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DTCI: Reflections of a rookie trial lawyer

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Mundrick_Keith.jpgBy Keith Mundrick

I am a freshman trial attorney, but I have not been red-shirted. I knew when I joined State Farm Litigation Counsel that I would be thrown right into the fire. Six short months later, I have deposed, mediated, negotiated, argued, tried and lain awake at night worrying about what might be said on the witness stand the next morning. And through it all, I’m having a blast.

It’s great being a rookie lawyer, and it’s even better in litigation. Every litigator’s goal is to connect with the jury, and a rookie lawyer is the closest thing in the office to a juror. Rookie lawyers were “laypersons” just a few months ago, and they can still take off their lawyer hats with relative ease. That seems to make me pretty popular in my office, and I would encourage all experienced attorneys to see how their younger associates perceive arguments that will be presented in court.

I do not purport to be any kind of expert on juries, but I do have a unique perspective as a newcomer. In the past few months I have tried, second-chaired or observed about 10 jury trials. The advice in this article is that of an attorney who watches a lot of lawyers, pays close attention to the jury, and is still trying to find his style. Please take all suggestions with a healthy dose of salt.

Keep the jury’s attention

Congratulations! You just executed the most brilliant cross-examination of your career. You obtained some absolutely crushing evidence from a key witness, and your opposing counsel looks like he might become physically ill. But there is some bad news. It seems your monotonous voice and lack of inflection has lulled the jurors into a state of suspended animation. Were they even listening to the key points? Or were they focusing on that spider walking across the ceiling? Does Juror No. 3 still have a pulse?

The only evidence that matters is the evidence the jurors remember when they deliberate. Effective attorneys are animated and audible. The courtroom is a formal place, but lawyers need not be stiff and lifeless. It is also important to make sure the witness is answering questions clearly. Don’t be afraid to ask a witness to speak up, or to take a few steps back so he is forced to speak louder.

Jurors can get lost

It is also important to notice when the jury may be losing track of the story line you are trying to create. This is crucial when a case hinges on specific dates or locations. Don’t just ask a witness which lane of travel he was in – have him point to it on a satellite image. Instead of talking about dates of treatment, show the jury a timeline. If you plan to argue that a plaintiff’s medical condition started before the date of the accident, be certain that the jury knows the date of the accident.

Every attorney is familiar with the facts of her case. After all, the attorney received the complaint, deposed the parties, visited the scene and so forth. Effective attorneys constantly remind themselves that the jury did none of these things.

Respect the jurors’ time (and tell them you’re respecting their time)

Some jurors want to get out of jury duty more than others, but very few of them really want to be there. When an attorney calls three different witnesses who say the same thing, the jurors notice. When an attorney examines each of those witnesses at a snail’s pace, they notice even more. Don’t be afraid to let the jurors know during voir dire or opening statements that you appreciate their time and will do your very best to streamline the trial for them.

Bring somebody to trial with you

If you have a young associate or law clerk, bring her along to trial. When your eyes are on the witness during an intense examination, your colleague’s eyes can remain on the jury. Even if you bring a friend who sits in the gallery, he can provide crucial feedback during recesses. I have noticed some jurors smiling or subtly nodding when a particular topic is being discussed; it’s always good to know which theories are hitting home.

Easy on the objections

Don’t be that lawyer: The lawyer who objects to everything. The lawyer who is making this trial twice as long as it need be. The jury doesn’t like that lawyer, and it makes the jury think that lawyer is hiding something. It makes the jury wonder about what the answer to that objectionable question might have been.

There are obviously some objections that need to be made, but there are many objections that do not. Some objections might actually hurt you – think about how that hearsay affects your case before speaking up. If the hearsay declarant is exonerating your client, who cares if it’s hearsay?

Civility rules the day

Trials are confrontational by their very nature, but they do not need to be nasty. There is a difference between argument for the sake of persuasion and argument for the sake of disruption. Learn this distinction and be aware of it. The former can be done with civility and professionalism toward the bench and opposing counsel. The latter is destined to be frowned upon, and will do nothing to help your client or your professional reputation.

