I’m sure there are quite a few of us interested in litigation. I’ve done mock trial and trial advocacy in school. Outside the classroom, I’ve been to a deposition, mediation, watched at least 25 cases, sat second chair on one and first chair on two other cases. **I just can’t get enough of it. I feel like I’m getting a whole semester’s worth of schooling with every case I merely watch. I figured this would be a good place to share courtroom experiences, whether they are mock trial, moot court, trial advocacy or real trial.
One shocking thing for me was how much of the trial was determined before a shred of evidence was so much as offered. You have a pretty damn good idea of where the cases is going after voir dire. After opening arguments, it’s pretty much going where it’s going unless something spectacular happens in trial.
I saw a few exceptional voir dires where the jury just LOVED attorney. They were practically at the point where they were saying, “Oh, I trust you. You can just tell me if he’s guilty or not.” The jury was totally in the guy’s pocket. I don’t see how the other side had a chance to win, and the trial hadn’t even started. It was just that attorney’s personality, conduct and way of wordings things. I firmly believe he could do it with any jury.
I don’t think the juries like the whole used car salesman, “I’m your friend!” approach, though. I’ve never seen it pulled it off well. I think it gives off a vibe that makes them feel like the attorney is trying to sell them on something, and they instantly get defensive and question everything the attorney says.
Another interesting thing was the difference between the things you do for the jury and the court. There are so many little formalities to take care of with the court while questioning a witness (and even in opening/closing statements). The jury just zones out to that crap. It’s fairly hard to keep them on board while you take care of that stuff.
IMO, juries just zone out of testimonies that aren’t interesting and concentrated with very important facts and “ohhh!” stuff. Expert witnesses often go up on the stand and get the juries attention with their crazy credentials, then lose the jury entirely with their inability to give simple answers in simple terms. In civil trials, party witnesses seem to be hard to control. It’s like they are arguing to the other party, not the jury. I will be telling all my clients ad nauseum- this is your chance to explain your side to the JURY, not argue with the guy you’re suing/getting sued by.
On the other hand, juries pay very close attention to video tapes. I was watching a DWI trial once and there was a video of the defendant in the intox room. He looked perfectly fine minus a small stumble when he said he’s ABCs. The jury allegedly found the guy guilty because they saw the clock in the background and saw it was several hours after the initial arrest. They figured he had several hours to sober up and he should be scared shitless- if he’s still stumbling, even if a tiny bit, he was definitely intoxicated when he was right. Neither the state nor the defense brought that up.
When we practiced closing arguments in trial advocacy, I could have sworn the whole case was in the closing argument. It’ the last word, when the two attorneys put their spin on the whole case. Nope- by that time they have already made up their mind. You’re not going to change their mind. I've been told there are two things you can accomplish:
1) remind them of the law or the burden.E X :Hey, I’m not saying there isn’t evidence against us, but don’t forget that it’s a reasonable doubt standard. If you have any doubt, it has to be a completely UNREASONABLE doubt and here are a few reasons why there should be some doubt. Ex 2: “Remember, it’s the PLAIN MEANING of the contract that rules. You all know what __________ means.”
2) Arm those on your side (if any) with strong arguments so they can sway the other jurors in deliberations. Ex: It’s not contested than he put up 80% of the money. How can it be more likely that an established business man would agree to only 20% of the profits than 80% of the profits? It's certainly more probable that they expected 80% returns.
In a criminal case, I saw an attorney encourage jurors to stick their guns back there, which I thought was a good idea for a misdemeanor because hung jury means mistrial and another 1-2 years of waiting around. Officer's memory comes into question or he might get promoted or transfer or etc. Also, the defendant will prob get a great plea bargain. The state doesn't want to spend any more resources to try a misdemeanor twice. I thought it was a dumb time to use it though, because (IMO) the state had a relatively weak case and most jurors were probably on his side to begin with.
Kinda long, but those are some of my thoughts and experiences.
**Under temporary bar cards that allow you to practice under the supervision of a licensed attorney. Didn’t take the bar yet.
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