Trial Advocacy Rules & Tips for Virginia Lawyers

Trial advocacy is a skill, a skill any lawyer can acquire. No case need be a loser, no matter its law and facts, and no lawyer a failure, no matter the verdict, so long as the trial is handled skillfully. But, like all skills, one cannot perform effectively without practice and a basic understanding of the theory behind the skill. You need to learn to think like a trial lawyer. This article offers rules, practices and tips to sharpen your trial lawyer mindset.

  1. The first rule is understanding what successful trial advocacy means. It means presenting your case in such a way as to maximize the chance for a good result. No baseball player hits a home run every time up or scores on every play. What professionals strive for is a good average result. Nobody wins all of the time. Perfection at trial - as in life - is rare, and not a realistic standard against which to measure your efforts. But, if a trial lawyer knows what he or she is doing, he or she can, on average, have excellent outcomes. You cannot win every case you try. A lawyer who always wins either isn't trying many cases or is trying sure things that should be easy to settle fairly. Even good trial lawyers have failures. All trial lawyers sometimes struggle hard and fail. All trial lawyers make mistakes. Failure is an event, not a person. Trial work is full of hills and valleys. This is because success is hard. A lawyer who cannot bear moments of failure will never taste real success. Fear of failure will paralyze you and prevent action. You don't have to be perfect to get into the Hall of Fame â¿¢you just need to have a good batting average over time. You must learn to live with the inevitable strikeouts and errors if you are going to get the joy that comes from the singles, the doubles, the triples and especially the occasional home run. Half the lawyers lose every day in court. Learn from your losses
  2. The second rule is understanding what winning means. Winning means getting a better result at trial than you could get by settling the case without the expense and risks of a trial. If in a PI or medical malpractice case the insurance company offers $20,000 to settle the case and it costs your client $4,000 in costs to put on the trial, and your time is worthless, you need a collectable verdict in excess of $24,000 for your client to win. For you to win you need an even higher verdict to compensate you for your time. In a criminal case winning means getting a better result than the final plea bargain offer. Winning in a divorce case is more complex and can be the hardest thing to define. If the issues are solely monetary, perhaps you can define winning easily enough and the same can be true on visitation and custody. However, since the parties in a divorce frequently have lifelong relationships, often involving children, winning can be truly illusionary.
  3. The third rule is never forgetting the importance of the judge and/or jury. They are your audience. You always need to think about the impact you and your case are having on them. It doesn't matter how good you think you are or even how good you really are but only what results you can obtain from a judge or a jury. In order to consistently get the best results possible at trial, you must understand how judges and jurors think. You must understand what they want and need to properly decide a case. And, you must give it to them. A judge and jury need or want truth, logic, purpose, and satisfaction. If you or your case donâ¿¢t ring true, run contrary to common sense, lack focus or are without meaning, winning is not an option. Be creative in how you present your evidence. But don't be too creative in either stretching the facts or the law. Remember the law moves incrementally. Most judges like it when you show them someone else thought of your idea first and get nervous if they conclude you have actually come up with an original point. And never forget that the collective mind of the jury sees and hears everything. You are always "on" in a jury trial and need to be constantly aware of the impression you are making on your audience. A bad trial lawyer can, on occasion, fool a judge but even great trial lawyers can't fool a jury so don't even think of trying it.
  4. The fourth rule is there is a price for winning at trial. Winning is never free. The price is preparation. And proper preparation requires will power, effort and thoughtfulness. Any hard-working attorney can win on any given day. Failing to prepare means preparing to fail. Proper trial preparation doesn't require brilliance but it does require hard work. Trials are won or lost in your office and in the library far away from the courtroom. The trial is won through preparation and clear thinking, long before the judge and jury hear the case. Experience and intelligence are not as important as hard work, common sense and honesty. Good facts are also very helpful. You must put in however many hours it takes to prepare your case. And your efforts must reflect the 'Cs' to success. Here they are: Clarity, Competence, Cause and Effect, Courage, Character, Credibility, Communication, Concentration, Consistency and Confidence.

