If it’s possible for any living trial (and appellate) lawyer to qualify as a rock star, David Boies unquestionably deserves that title. In the Review section of the Wall Street Journal last weekend, Boies said this about the need to improvise during cross-examination:

“This is jazz; it is not a symphony . . . This is Miles Davis; it’s not Beethoven”

This echoes something I discussed in an earlier post, calling on the writings of Malcolm Gladwell, on the topic of successful spontaneity in the courtroom. In a nutshell, Gladwell writes about similarities between improvisational theatre and armies entering battle and the need for both to meticulously prepare in advance, which frees them to be spontaneous in the moment. Because there’s probably no greater example of a writer’s narcissism than self-quoting, I’m going to quote myself discussing Gladwell. Here goes:

“Gladwell likened the actors’ level of pre- and post-performance effort to the preparation an army or navy undergoes in advance of an actual battle. Soldiers train, practice and even participate in highly elaborate war games to prepare for what they might encounter on the battlefield. Gladwell refers to this preparation as ‘creating the conditions [necessary] for successful spontaneity.’

It occurred to me that creating the conditions necessary for successful spontaneity in the courtroom can be viewed the same way. In other words, while the improvisational actors do not work off of a script, and soldiers cannot anticipate exactly what they will encounter on the battlefield, it is through meticulous preparation in advance of the performance or battle that both the actors and the soldiers are able to successfully respond spontaneously to whatever is thrown their way.

That same level of preparation is necessary in advance of trial in order for the lawyer to successfully respond spontaneously to whatever is thrown his or her way at trial. While most of us will craft an outline for direct or cross-examination, it is only by being thoroughly prepared that we can effectively deal with surprises, such as an unexpected evidentiary ruling, a witness who forgets or gets confused, or a judge who cuts our examination short.”

While the focus of that post was on advance preparation as the key ingredient to successful spontaneity, Boies is advancing a slightly different message. While he echoes several successful trial lawyers I’ve written about on this blog on the need to work hard to prepare for trial (“‘It’s a question of how much they want to win,’ he says of his opponents. ‘Do they want to win more than going to the opera?'”), the main message is the need for rest to maintain the ability to be spontaneous over the course of a lengthy trial. The WSJ article says:

“During a trial, Mr. Boies keeps a disciplined schedule. Though his staff may work through the night, he makes sure he sleeps for eight hours since he’ll be the one in the spotlight. ‘If I don’t do that, over a long period of time I’m not going to be able to do what I need to do in court.’ He says that it’s especially important to be able to improvise during cross-examination, coming up with new questions.”

I want to argue that, for most of us, who are not leading a giant trial “team” for clients with endless budgets, advance preparation is still the answer. This is because you have a choice: you can make it a goal to complete most of your trial preparation before trial begins, or prepare at the last minute, every night. If you’ve sufficiently prepared in advance, it’s more likely you can make it to bed by midnight than if you’ve waited until the night before to prepare your cross. I’m just sayin’.

Perhaps I should say how will you cope “if” rather than “when” your trial technology takes a giant lets you down, but I’m a pessimistic fatalist, or a fatalistic pessimist. Or something.

But the internet is all abuzz about Michael Bay’s meltdown on Monday during a Samsung press conference at the CES 2014 Conference. If you’ve missed the viral video, it’s not really that earth shattering. But, let’s agree that it’s lucky for Bay that he doesn’t have to count on his public speaking skills to earn a paycheck. If you or I were presenting evidence and our computer or Trial Director program went screwy, apologizing and walking off wouldn’t be a realistic option.

But this stuff does happen. And, like a jazz musician, you’ve got to improvise. Even if you are meticulous in your preparation and think you’re prepared for anything, chances are something could happen that will catch you off guard. I’m of the view that, rather than fooling yourself into thinking you’re so well prepared that nothing will surprise you, it’s a better idea to expect that something will go wrong–or at least something unexpected will happen–and prepare yourself up to deal with it. That’s more fun, anyway.

Concededly, one way to reduce the chances your technology will fail you is to rely on it less. Many trial lawyers still use overhead projectors because they’re almost fool-proof. Or they say they use them because they are almost fool-proof, but the real reason is they can’t be bothered to learn Powerpoint or Trial Director. Whatever their reasons, I have no quarrel with going old school, low-tech, if it conveys the message and wins the case. A good trial lawyer with nothing but an easel will do far better than a so-so lawyer with the most advanced technology available.

