For generations of lawyers, trial skills were learned through frequent courtroom appearances. With fewer cases reaching a jury today, junior attorneys must be more intentional about preparing for trial and developing the advocacy skills needed to effectively connect with jurors and present a persuasive case. Here are some tips and tricks I have developed over the course of my career that may help you, too.
Do not be afraid. To be a trial attorney, you have to be fearless. Sometimes that means doing things that are uncomfortable. For instance, while it is generally frowned upon to object during an opposing counsel’s closing argument, in one case I had to do so. My opposing counsel in this particular case tried to take advantage of me because I was young and, he thought, inexperienced. This led him to tell an inappropriate story during his closing argument about how he was speaking with his children about the case the night before closing arguments. I very well could have let this go and let him make inappropriate arguments to the jury. I did not. I successfully objected during his closing arguments, not once, not twice, but three times. All of the objections were sustained. More seasoned attorneys may try to take advantage of your seeming inexperience, and it is important to say internally, “No. I know what I am doing, and you cannot take advantage of me,” then act on this mantra.
Roundtable cases with your colleagues. No matter the value of your case, I always roundtable a case before I try it to verdict, whether it is a small claims matter, an arbitration, or a major jury case. Other individuals will have a fresh perspective and will be able to give you an idea of what arguments will work and what arguments will fail. Even running the general theme of your opening and closing arguments past your colleagues can not only strengthen your arguments but give you a more comfortable sense of your case.
Participate in mock trial programs. To the extent your firm offers a mock trial program, ask to participate. Fortunately or not, fewer cases go to trial than in the past. Junior attorneys are not getting as many repetitions in front of triers of fact as they did just a decade ago. It is important to get the practice where you can. The American Inns of Court runs a National Advocacy Trial Program (NATP) each fall. Apply to this program. I participated in the NATP in 2018, and it was an invaluable experience. I was given the opportunity to receive feedback on my litigation skills in a safe environment.
Prepare your family for your absence. Trying a case is stressful and requires long hours. You will be working late into the evening and on weekends. Tell your loved ones well in advance when you think your trial will take place. You may not be able to be as communicative or present in your personal life. I find that preparing my family for my absence in the normal routine of daily life makes me feel less guilty about being absent, while also setting expectations.
Visit the courtroom. The first time you step into the courtroom should not be the day you give opening arguments. It is essential to have familiarity with your environment. Not all courtrooms are set up the same. Even something as seemingly innocuous as knowing where the bathroom is can help you feel comfortable.
Know the judge’s policies and procedures—and his or her idiosyncrasies. If you are not familiar with the judge before whom you are trying the case, reach out to your colleagues. If you are at a small firm, email a trusted group of individuals who practice in the jurisdiction. Judges can have idiosyncrasies and knowing them before you step into the courtroom can support your success.
Know the exhibits. If you have an exhibit listed on your exhibit list, know what it says. Do not simply rely on summaries by other members of your team. Put your eyes on every document in the case.
Know your trial technician and tell him or her which exhibits you expect to use. Things will go much smoother if your trial technician knows where you plan to go with your exhibits. Review the exhibits together and advise how you want them to be shown to the jury. If you want something highlighted, make sure the trial technician is prepared to highlight the correct portions of the exhibit. I try to provide my trial technician with copies of the exhibits exactly as I want them highlighted so there is no confusion or miscommunication during my presentation. Of course, you may change your mind about what you want to emphasize during the direct or cross-examination of a witness, but to the extent your trial technician is able to quickly bring up the exhibits as you want them, your presentation will go more smoothly.
Trust your gut during jury selection. Every time I pick a jury, I come prepared with a simple numbered table, such as the following:
In this table, I take rough notes that will enable me to make decisions as to whom I want to strike later in the process. In addition to the person’s name and occupation, I try to list out something that will help me to remember the juror. I often include something about what the person is wearing or how their hair is styled because that is how I remember people. Use whatever method will help you to remember each individual juror. This is necessary because you may need to decide very quickly which jurors to strike. Jury selection is inherently subjective. Even if you cannot articulate what makes you want to strike a juror, trust your instincts and do not second guess yourself. For years I thought back to my very first jury trial and whether something would have changed if I had chosen to strike a different juror. Finally, after a number of trials, I have realized that it is imprudent to think that way. I made the decision that I made for a reason, and I was correct to do so. Be confident that you made the right decision and move on.
Every case matters. I received my first opportunity to serve as a first chair in February 2020. Yes, February 2020. I got it in just under the wire. The case was a low-exposure slip and fall, appealed from the Philadelphia Compulsory Arbitration Program. It would have been easy for me to not prepare because it was such a low-exposure case. However, every case matters. It matters to the client, it matters to the carrier, and it should matter to you. Take every case as an important one, no matter the size or value.
Do not let your past mistakes stop you from trying again. It is important not to let your prior mistakes impede your success in the future. I remember the first cross-examination of a witness that I conducted. It was not good. I was cross-examining the husband of the plaintiff as to his loss of consortium claim, and he clearly was not letting me have even a millimeter. I could have let this less-than-stellar performance stop me from moving forward as a litigator, but I did not. I picked myself up and tried again. While I still sometimes recall the pit in my stomach after that first cross-examination, it also makes me smile. I am a better lawyer for having fallen.
Do not forget to pay it forward. As you progress in your career, it is important to remember the opportunities that you received as a young attorney, and to pay it forward to others. I think it is important to take another, more junior attorney to court with you every time you try a case. You would be surprised how many clients will pay for an associate to join you, even on seemingly low-exposure matters. This has the effect of helping you try the case but also helping the next generation to succeed.
Melanie J. Foreman, Esquire, is the attorney hiring chair at Marshall Dennehey, P.C. in Philadelphia, Pennsylvania, and is a shareholder in the firm's Casualty Department, where she defends insured and self-insured entities against claims in state and federal court. She is a past president of the Temple American Inn of Court.