What follows are trial tips that work for me. Some you already know. Some you will reject. And some you may find helpful. You don't need to follow them all. Only one may be necessary to win. Take whatever you like.

  • Clarity - Keep it simple.
  • Coming up with a simple, understandable, persuasive case theory that accounts for all of the facts is enough to win 80% of the time.
  • The facts of the case are whatever the fact finder will believe to be the truth after all the evidence is presented.
  • You must clearly think through your case so that before the trial you know what the judge or jury will find the facts to be.
  • Your case theory must account for every fact.
  • Your theory must not contradict any fact.
  • In one sentence you must be able to tell the judge or jury what the fight is about and why your client should win it.
  • If you can't explain why it is fair for your client to win so a ten-year-old agrees with you, then your theory and/or presentation need work.
  • Never say the case is complicated. It will scare the judge and discourage the jury. Say the case is simple and then make it so.
  • Most judges and jurors aren't much smarter than you so think KISS (keep it simple stupid).
  • Competence - Do it Right.
  • You must learn the rules of evidence so you can smoothly introduce exhibits.
  • You must learn local procedures. Yes, Virginia, there are local rules even though they are strictly prohibited. Ask other lawyers, clerks, and bailiffs to see how they do things in their jurisdictions.
  • You must know the law. At a minimum read the jury instructions so you know what you have to prove. It is also a good idea to read the Judges bench book.
  • And, of course, reading the Code and Michie's Jurisprudence hardly ever hurts.
  • It helps to read some recent CLE pubs dealing with your type of case. Brien
    Roche's Case Finder books are wonderful sources of information.
  • In domestic relations you should never try a case without reviewing Swisher, Diehl and
    Cottrell's Virginia Family Law.
  • I always find Johnston's Trial Handbook for Virginia Lawyers helpful.
  • Any book by Friend is excellent, especially his new Virginia Pleading and Practice set. Sinclair and Middleditch's Virginia Civil Procedure can help you overcome technical problems as can Sinclair, Kearfott,
    Sheridan, and Imwinkelried's Virginia Evidentiary Foundations.
  • Don't assume the court knows the law. Give the judge a trial memo showing both the statutes and the cases and provide copies of both to the judge and the other lawyer. If you are really sure, send your opposing counsel a copy well in advance of the trial.
  • Don't forget to check the advance sheet. There is nothing most judges like to follow better than a really recent precedent.
  • If you are quoting precedents from California, you need to rethink your theory of the case.
  • You must know the judge. Find out everything you can about the judge. Is the judge smart? Is the judge wise? Is the judge experienced? Has the judge been divorced? What were the grounds? Is the judge old-fashioned? Religious?
    Modern? Sanctimonious? An active parent? Sensitive? A math major? Can the judge divide by more than 2 or work percentages? In what area of the law did the judge practice as a lawyer? Read all cases where judge appealed.
  • Create a judge book for all judges before whom you regularly appear. Put all of their cases handled on appeal in that book. They will be very familiar with the law in those cases.
  • Talk to other lawyers about their experience with the judge.
  • Pay attention to the judge during the trial. You will learn a lot. Judges are just people with the same passions, prejudices, and personality quirks of other human beings. Black robes do not make them different - they just look different.
  • You must know the other lawyer's strengths and weaknesses. Ask other lawyers About the ones you don't know. Good and bad trial lawyers come in all shapes, ages, sizes, colors, and genders. You cant judge them by appearance and
    shouldnt judge them until you've seen them in court several times.
  • Cause and Effect - Make it logical.
