March 15, 2012
by: Kelley J. Johnson, Attorney
Ouch! Yeah, that title hurts. But, we have all been there. As we all know, jury trials just are not as common as they used to be, and it is not unusual for an experienced litigation associate to not have a jury trial under his or her belt.
My colleague, Jeff Gibson, recently wrote a story about how a young attorney can better understand the process of a trial as a way to get his or her foot into jury trial work. What happens when that day has finally arrived? A partner or senior associate needs your help for an upcoming trial, and approaches you to help. What now? Your first jury trial is staring you in the face? What can you do to help make the trial less nerve wracking?
I want to offer some last minute practical tips that will help any jury trial virgin – whether you are 2nd chair, 3rd chair, or just brought along for extra help.
1. Know that file like the back of your hand. The first chair is going to rely on you to help make the trial run as smoothly as possible. One great way to accomplish this is to assemble the trial book and organize the file yourself. This is hardly the time to be above grunt work. At a minimum, take the time to carefully review the contents in every red well. Nothing is more flustering than trying to find a document while the first chair and the judge is waiting on you.
2. Attend the final pre-trial conference. Hopefully, you are brought into help before this final conference because attending is invaluable. This is your chance to preview the courtroom and get to know the judge’s rules and style. Take a quick sketch of the courtroom. Talk to the bailiff and court reporter. If the judge does not give you the ground rules for how he likes his courtroom run, don’t be afraid to ask the bailiff. It may sound crazy, but you do not want to be called out on the first day of trial for your bottle of water when the judge’s courtroom rule is no outside food or drinks allowed. At the last final pretrial conference I attended, the judge asked us to use surnames only – even for our clients. To have this information before trial was priceless so that we could practice using surnames before the first day of trial. Along these same lines (and I really should not have to say this) but please read the court’s local rules – especially if your trial is in another county. If the judge is local, ask your peers for the judge’s dos and don’ts.
3. Know you audio/visual needs and know the court’s audio/visual capabilities. Laptops, iPads, DVD players, projectors, power cords, extension cords, adapters – even easels. Know what you have and what you need before the first day of trial. Don’t be afraid to call the bailiff or to even take the time to see the court’s equipment in person. If possible, do this before the final pretrial conference so that you can test everything after the final conference and before the first day of trial. And most importantly, know how to work everything.
4. Know your best case law. The briefing may be over, but you would be surprised how many times legal arguments are made either quietly up at the Bench or out of the presence of the jury. Have clean, extra copies of your most important cases for the judge. How helpful after the fine points of a case is argued to be able to give the judge a clean copy of your case to review in chambers.
5. Finally, if you are lucky to be able to call a witness, know the hearsay rule and the hearsay exceptions. Then, practice! Be prepared to explain why your question is not hearsay or be ready to cite hearsay exception to each question for your witness that you have that may be objected to because its hearsay.
Although you may feel you are in unchartered territory, your litigation experience will still kick in to help you. Follow these tips and your first jury trial will be a rewarding experience. Don’t forget to enjoy the moment – you deserve it!