LEGAL GUIDE
Written by attorney Roy Lee Comer | Apr 11, 2011

Six Qualities of Great Trial Lawyers

SIX QUALITIES OF GREAT TRIAL LAWYERS [1]

Roy L. Comer, Esq.

1.YOUR OWN STYLE

You are unique. There’s no one exactly like you. You have, through time and experience, developed your own particular “success strategy"—the things that you do to make your way in the world.

Nonetheless, whether you like it or not, you have a style of presenting yourself to the world. That style will be the pattern by which you subconsciously present yourself and your evidence at trial. As you develop your skills, you are going to see other attorneys and their own “success strategies" in trial. There is simply no substitute for watching real lawyers presenting real cases in real time. What you see in the media is very different than the real thing.

Upon completion of your trials, ask to talk to the jury. They may give you valuable feedback, but be wary: most of them will say things to avoid hurting your feelings. A better form of feedback for some lawyers is a meeting with the judge. S/he may not choose to meet with you, but you may be surprised how many will agree to meet with you for a few minutes in chambers to discuss your strengths and weaknesses—at least as s/he saw them in that particular trial.

Great trial lawyers develop great trial skills within their own particular style.

2.YOUR OWN COMPELLING STORY

Don’t let the word “story" throw you. Every one of us grew up listening to stories—it is the most primitive method of communicating information because it is the most memorable.

The best stories have a powerful beginning. Your audience decides very quickly if this is a story that interests them or not. People tend to remember what they see or hear first (a concept known as “primacy"). This works in your everyday encounters as well as in trial. People tend to make snap judgments and they almost always cannot explain why they have done so. Therefore, make sure your first impression is powerful and on point.

Great trial lawyers develop a compelling story.

3.YOUR OWN THEORY (BUT THROUGH JURORS’ EYES)

Law school teaches us to be analytical. Without proper use of the intellectual scalpel to cut away the irrelevant from the relevant, we are left with a convoluted and confusing mess of a case. Theory is the reason your client should prevail, and law school teaches us to explore all theories: spot those issues or fail the course.

In this way, law school distances us from everyday jurors. First, they are not taught to spot issues. Their individual backgrounds will color how they see the parties and the evidence. Second, they are not taught to advocate a position. They have no vested interest in any particular item of evidence so they won’t unintentionally discount evidence like advocates sometimes do. In fact, they might find a particular fact that we believe to be relatively unimportant to be the key to the whole case.

Testing your theory with friends, family and associates is a common way to see if it all makes sense. As Voltaire said, “Common sense is not so common," but failure to run your theory past others for their take on it is short-sighted. Do research in publications for similar fact patterns to determine the relative value of your case through similar jury verdicts. Larger value cases may benefit from trial consultants or focus groups.

Great trial lawyers are not afraid to let others examine their theories.

4.YOUR OWN PREPARATION

Jurors expect the lawyers to know and understand their case. In fact, many of them come into the courtroom expecting that at least one of the lawyers knows the truth, but will try to fool them anyway because that’s what their client is paying them to do. Thus, your preparation, or lack thereof, will either confirm their worst suspicions of you, or convince them you know the truth and are leading them to a logical and just verdict based on the evidence and the law.

Some say that the most important witness in the courtroom is the advocate. Evidence that is presented without context, or in a haphazard manner, demonstrates a lack of preparation.

Furthermore, your preparation includes your assessment of opposing counsel. Many a case has been lost or diminished by underestimating his/her ability. A word to the wise is sufficient.

Organizational tools, such as trial notebooks, make trial preparation systematic and will help preclude duplication of effort. There are many great systems out there; find one that fits your temperament and use it.

Great trial lawyers prepare meticulously, and use trial notebooks to remain organized through trial.

5.YOUR OWN INTEGRITY

Integrity is telling yourself the truth. It comes from a deep-seated sense of what is right, not what is expedient.

This quality is directly connected to your preparation. The jury sees you as personally responsible for what happens in the courtroom. If something happens that causes the jury to disbelieve a witness’ testimony, the jury will hold you responsible. Every piece of evidence from that time forward will be received with even more distrust.

If you have failed to tell yourself the truth about the weaknesses of your case, pressure from the client to assert inconsistent arguments can offend the jury. Furthermore, if the pressure from the client doesn’t offend, your acquiescence does.

The better approach is to embrace the facts of the case—both the good and the bad—and turn that weakness into a strength. Show the jury that you stand for truth and that the jury can trust you to present the truth. By exposing your weaknesses in the best possible light you may be able to preempt the opposing counsel’s magnification of what is now a minor point when presented properly in context.