  • If your theory of the case doesn't make sense, it is much harder to sell.
  • A well-reasoned presentation appeals to both a judge and a jury.
  • Your argument must pass the blush test. If you are embarrassed by your argument and don't believe it you need to abandon it. If you want the jury to say something to you, then you must be able to say it to them in a direct and sincere manner.
  • Even if it is true, it must not be contrary to common sense and experience so if your client's alibi involves space aliens, think again.
  • Facts are critical and speculation is specious. Never forget Samuel Johnson's admonition 'When speculation has done its worst, two and two still make four.'
  • Courage - You need to climb out on the limb because that is where the fruit is.
  • You have to engage in personal advocacy to be your most effective.
  • You can't hide behind such lawyer-like phrases as 'the evidence will show' rather you need to say, 'I will prove to you.'
  • Know the difference between a calculated risk and a foolish wager.
  • You must never be afraid of anyone in the courtroom - not a witness, the jury, the opposing counsel and certainly not the judge. Treat the judge like a sleeping bear - carefully and never poke him.
  • Use visualization techniques to see yourself controlling the trial.
  • You must steel yourself so you can ask any question that needs to be asked.
  • You must never fear not asking questions. Many times the proper and brave response to the opportunity to cross-examine is 'no questions.'
  • "Courage is what it takes to stand up and speak; courage is also what it takes to sit down and listen." - Morris L. West
  • Every day in almost every court room in Virginia noble lawyers keep their fear to themselves while they toil on behalf of their clients with no fanfare and return to their homes and offices hearing no praise for victory and no sympathy for defeat.
  • Character - Both you and your case need it.
  • You need to aim at the judge or jury's soul not just at the head and heart.
  • Your case theory has to be grounded in a common value.
  • You need to be consistent, trustworthy, helpful, courteous, honest, direct, prepared, punctual and polite. These virtues please the judges, amaze your opponents and make it likely a jury will like you.
  • When in doubt ask yourself how Atticus Finch would act.
  • Treat the clerks, bailiffs, witnesses, court reporters, subordinates, and cafeteria workers well. It is the right thing to do and judges and jurors will form opinions about your character by how you treat people who can't do you any good and/or can't fight back.
  • Credibility - Honesty isn't the best policy it is the only policy.
  • If they don't believe your evidence, you can't win.
  • If they don't believe you, then you can only win if they believe the other lawyer is an even bigger liar. This is not effective advocacy.
  • Nobody likes being lied to by anybody.
  • If you get caught putting on false testimony, you will lose.
  • If you knowingly put on false testimony, you are a bad lawyer but luckily won't be one for long.
  • You must prove facts. Don't blow your credibility if the case facts arenâ¿¢t there.
  • Minimize the factual differences between your case and your opponent's whenever possible. Try to agree on the facts but argue about the conclusions to be drawn from those facts.
  • Never forget your client's name, the name of the witness or your opponent's name or the judge's name. It makes you look dumb and unprepared thus undermining your credibility.
  • Never forget: the trial judge and jury think the lawyers know the truth and are trying to hide it.
  • Never bluff in a trial. Trial is a game of chess not poker.
  • Consistency - You must put all of your eggs in one basket
  • Never use alternative arguments at the trial level. The jury or judge gets nervous if you offer alternative theories. It can destroy confidence in all of your positions. The judge/jury is looking for one central theme that best reconciles the greatest number of discrepancies. A judge or jury will recall a central theme better than individual details. The fact finder needs to resolve conflict and that need becomes critical as the trial nears its end.

