Lights! Camera! Trial!

Sometimes lawyers tell clients to “forget what you may have seen in the movies; your trial will be nothing like that”. Maybe, but there will be a courtroom, a Judge, an opposing attorney, witnesses, exhibits, etc., just like the movies. True, a Joe Pesci-esque character will not likely come into court with a leather coat and a Brooklyn accent, but that is not to say trial lawyers are like  “normal” people. We aren’t.

A trial is a combination of procedure and performance, both of which are equally important. However, if the procedure was followed, and your case is prepared properly, the performance can make a difference. A trial is not a show, but trial lawyers know in the end we must convince a Judge our argument is correct. Evidence and procedure are helpful, but presentation matters.

Boiled down, a trial is opening statements, presentation of testimony and exhibits (evidence), objections, and closing statements. There could be other issues like motions to do this or that, but usually trials follow a pattern. So, what do these terms mean? Well…

A. Opening Statement – An opening statement is not an argument. The opening is meant to give the Judge an idea of what the issues are, what the evidence will be, and what you are asking the Judge to do. Each attorney has their own style for opening statements. Mine is simple:

  • Always given an opening statement;
  • Keep it short and to the point (5-10 minutes); and
  • Don’t argue.

Usually a trial happens after months of preparation. The parties know the issues, the Judge knows the issues, and they just want to GET ON WITH IT. However, it is a mistake to waive an opening argument, even if it seems like a “simple” case. A trial is not a time to assume anything. Even if the same Judge heard all the motions and had the parties in the courtroom dozens of times before trial, assuming the Judge knows the case is an error. Expect your attorney to take a few minutes to frame the case and let everyone know what to expect.

B. Direct Examination – Direct examination is the first time the witness is questioned and tells what they know about the case. During direct examination the witness should give the Judge background information that supports their proposal, and tells the Judge the story of the case. The Judge does not want to hear from the lawyer, the Judge wants to hear from the witness. If you are called as a witness (and you will be) be prepared to give more than just “yes” or “no” answers. The questions should be open-ended (What, Why, Who, etc.), and answers should be given to help the Judge understand why the issues are important.

C. Cross Examination – Cross examination is what you usually see in movies, with lawyers shouting at witnesses and giving lectures. That is not how it is supposed to happen, and usually it does not. That said, we lawyers love to hear ourselves talk, and we’ve seen the same movies you’ve seen. Cross examination is the chance for the lawyer to get the witness to say things they do not want to say by using leading questions. Again, each lawyer has their own style, but I find that haranguing a witness is not effective, especially if the witness cries. While that might sound satisfying, it can make the lawyer look like a bully and create sympathy for the witness. The better technique is to methodically go through the testimony and evidence, get the witness to admit they were wrong (or better yet lying – that is the best), and show the Judge they are not credible. Usually it is not that clear, but cross examination is the best way to keep witnesses honest about the facts.

D. Re-Direct/Re-Cross – After the direct examination and cross examination lawyers have a chance to ask additional questions if needed. Re-direct or re-cross questions are not required, but they are common, especially if the cross examination was damaging to the case and the witness needs rehabilitated.

E. Objections – Objections happen when a lawyer thinks a question or exhibit should not be used as evidence. If you are testifying and a lawyer objects, stop talking. The Judge will rule on the objection and then tell the witness how to proceed.

F. Admission of Exhibits – Exhibits are usually copies of records, photographs, emails/texts, reports, and sometimes recordings. But just bringing them to Court is not enough. Exhibits must be relevant to the case, authentic, and testified to by a witness. Sometimes exhibits are stipulated into evidence beforehand to save time at trial, but contested exhibits will require foundation, or the background letting the Judge know the exhibit should be admitted and considered as evidence. Foundation comes from witness testimony, and it can be tricky if the witness (or the lawyer) is not prepared. Beware: exhibits for a trial can be hundreds, if not thousands, of pages. You should review them all carefully before trial. The likelihood you will be asked about an exhibit is very high. If you have not reviewed all the exhibits before the time of trial it could be damaging to your case.

G. Closing Statement – This actually is argument. This is the time the lawyer tells the Judge what the evidence shows, how the evidence supports your case, and why you should prevail. Closings are longer because the lawyer can now argue the client’s position. Again, differences in styles are abundant, but I find that a calm and collected argument, referring to all the evidence, positive and negative, is the best option. An older lawyer once told me something I will never forget: the only reason for a lawyer to be dramatic in court is if they do not have a good case.

A trial is not a fight, or a time for hysterics. Emotions will be high, and lawyers cannot help but be a little dramatic. But too much drama detracts from the message. Rather, a trial should be a well-organized presentation of the evidence demonstrating why your position on the issues is correct. Not a robotic recitation, but not so much drama the message is lost.

After all, this is not a movie.

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