Great trial lawyers do everything in their power to maintain their integrity, and this goes to choosing the witnesses they call, especially experts.

6.YOUR OWN PASSION

Take a stand. Boldly assert and steadfastly maintain. Your confidence and passion should be obvious to the jury, giving no quarter to opposing counsel. If you don’t believe in your client’s case, there is a great likelihood the jury won’t believe in it, either. “Try your winners, settle your losers." If this is a loser, your words, your tone of voice and your body language will betray your lack of conviction. Your client is entitled to a lawyer that believes in his/her case. If it is not you, choose your path carefully—perhaps association of counsel or substitution may be necessary. At the very least, a gut check is appropriate.

You cannot vouch for the position of your client; but each segment of the trial should be presented with white-hot conviction so your personal belief in the justice of your client’s position is obvious to all.

Some say that jurors make decisions based on who is right and who is wrong, regardless of the burden of proof. Jurors may not want to be there, but once sworn as jurors, they take their job seriously.

They can spot inconsistent arguments as weaknesses in logic. James McElhaney gave the argument of the defense of a farmer whose goats were accused of eating his neighbor’s cabbages: “First of all, you had no cabbages. Second, if you had cabbages, they weren’t eaten. Third, if your cabbages were eaten, they weren’t eaten by goats. Fourth, if your cabbages were eaten by goats, they weren’t my goats. Last, if your cabbages were eaten by my goats, my goats were insane!" This five-fold defense is obviously inconsistent with reality, and if you try something remotely similar, jurors will see through it easily.

Great trial lawyers present a consistent claim with passion and personal conviction in the truth of their client’s position.

7.CONCLUSION

Of course, there are many other qualities of great trial lawyers, such as charisma, self-control, economy of language, etc. This is not intended to be exhaustive.

Furthermore, there are six factors that influence the outcome of the case: (1) the facts; (2) the law; (3) the witnesses; (4) the jury; (5) the judge; and (6) the lawyers. You only really have the ability to control the last factor. Your well-developed discovery, your presentation of a clear and convincing case, your attitude and demeanor before the jury—these are all critical factors, but do not completely cancel the other five.

Nevertheless, great trial lawyers all possess these six qualities. Go, develop these—and more—and show the world what you can do.

[1] This article was originally written to be part of the syllabus for the 2011 Orange County Bar Association College of Trial Advocacy. It liberally borrows from Read, D. Shane, Winning At Trial(NITA 2007) and probably contains ideas from of the list of resources appended thereto, too numerous to mention, listed under "Additional Sources of Information" herein.

Additional resources provided by the author

RESOURCES COMER’S LIST OF ADDITIONAL RESOURCES • Ball, David Ball on Damages, The Essential Update, (NITA) • Ball & Keenan, Reptile (Trial Guides) • Bergman, Trial Advocacy in a Nutshell (Thomson/West) • Cotchett, California Courtroom Evidence, (LexisNexis) • Fine, The How-To-Win Trial Manual (5th Ed. Juris Publishing) • Friedman & Malone, Rules of the Road, (Trial Guides) • Friedman, Polarizing the Case (Trial Guides) • Gitchel, Trial Advocacy Basics (NITA) • Hegland, Trial and Clinical Skills in a Nutshell (Thomson/West) • Hermann, The Curmudgeon’s Guide to Practicing Law, (ABA) • Imwinkelried & Leach, California Evidentiary Foundations (Lexis/Nexis) • Jeans, Litigation-3 Volumes (Michie Co.) • Judicial Council of California Civil Jury Instructions (Thomson) • Lisnek, Courtroom Power (PESI Law Publications) • Lubet, Modern Trial Advocacy (2nd Ed., NITA) • Lubet, Expert Testimony (NITA) • Lucas & McCoy, The Winning Edge (Lawyers & Judges Publishing) • MacCarthy on Cross Examination (ABA) • Mauet, Trial Techniques (5th Ed. Aspen Law Publishers) • McElhaney, McElhaney’s Litigation (ABA) • McElhaney, McElhaney’s Trial Notebook (ABA) • Morrill, Trial Diplomacy (Court Practice Institute) • Perdue, Who Will Speak for the Victim (State Bar of Texas) • Read, D. Shane, Winning at Trial (NITA) • Sandler & Archibald, Model Witness Examinations (2d. Ed., ABA) • Stern, Trying Cases to Win Series (Wiley Law Publications) ENCYCLOPEDIC REFERENCES • California Practice Guide, Civil Trials and Evidence, (Thomson) • California Practice Guide, Civil Procedure Before Trial, (Thomson)

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