Final thoughts

These suggestions might seem obvious – otherwise a rookie lawyer wouldn’t be discussing them – but in the chaos of trial, many attorneys can lose sight of the forest in favor of the trees. Every litigator, no matter how experienced, can benefit from sitting in the gallery of a trial he knows nothing about. Which theories make sense to you? Who makes the most credible witness? Who let that rookie lawyer try this case?•

Mr. Mundrick is a member of DTCI and an attorney with State Farm Litigation Counsel where he defends the State Farm enterprise and its policyholders in a variety of civil actions throughout Indiana. The opinions expressed in this article are those of the author.

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  1. So that none are misinformed by my posting wihtout a non de plume here, please allow me to state that I am NOT an Indiana licensed attorney, although I am an Indiana resident approved to practice law and represent clients in Indiana's fed court of Nth Dist and before the 7th circuit. I remain licensed in KS, since 1996, no discipline. This must be clarified since the IN court records will reveal that I did sit for and pass the Indiana bar last February. Yet be not confused by the fact that I was so allowed to be tested .... I am not, to be clear in the service of my duty to be absolutely candid about this, I AM NOT a member of the Indiana bar, and might never be so licensed given my unrepented from errors of thought documented in this opinion, at fn2, which likely supports Mr Smith's initial post in this thread: http://caselaw.findlaw.com/us-7th-circuit/1592921.html

  2. When I served the State of Kansas as Deputy AG over Consumer Protection & Antitrust for four years, supervising 20 special agents and assistant attorneys general (back before the IBLE denied me the right to practice law in Indiana for not having the right stuff and pretty much crushed my legal career) we had a saying around the office: Resist the lure of the ring!!! It was a take off on Tolkiem, the idea that absolute power (I signed investigative subpoenas as a judge would in many other contexts, no need to show probable cause)could corrupt absolutely. We feared that we would overreach constitutional limits if not reminded, over and over, to be mindful to not do so. Our approach in so challenging one another was Madisonian, as the following quotes from the Father of our Constitution reveal: The essence of Government is power; and power, lodged as it must be in human hands, will ever be liable to abuse. We are right to take alarm at the first experiment upon our liberties. I believe there are more instances of the abridgement of freedom of the people by gradual and silent encroachments by those in power than by violent and sudden usurpations. Liberty may be endangered by the abuse of liberty, but also by the abuse of power. All men having power ought to be mistrusted. -- James Madison, Federalist Papers and other sources: http://www.constitution.org/jm/jm_quotes.htm RESIST THE LURE OF THE RING ALL YE WITH POLITICAL OR JUDICIAL POWER!

  3. My dear Mr Smith, I respect your opinions and much enjoy your posts here. We do differ on our view of the benefits and viability of the American Experiment in Ordered Liberty. While I do agree that it could be better, and that your points in criticism are well taken, Utopia does indeed mean nowhere. I think Madison, Jefferson, Adams and company got it about as good as it gets in a fallen post-Enlightenment social order. That said, a constitution only protects the citizens if it is followed. We currently have a bevy of public officials and judicial agents who believe that their subjectivism, their personal ideology, their elitist fears and concerns and cause celebs trump the constitutions of our forefathers. This is most troubling. More to follow in the next post on that subject.

  4. Yep I am not Bryan Brown. Bryan you appear to be a bigger believer in the Constitution than I am. Were I still a big believer then I might be using my real name like you. Personally, I am no longer a fan of secularism. I favor the confessional state. In religious mattes, it seems to me that social diversity is chaos and conflict, while uniformity is order and peace.... secularism has been imposed by America on other nations now by force and that has not exactly worked out very well.... I think the American historical experiment with disestablishmentarianism is withering on the vine before our eyes..... Since I do not know if that is OK for an officially licensed lawyer to say, I keep the nom de plume.

  5. I am compelled to announce that I am not posting under any Smith monikers here. That said, the post below does have a certain ring to it that sounds familiar to me: http://www.catholicnewworld.com/cnwonline/2014/0907/cardinal.aspx

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