You have the legal right to take inconsistent positions but common sense should tell you not to do so.

Never make arguments that actually contradict each other. For example: My client never killed the victim, but if there is evidence he did, then it was an accident. If you don't believe that, then he was legally insane. Only bad lawyers and appellate judges think this way.

Never make arguments that appear to contradict each other. For example: There is a statutory bar to awarding spousal support, but even if there isn't, the amount claimed is excessive. Reverse the argument: The amount claimed for spousal support is excessive, but in any case there is a statutory bar to awarding spousal support.

If, at the end of the trial the judge and jury think you may not have been the smartest lawyer in the courtroom but at least you told them the truth, you are likely to win big.

In your opening statement to the court, do not ignore the good points your opponent will make. If you get to speak first you must deal with those points right from the start so you don't lose credibility.

After your opening there should be no facts left for your opponent to reveal.

It is essential to give your explanation before your adversary makes the accusation. Try to do it so it doesn't sound like an explanation.

You must acknowledge problems in your opening statement to the court and deal with them. This is what is known as drawing the sting, pulling the plug or inoculation. You do this so it does not appear you are hiding anything and so the unpleasant facts don't have undue emphasis.

Communication - If they don't get it everything else doesn't count.

Effective public speaking is a skill you can learn. If you are not good at it, join Toastmasters, read books on speaking, listen to good speakers, and practice, practice, practice.

Never talk like a lawyer - not even to a judge and especially not to a jury. Only police and attorneys use words like 'motor vehicles' and 'subsequent' and most people don't like cops or lawyers. The fact that nobody understands you doesn't mean you are smarter than everybody else.

Listen to the other attorney, the judge, and most importantly, the witnesses.

Hook your questions into the witnesses' responses to create a more interesting
dialogue for the jury.

Humor can help but the most effective form is when you poke fun
at yourself. If it doesn't come naturally, don't do it.

Look at the judge and jury. Think about what you see.

Learn to have a poker face and tell your client not to make faces, no matter the
testimony or the rulings.

If you think it, believe it, and feel it, the judge and jury will see it in your eyes and in your face and in your body. They will know the truth. You can not fool them and if you think you can, you are the fool.

Learn about 'body language' and 'non-verbal communication' and watch yours, particularly with a jury. Always dress and act properly. Think long and hard before you decide to express emotion to a jury. Most jurors will find a loud voice, belligerent manner and flamboyance annoying. Be relaxed, low key, and factual. Never attack anyone (the judge, a witness, or opposing counsel) in front of a jury. Don't treat jurors like mushrooms (keeping them in the dark and shoveling manure on them). Jurors are intelligent and resent being treated otherwise. Make sure you publish all evidence to the jury at one time. If your evidence is important, blow it up so everyone can see it. Don't turn your back to the jury - they might put a knife in it. Only make important objections and if you get to argue them in front of the jury do so using words and explanations that the jury will understand. Always stand when you are talking in court even if the Judge tells you it is not necessary. You project much more power when standing and are more likely to be get the judgeâ¿¢s or jury's attention and be clearly heard.

Learn how to tell a story effectively. There are lots of books on this subject you can read. Tell your story to the jury in the present tense. Don't use a lot of adjectives. Always understate your case. Never promise what you can't deliver.

Concentration - Focus is all-important

Only use necessary evidence. In trial, less is more.

Argue your case at every stage of the trial. Learn how to argue in your opening statement, while putting on direct testimony, during cross-examination and in closing, by attending Herb Stern's CLEs and reading his books.

Use cumulative proof but don't make cumulative arguments. When you add a weak argument to a strong argument, you weaken, not strengthen.

Beware: the Court and jurors think you need all of the evidence you present. Don't put in weak proof and never forget the more witnesses you have on the same point, the greater the likelihood they will contradict one another. One great witness is better than several good witnesses or dozens of mediocre witnesses.

Give up your weak points or figure out someway to turn them to your advantage.

Confidence - It isn't bragging if you can do it.

There is a difference between confidence and arrogance.

There is a difference between strength and intimidation.

There is a difference between civility and condescending behavior.

There is a difference between consideration and weakness.

If you don't know these differences, you are probably insecure, obnoxious and annoying and should consider seeking counseling. You are also not as great a trial lawyer as you think you are or as you could be.

If any of the following statements sound reasonable to you, money on therapy would be well spent: I'm not being rude. You're just insignificant.
I'm really easy to get along with once you people learn to worship me. At least I have a positive attitude toward my destructive habits. I like you. You remind me of when I was young and stupid.

Have fun and look like you enjoy what you are doing.

Never underestimate your opposing counsel and always out-work them.