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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. I have been on this program while on parole from 2011-2013. No person should be forced mentally to share private details of their personal life with total strangers. Also giving permission for a mental therapist to report to your parole agent that your not participating in group therapy because you don't have the financial mean to be in the group therapy. I was personally singled out and sent back three times for not having money and also sent back within the six month when you aren't to be sent according to state law. I will work to het this INSOMM's removed from this state. I also had twelve or thirteen parole agents with a fifteen month period. Thanks for your time.

  2. Our nation produces very few jurists of the caliber of Justice DOUGLAS and his peers these days. Here is that great civil libertarian, who recognized government as both a blessing and, when corrupted by ideological interests, a curse: "Once the investigator has only the conscience of government as a guide, the conscience can become ‘ravenous,’ as Cromwell, bent on destroying Thomas More, said in Bolt, A Man For All Seasons (1960), p. 120. The First Amendment mirrors many episodes where men, harried and harassed by government, sought refuge in their conscience, as these lines of Thomas More show: ‘MORE: And when we stand before God, and you are sent to Paradise for doing according to your conscience, *575 and I am damned for not doing according to mine, will you come with me, for fellowship? ‘CRANMER: So those of us whose names are there are damned, Sir Thomas? ‘MORE: I don't know, Your Grace. I have no window to look into another man's conscience. I condemn no one. ‘CRANMER: Then the matter is capable of question? ‘MORE: Certainly. ‘CRANMER: But that you owe obedience to your King is not capable of question. So weigh a doubt against a certainty—and sign. ‘MORE: Some men think the Earth is round, others think it flat; it is a matter capable of question. But if it is flat, will the King's command make it round? And if it is round, will the King's command flatten it? No, I will not sign.’ Id., pp. 132—133. DOUGLAS THEN WROTE: Where government is the Big Brother,11 privacy gives way to surveillance. **909 But our commitment is otherwise. *576 By the First Amendment we have staked our security on freedom to promote a multiplicity of ideas, to associate at will with kindred spirits, and to defy governmental intrusion into these precincts" Gibson v. Florida Legislative Investigation Comm., 372 U.S. 539, 574-76, 83 S. Ct. 889, 908-09, 9 L. Ed. 2d 929 (1963) Mr. Justice DOUGLAS, concurring. I write: Happy Memorial Day to all -- God please bless our fallen who lived and died to preserve constitutional governance in our wonderful series of Republics. And God open the eyes of those government officials who denounce the constitutions of these Republics by arbitrary actions arising out capricious motives.

  3. From back in the day before secularism got a stranglehold on Hoosier jurists comes this great excerpt via Indiana federal court judge Allan Sharp, dedicated to those many Indiana government attorneys (with whom I have dealt) who count the law as a mere tool, an optional tool that is not to be used when political correctness compels a more acceptable result than merely following the path that the law directs: ALLEN SHARP, District Judge. I. In a scene following a visit by Henry VIII to the home of Sir Thomas More, playwriter Robert Bolt puts the following words into the mouths of his characters: Margaret: Father, that man's bad. MORE: There is no law against that. ROPER: There is! God's law! MORE: Then God can arrest him. ROPER: Sophistication upon sophistication! MORE: No, sheer simplicity. The law, Roper, the law. I know what's legal not what's right. And I'll stick to what's legal. ROPER: Then you set man's law above God's! MORE: No, far below; but let me draw your attention to a fact I'm not God. The currents and eddies of right and wrong, which you find such plain sailing, I can't navigate. I'm no voyager. But in the thickets of law, oh, there I'm a forester. I doubt if there's a man alive who could follow me there, thank God... ALICE: (Exasperated, pointing after Rich) While you talk, he's gone! MORE: And go he should, if he was the Devil himself, until he broke the law! ROPER: So now you'd give the Devil benefit of law! MORE: Yes. What would you do? Cut a great road through the law to get after the Devil? ROPER: I'd cut down every law in England to do that! MORE: (Roused and excited) Oh? (Advances on Roper) And when the last law was down, and the Devil turned round on you where would you hide, Roper, the laws being flat? (He leaves *1257 him) This country's planted thick with laws from coast to coast man's laws, not God's and if you cut them down and you're just the man to do it d'you really think you would stand upright in the winds that would blow then? (Quietly) Yes, I'd give the Devil benefit of law, for my own safety's sake. ROPER: I have long suspected this; this is the golden calf; the law's your god. MORE: (Wearily) Oh, Roper, you're a fool, God's my god... (Rather bitterly) But I find him rather too (Very bitterly) subtle... I don't know where he is nor what he wants. ROPER: My God wants service, to the end and unremitting; nothing else! MORE: (Dryly) Are you sure that's God! He sounds like Moloch. But indeed it may be God And whoever hunts for me, Roper, God or Devil, will find me hiding in the thickets of the law! And I'll hide my daughter with me! Not hoist her up the mainmast of your seagoing principles! They put about too nimbly! (Exit More. They all look after him). Pgs. 65-67, A MAN FOR ALL SEASONS A Play in Two Acts, Robert Bolt, Random House, New York, 1960. Linley E. Pearson, Atty. Gen. of Indiana, Indianapolis, for defendants. Childs v. Duckworth, 509 F. Supp. 1254, 1256 (N.D. Ind. 1981) aff'd, 705 F.2d 915 (7th Cir. 1983)

  4. "Meanwhile small- and mid-size firms are getting squeezed and likely will not survive unless they become a boutique firm." I've been a business attorney in small, and now mid-size firm for over 30 years, and for over 30 years legal consultants have been preaching this exact same mantra of impending doom for small and mid-sized firms -- verbatim. This claim apparently helps them gin up merger opportunities from smaller firms who become convinced that they need to become larger overnight. The claim that large corporations are interested in cost-saving and efficiency has likewise been preached for decades, and is likewise bunk. If large corporations had any real interest in saving money they wouldn't use large law firms whose rates are substantially higher than those of high-quality mid-sized firms.

  5. The family is the foundation of all human government. That is the Grand Design. Modern governments throw off this Design and make bureaucratic war against the family, as does Hollywood and cultural elitists such as third wave feminists. Since WWII we have been on a ship of fools that way, with both the elite and government and their social engineering hacks relentlessly attacking the very foundation of social order. And their success? See it in the streets of Fergusson, on the food stamp doles (mostly broken families)and in the above article. Reject the Grand Design for true social function, enter the Glorious State to manage social dysfunction. Our Brave New World will be a prison camp, and we will welcome it as the only way to manage given the anarchy without it.

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