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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. It appears the police and prosecutors are allowed to change the rules halfway through the game to suit themselves. I am surprised that the congress has not yet eliminated the right to a trial in cases involving any type of forensic evidence. That would suit their foolish law and order police state views. I say we eliminate the statute of limitations for crimes committed by members of congress and other government employees. Of course they would never do that. They are all corrupt cowards!!!

  2. Poor Judge Brown probably thought that by slavishly serving the godz of the age her violations of 18th century concepts like due process and the rule of law would be overlooked. Mayhaps she was merely a Judge ahead of her time?

  3. in a lawyer discipline case Judge Brown, now removed, was presiding over a hearing about a lawyer accused of the supposedly heinous ethical violation of saying the words "Illegal immigrant." (IN re Barker) http://www.in.gov/judiciary/files/order-discipline-2013-55S00-1008-DI-429.pdf .... I wonder if when we compare the egregious violations of due process by Judge Brown, to her chiding of another lawyer for politically incorrectness, if there are any conclusions to be drawn about what kind of person, what kind of judge, what kind of apparatchik, is busy implementing the agenda of political correctness and making off-limits legit advocacy about an adverse party in a suit whose illegal alien status is relevant? I am just asking the question, the reader can make own conclsuion. Oh wait-- did I use the wrong adjective-- let me rephrase that, um undocumented alien?

  4. of course the bigger questions of whether or not the people want to pay for ANY bussing is off limits, due to the Supreme Court protecting the people from DEMOCRACY. Several decades hence from desegregation and bussing plans and we STILL need to be taking all this taxpayer money to combat mostly-imagined "discrimination" in the most obviously failed social program of the postwar period.

  5. You can put your photos anywhere you like... When someone steals it they know it doesn't belong to them. And, a man getting a divorce is automatically not a nice guy...? That's ridiculous. Since when is need of money a conflict of interest? That would mean that no one should have a job unless they are already financially solvent without a job... A photographer is also under no obligation to use a watermark (again, people know when a photo doesn't belong to them) or provide contact information. Hey, he didn't make it easy for me to pay him so I'll just take it! Well heck, might as well walk out of the grocery store with a cart full of food because the lines are too long and you don't find that convenient. "Only in Indiana." Oh, now you're passing judgement on an entire state... What state do you live in? I need to characterize everyone in your state as ignorant and opinionated. And the final bit of ignorance; assuming a photo anyone would want is lucky and then how much does your camera have to cost to make it a good photo, in your obviously relevant opinion?

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