We asked OBA members: What is your best trial prep tip?
In the final scene of The Usual Suspects, Agent Kujan sips his cheap police station coffee, bemused with his bullied, yet pointless, interrogation of the pathetic Verbal Kint. Then the revelation strikes. A flurry of images, facts, and connections flood his mind all pointing to one thing that in retrospect seems painfully obvious: the identity of Keyser Söze. The coffee cup drops.
At its highest moments, effective trial advocacy has the same effect upon a trier of fact. In essence, the role of the advocate to orchestrate the illusion of epiphanies.
The importance of preparation goes without saying. Yet, what matters most is how those countless hours are reined. With mastery of the facts comes the ability to weave your narrative. That narrative must be simple, cohesive, and seemingly inevitable from the evidence. Once chosen, there is no longer room for wavering. It must then unfold with a deliberate patience, suspense, and understatement. It is your role to quietly lead people to their own beliefs, not forcefully impose yours upon them. Ultimately, persuasion is not about you being right, it is about convincing your audience that they are.
- Sean Robichaud, Barrister & Solicitor
Keep working away on the presentation of your client's evidence until it is logically woven into the winning legal theory you've taken care to select.
- Chia yi Chua, McCarthy Tétrault LLP
Spend time preparing your witnesses but don't overshare your trial strategy with them or they may appear like advocates on the witness stand.
Prepare a chronology and a handout of your argument to give to the judge. Help the judge distill the facts and give them a roadmap of where you want them to end up.
Discuss your case with a colleague and get their thoughts. It never hurts to hear another perspective.
- Sahar Cadili, Lawrence, Lawrence Stevenson LLP
Master the facts
You can not overstate the need for preparation ---you must be the master of the facts ---know the “good facts” and the “bad facts” BEFORE you start the case.
Master the law you will be relying on
Anticipate arguments and obstacles that may arise during the course of the trial and be prepared to meet them head on.
Know your story
All of that is critical so that you can weave together the “story” from your client's perspective so that it factually and legally “hangs together”. Trial advocacy is in many ways about story telling –-know the story you intend to tell.
Craft your opening
The story begins with a clear, concise and crisp opening -- what’s this case about and how are you going to get to the finish line?
Prepare your examination in chief
Remember that examination in chief is critical to setting out your “story” - you want to paint your clients as having been unjustly or unfairly treated so that the judge will want to help you. Most cases are won with well thought-out, well prepared examinations in chief rather than by cross-examination.
Don’t forget to emphasize the remedy you want
Many counsel forget to turn their mind to what it is they ultimately want the judge to do at the end of the case -- make the path to the end zone easy for the judge.
Be confident in the court room
Be in command of your witnesses and your case.
- Chris Paliare, Paliare Roland Rosenberg Rothstein LLP
Be the most prepared person in the room. Don't let anyone outwork you or know more about the case than you do.
- Michael Lacy, Brauti Thorning Zibarras LLP
Prepare your own witnesses for vigorous cross-examination: Being cross-examined is, for most witnesses, a unique, unusual, and potentially unpleasant situation. While you don’t want to ‘over-prepare’ a witness, conducting some mock cross-examination and testing your witnesses’ evidence can be a great way to foreshadow what the witness can expect at trial, and improve your presentation.
Tell a story with your examination-in-chief: Having a strong exam-in-chief is often as important as a good cross and closing. Tell a story through your witness instead of getting into a pattern of monotone, open-ended questions (i.e. then what happened? What next? And after that?). Interact with the witness, reference their prior testimony when opening issues up, and do your best to ensure the examination comes off as a conversation, which tells your client’s story.
Don’t underestimate the value of visual aids, chronologies, summaries, etc.: Judges are busy and in the 21st century, even lower value cases can be document heavy. Never underestimate how helpful it is to a judge to receive documents that simplify the case and provide a big picture. For example, consider providing a chronology of key events, a ‘cast of characters’ setting out the main players and their relationships to each other, and the use of tables, charts, etc. to aggregate data.
- Justin Nasseri, Pape Barristers Professional Corporation
Make sure you can explain your case in one non-deathly-boring sentence.
- Daniel Goldbloom, Goldbloom Law
Understand the Human Condition and Tell the Story
An effective trial lawyer understands that persuasive advocacy requires more than a summary of facts and law, or a technical explanation of their client’s position. It requires the trial lawyer to tell a story and to do that they must humanize themselves and their client. Understanding the human condition is an essential component of effective advocacy. The trial lawyer is not a computer; nor is the judge, jury or other trier of fact who listens to them, in some cases for months at a time.
The way to capture attention is through storytelling. The successful trial lawyer does not simply present their case – they tell their client’s story in words that are easy to understand and that generate empathy and interest in those listening to it. A fundamental part of successful storytelling is simplifying communication and developing the story in a way that allows the listener to absorb and synthesize the information presented in a natural and relaxed manner.
Between hours of preparation, witness interviews, drafts and redrafts, and copious amounts of coffee (or whatever your energy drink of choice), it can be easy to lose sight of the reality that trials are meant to tell a human story, no matter the technical or complicated features of the subject matter being presented. Many trial lawyers lose sight of the big picture; they get stuck in the weeds and forget to tell the story. So, our advice when preparing for a trial is simple: focus your time and energy on building a human story that is not only easy to understand but also keeps your audience interested and engaged. At the end of the day, everybody loves a good story and telling stories is what trial lawyers were born to do.
- The Lawyers of Polley Faith LLP