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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. Indianapolis employers harassment among minorities AFRICAN Americans needs to be discussed the metro Indianapolis area is horrible when it comes to harassing African American employees especially in the local healthcare facilities. Racially profiling in the workplace is an major issue. Please make it better because I'm many civil rights leaders would come here and justify that Indiana is a state the WORKS only applies to Caucasian Americans especially in Hamilton county. Indiana targets African Americans in the workplace so when governor pence is trying to convince people to vote for him this would be awesome publicity for the Presidency Elections.

  2. Wishing Mary Willis only God's best, and superhuman strength, as she attempts to right a ship that too often strays far off course. May she never suffer this personal affect, as some do who attempt to change a broken system: https://www.youtube.com/watch?v=QojajMsd2nE

  3. Indiana's seatbelt law is not punishable as a crime. It is an infraction. Apparently some of our Circuit judges have deemed settled law inapplicable if it fails to fit their litmus test of political correctness. Extrapolating to redefine terms of behavior in a violation of immigration law to the entire body of criminal law leaves a smorgasbord of opportunity for judicial mischief.

  4. I wonder if $10 diversions for failure to wear seat belts are considered moral turpitude in federal immigration law like they are under Indiana law? Anyone know?

  5. What a fine article, thank you! I can testify firsthand and by detailed legal reports (at end of this note) as to the dire consequences of rejecting this truth from the fine article above: "The inclusion and expansion of this right [to jury] in Indiana’s Constitution is a clear reflection of our state’s intention to emphasize the importance of every Hoosier’s right to make their case in front of a jury of their peers." Over $20? Every Hoosier? Well then how about when your very vocation is on the line? How about instead of a jury of peers, one faces a bevy of political appointees, mini-czars, who care less about due process of the law than the real czars did? Instead of trial by jury, trial by ideological ordeal run by Orwellian agents? Well that is built into more than a few administrative law committees of the Ind S.Ct., and it is now being weaponized, as is revealed in articles posted at this ezine, to root out post moderns heresies like refusal to stand and pledge allegiance to all things politically correct. My career was burned at the stake for not so saluting, but I think I was just one of the early logs. Due, at least in part, to the removal of the jury from bar admission and bar discipline cases, many more fires will soon be lit. Perhaps one awaits you, dear heretic? Oh, at that Ind. article 12 plank about a remedy at law for every damage done ... ah, well, the founders evidently meant only for those damages done not by the government itself, rabid statists that they were. (Yes, that was sarcasm.) My written reports available here: Denied petition for cert (this time around): http://tinyurl.com/zdmawmw Denied petition for cert (from the 2009 denial and five year banishment): http://tinyurl.com/zcypybh Related, not written by me: Amicus brief: http://tinyurl.com/hvh7qgp

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