering is at issue, the attorney must establish a proper chain of custody through one or more witnesses. The attorney must establish, via specific testimony, that the exhibit from the incident is the same unaltered exhibit being offered as evidence. Establishing a chain of custody of real objects from a criminal case often involves testimony from police officers and/or crime scene technicians.

Example:

Attorney: Is this knife, Plaintiff’s Exhibit 10, the same knife you found at the crime scene on Oak Street on June 22, 2009?

Witness: Yes it is.

Attorney: What did you do with the knife after you found it at the crime scene?

Witness: I sealed it in the official evidence bag and added my police label with my initials and the date.

Attorney: What did you do with the knife after that?

Witness: I brought it to the crime lab and locked it in the evidence deposit box.

Attorney: Were there any other knives in the evidence deposit box?

Witness: No.

Attorney: Did the knife, Plaintiff’s exhibit 10, ever leave your evidence deposit box after your place it there?

Witness: Yes, only today when I brought it with me to court.

These questions from the attorney are an example of how to establish the chain of custody of an exhibit for evidence. The witness is able to establish, via direct testimony, the whereabouts of the knife from the crime scene until the knife appears in the courtroom. This ensures the knife introduced into evidence is the same knife from the crime scene and that it has not been altered. 

If the knife had been given to a scientist at a laboratory for testing, then a more complicated chain of custody would be required. The attorney would have to direct each witness to testify regarding their possession of the object and track the history of its movements to account for the complete chain of custody.

Remember, establishing recognition and chain of custody are not a guarantee the judge in your case will allow you to introduce it into evidence. Federal Rules of Evidence (or state rules depending on your jurisdiction and/or applicable mock trial rules) pertaining to relevancy and prejudicial nature of the object may prevent the judge from allowing the object into evidence, but that’s another blog entry for later! But these techniques are a necessary component in your advocacy education. 

 

Your Opening Statement is important for many reasons, not the least of which is the fact that this is your first impression with the jury. How you present yourself and your trial theory can have a tremendous impact on the outcome of the trial. Although we would like to believe otherwise, the jury will begin making private determinations of innocence or guilt from the very first moment the accused walks into the courtroom. Your ability to set the stage with your Opening Statement is therefore a very critical component in the trial.

 

1. Master Your Opening:

You have to know your opening statement cold. Reading from a script, perched behind the podium isn’t going to do it. This is your first impression and your first chance to connect with the jury. Let them know you're in control of the case. Keep a sheet with bullet points of your statement at the podium and refer to them if you need. But whatever you do, don't read your opening.

2. Personalize Your Client:

Whether you’re the attorney for the plaintiff or defendant, building your client’s reputation can be paramount. For example, in a criminal trial, it would be important to humanize the alleged criminal and to highlight the positive attributes from his or her personal and professional life. If the jury can connect with your client, they are more likely to sympathize with his or her position.

3. Courtroom Delivery:

Almost as important as what you say, is how you say it. It is important to use body language and voice inflection to emphasize your message. It's good practice to step away from the podium to connect with the jury. During the more critical moments of your Opening Statement, you need to make certain that the jury is fully engaged. Voice inflection and your positioning in the courtroom (e.g. proximity to the jury box) can help ensure they get the message.

4. The Burden of Proof:

Depending on the type of trial, you will be faced with a different burden of proof. Stated simply, the burden of proof is the obligation to shift the assumed conclusion away from an oppositional opinion to one's own position. In most criminal cases, the burden of proof is reasonable doubt. For the jury, this can be a very difficult concept to understand, but its understanding can be critical to your clients success. One effective method is the use of analogy to explain the threshold of reasonable doubt. Click here to watch a good example. 

5. Paint the Picture:

Your opening statement should tell a story. You will need to start with a well-crafted trial theory. Your theory is an account of the facts and controlling law that lead to a favorable outcome.

6. Always request a specific verdict:

Nothing fancy about it, but it's often left out. Don't forget to ask the jury for a verdict.

Example:

At the end of this trial I ask you to submit a verdict of not guilty. Thank you.