The problem with resisting technology in trial presentation, though, is that the internet, gaming and effects-driven movies have made people–some of them your potential jurors–almost numb to anything that lacks a wow factor. There’s also the brute fact that some of these technologies really are brilliant and, frankly, should be embraced to the extent they can help lawyers, good and so-so alike, present otherwise dry or complex information in a way that engages jurors.

Regardless whether you embrace technology or remain a caveman lawyer, you need to embrace the unexpected. I’m going to go out on a limb and suggest that, given the fascinating life he’s led, there’s a decent chance Michael Bay could have conjured an extemporaneous presentation that was even more compelling than what was written on the broken teleprompter. But he needed to be prepared for the possibility that the teleprompter (or something else) would let him down.

I like the idea of trying to take a bad situation and turn it to your advantage. If a jury or other audience sees you confronted with a technical malfunction or other problem, it can be more than just an opportunity to let the jury, the judge and your client down. To fail miserably. It’s equally an opportunity to gain credibility and respect because you did not let the mishap derail your presentation. You get bonus points if you find a way to weave genuine humor–not corny or forced–into the situation.

A couple of weeks ago, I sent fellow blogger and trial consultant Rich Matthews an email asking if he would comment on a post I was thinking about writing. It would be called “Avoid These Five Ways Of Alienating The Jury.” I was expecting him to provide a laundry list of “don’t dos” if you want to stay on a jury’s good side, such as wearing a bow tie,† showing up late, interrupting witnesses, etc.

Instead, Rich offered a much shorter list of ways–just two–to give the jury what they want and expect. On reflection, Rich’s list of “dos” made much more sense than my proposed list of “don’ts”. Here’s what Rich said:

“I think jurors want two and only two things from counsel, and get alienated easily when these are violated: help with understanding the material, and not wasting their time. That’s it. As obvious as that might sound, all courtroom lawyers should do a really honest reflection on their own trials and notice how many times they run afoul of either or both of these unconscious demands jurors have. That third witness you put on to say basically the same thing? Wasting jurors’ time, and they will resent you for it. That technical witness who was not understandable to them? Flunked both. A closing argument that didn’t explain [relevant rules, damages, verdict form, whatever] well enough? Didn’t help them with the material. I suggest that as counsel is planning the trial sequence, run everything through that filter; will it help jurors understand the material, and does it waste their time as THEY will judge it? Unless it’s ‘yes’ to the first AND ‘no’ to the second, leave it out. (Bonus hint: the first place to look is your witness list. Most of the time, lawyers would be better served to use fewer witnesses than they do. Wasting time in this manner just frustrates jurors if they don’t perceive each additional witness is adding new information or understanding.)”

Rich’s suggestion that what the jury wants most is help understanding the material echoes a point Professor McElhaney makes in the opening chapter of Litigation, entitled “The Guide.” He writes:

“You are the guide who knows the territory, the one who can be trusted to steer the jury straight throughout the entire trial.

Does it work? Imagine for a moment: Suddenly you find yourself in the middle of an unknown swamp. You don’t know where you are or how you got there. All you know is that somehow you  have to find your way out. You have no compass. There are no roads or trails, no signs or maps, no shadows or guiding stars. As you look around, you see two people, each saying there is only one way out. The problem is, each one is pointing in a different direction.

Which one do you follow–the one who has the suitcase with the collapsible legs, who wants to sell you one of the watches on his wrist; or the one who is pointing out landmarks and is helping you understand the terrain?” (Litigation (ABA 1995), at 4.)

Rich’s point about not offering duplicative testimony which the jurors judge as a waste of their time brings to mind this comment by another notable trial advocacy guru, Professor Thomas Mauet. In his Fundamentals of Trial Techniques, Professor Mauet points out that:

“Whom you call as witnesses to prove your case is frequently not an issue. You simply must call the witnesses you know of to establish a prima facie case, and there is no room for choices. Most of the time, however, you will have choices. . . In deciding to call certain available witnesses, remember the following considerations:

1.  Do not overprove your case. Many lawyers call far too many witnesses, thereby boring the jury or, even worse, creating the impression that the lawyer doesn’t have confidence in her own witnesses. In general, calling a primary witness and one or two corroboration witnesses on any key point is enough. It’s usually best to make your case in chief simple, fast, and then quit while ahead.” (Fundamentals of Trial Techniques (3rd Ed. 1992), at 388-89.)

I think Rich’s approach to giving the jurors what they want–rather than trying to walk on eggshells not to alienate them–is by far the better approach. Thanks, Rich!

