Developing Basic Trial Skills

• Publication year: 2004
• Pages: 33
• Citation: Vol. 33 No. 2 Pg. 33

33 Colo.Law. 33 Colorado Lawyer 2004.

2004, February, Pg. 33. Developing Basic Trial Skills

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33

Vol. 33, No. 2, Pg. 33

The Colorado Lawyer
February 2004
Vol. 33, No. 2 [Page 33]

Specialty Law Columns
The Civil Litigator
Developing Basic Trial Skills
by Michael D. Schag

The Civil Litigator column addresses issues of importance and interest to litigators and trial lawyers practicing in Colorado courts. The Civil Litigator is published six times a year

Michael D. Schag
Column Editor

Richard L. Gabriel of Holme Roberts & Owen llp, Denver - (303) 861-7000, richard.gabriel@hro.com

About The Author

This month's article was written by Michael D. Schag, an attorney with McKenna Long & Aldridge LLP, Denver, Colorado - (303) 634-4000, mschag@mckennalong.com. The author practices in the area of government contracts, serves as a trial advocacy instructor through the Air Force Judge Advocate General School, and is an adjunct professor at Embry-Riddle Aeronautical University, where he teaches courses in aviation, environmental, insurance, and labor law.

This article provides an overview of some basic tenets of trial practice, as well as practical tips aimed at assisting both beginning and more experienced litigators.

Becoming an effective trial lawyer is an art refined through experiencing first hand the trials and tribulations of a courtroom and developing judgment and a personal style in a litigation environment. When the fundamentals of trial practice are mastered, they are fairly easily transferred into the effective handling of cases involving a variety of substantive areas.

Although there is no substitute for actual experience, reading and borrowing ideas from many sources are essential to the continuing development of a trial lawyer. This article provides the background for a broad understanding of trial practice fundamentals. It introduces several basic pointers to help the beginning advocate (attorney) develop effective trial habits and establish a base for more sophisticated developments. Careful attention to each major phase of trial is important.

Developing an Effective Personal Style

The development of an effective personal style should be a primary goal of every advocate. The novice advocate is wise to carefully observe experienced litigators and borrow from their experiences. A litigator's personal style is an amalgamation of the demeanor, technique, and approach borrowed from mentors, colleagues, and adversaries. It also is defined by his or her own ability to imagine. A personal style or approach to litigation requires some self-analysis, as well as the study of human nature in general.

It is necessary to master the fundamentals, including rules of procedure and evidence, before taking risks. With each foray into litigation, experience and confidence will grow. A worthy adversary will find opportunity to outwit and outmaneuver at precisely the point where the beginning litigator becomes complacent or overconfident in his or her abilities. Thus, the inescapable process of "trial and error" will mark the path to an effective personal style. At the same time, it is likely that too much discouragement in the face of adversity will lead to failure. Each bump in the road should be treated as a learning experience, and out of each setback should arise the resolve to do it better the next time. Eventually, a healthy confidence, tempered with discretion, will emerge.

Experienced advocates, knowing that the process of litigation rarely runs as smoothly as it does on television, may develop a healthy degree of self-deprecating behavior. Stumbling, bumbling, stuttering, and making mistakes will occur. When they do, the ability to laugh at oneself may engender empathy and trust from the jurors.

Developing an effective personal style and, therefore, effective advocacy, is an extremely personal endeavor. Implementing advocacy principles within the framework of a personal style will build trust with the fact-finder and improve the likelihood of success. Emulation of admired role models has its place, but each advocate must judge what works and what does not within the framework of his or her own personality. Experienced advocates may disagree over what works in a given situation; therefore, the novice must not become overly frustrated by conflicting advice or direction on how to proceed.

Exercising good judgment in the face of many alternatives, even chaos, is the essence of good lawyering. What works very effectively for one will not work for all. For example, a folksy and amiable approach may engender trust for one litigator, while such a style will appear clumsy and awkward for the next. As a result, the effective advocate constantly studies his or her own nature to determine how to present cases effectively. Within the framework of mastering the fundamentals, the simple notion of "being yourself" will yield the best results.

Conducting Voir Dire

The opening phase of the trial for the jurors is the voir dire. The formal purpose of voir dire is to question jurors to ensure a fair trial by revealing possible challenges for cause1 and making peremptory challenges.2 Although voir dire is not supposed to involve selecting, educating, or advocating to potential jurors,3 experienced advocates often inject issues and theories about the case in voir dire.

In most forums, if the advocate believes particular jurors have, through their responses to the inquiry, exhibited that they cannot give a fair hearing to one of the parties, the advocate may challenge an unlimited number of jurors. In addition, each side may make a limited number of peremptory challenges, thereby excusing jurors for any race or gender-neutral reason.4 Nonetheless, the effective advocate also will use the voir dire process within whatever confines afforded by the judge to begin the process of advocating the case. This can be done through asking questions ostensibly aimed at uncovering challenges.

In the modern era, voir dire is a dying art form. With burgeoning caseloads, the judiciary is always actively seeking ways to effectuate judicial economy. In the context of voir dire, this effort has taken several forms. In most instances, the time now afforded for voir dire questions is severely limited.5 Also, some judges will not allow questions that they perceive to be aimed solely at injecting an advocate's theme and theory of the case, rather than merely endeavoring to uncover possible grounds for challenge. Especially in federal forums, the judge may not permit the advocates to question the jurors at all.6 Sometimes, the judge will conduct the voir dire personally and allow the advocates to submit written questions for the judge to review and implement subject to judicial discretion.

When the advocate is permitted to present voir dire questions, counsel should have three important objectives: (1) create a good first impression with the jurors; (2) ensure a fair trial for the client through pertinent inquiries followed by the exercise of proper challenges; and (3) begin the process of swaying the jurors to the advocate's viewpoint by injecting as much theme and theory as possible. Conducting an effective voir dire has become more difficult in light of the considerations discussed; therefore, many advocates have a tendency to devote insufficient preparation to the activity. This is a mistake, because even limited voir dire presents an opportunity to connect favorably with the jury.

In litigation, what is trite is...