†Truth be told, I have no problem with bow ties, and I expect most jurors don’t, either. A bad, porno movie mustache, on the other hand, will not be tolerated (except by jurors with their own bad, porno movie mustaches).

On Wednesday, a 12-member New York jury returned a verdict against Michael Steinberg, a senior portfolio manager with hedge fund SAC Capital Advisors LP, finding him guilty of trading using inside information that allegedly passed through four people before it reached him. An article in today’s Wall Street Journal about the deliberations of the jury forewoman, Demethress Gordon, provides a glimpse into how jurors bring their own experiences to the deliberation process, sometimes filling gaps left open by the trial attorneys.

Ms. Gordon entered the deliberations convinced Steinberg was innocent. The evidence against Steinberg included tips passed to him from his subordinate, an SAC analyst named Jon Horvath, about Dell and Nvidia. Steinberg allegedly placed trades within minutes after receiving the information from Horvath, who was a cooperating witness in the government’s prosecution. Ms. Gordon was initially not convinced by the evidence that Steinberg knew the tips were the fruits of confidential, “inside” information. She rationalized, as the story points out, “he [Steinberg] was the boss and relied on his staff to supply him with information they knew to be proper.”

Following the first day of deliberations, however, Ms. Gordon attended a screenwriting class “that happened to focus on the subtext of characters’ actions.” This made her receptive to an analogy offered, during the second day of deliberations, by another juror “who told her to imagine walking through the door. ‘He told me to go through the door,’ she said. ‘I understood what he meant, without him having to say, ‘Walk to the door. Turn the knob. Step through it.'” It “suddenly clicked. People can understand more than they are told . . . Mr. Steinberg must have known the information he received was based on nonpublic information . . . even if it wasn’t explicitly made clear.” After Ms. Gordon changed her mind and explained her reasoning to the sole remaining hold-out, who agreed, the jury returned a unanimous guilty verdict.

This perfectly illustrates how jurors will sometimes draw from their own outside experiences or intuitions to fill a problematic chasm in the elements of a case (or a defense). While I don’t know more about the evidence either side presented, this suggests to me (1) that the prosecutor did not have or put forth sufficient evidence that Steinberg would have understood, explicitly or implicitly, that the analyst’s tip was inside information (though it is telling that 10 of 12 jurors were apparently ready to convict at the end of the first day of deliberations), and/or (2) Steinberg’s defense attorney did not sufficiently anticipate and exploit this gap in the evidence. Either way, it’s interesting to be a fly on the wall.

Hopefully I won’t ruffle too many feathers with the following pronouncement: appellate law practice is a distinctly different animal from trial or lower court practice and it requires specialized training or experience to do it well.

I know that many litigators advertise to their clients and the world that they can ably handle a writ or appeal. Some can. If you’ve handled appeals in your career, whether through budgetary or logistical necessity, and you’ve had success, perhaps you’ll prove me wrong. But, assuming your client is willing, assuming she can afford it, and assuming you can work effectively, efficiently and cooperatively with an appellate specialist, I want to suggest that your client’s odds of prevailing on appeal will be vastly improved by at least involving an appellate specialist whenever possible.

The remainder of this post proceeds from the premise that it is fiscally and logistically possible to involve an appellate lawyer. A lingering problem arises from the impossibility of knowing, at the outset of a dispute, whether it will result in an appeal and a specialist will ultimately get involved. Certainly some cases are unlikely ever to lead to an appeal; I’m thinking here of disputes which are destined by contract to be decided through binding arbitration. Other cases, by virtue of their issues or parties, are virtually guaranteed to see an appeal–or many; here I’m thinking of a case like Apple v. Samsung. There’s just too much at stake for either party to go gentle into that good night without first exhausting every avenue of appellate review.

I call this a “lingering problem,” but it’s really more of a dilemma. Specifically, what can a litigator do, when it’s unclear if an appellate court will ever be asked to disturb a trial court’s ruling, to improve her client’s chances of success if an appellate issue does later arise?

In answering this dilemma, I solicited input from a true expert. Ben Shatz is a partner at the Manatt firm in Los Angeles, a certified appellate specialist from the state of California, a fellow blogger, a prolific writer and, most importantly, a good guy. What follows is our list of five ways that lower court litigators can make it more likely, if their case ultimately requires appellate review, that their clients will gain the most from hiring an appellate specialist.

1. Involve an appellate lawyer sooner than later. You probably saw this coming, but it’s worth stating. If it is economically feasible, Ben suggests an appellate specialist should become involved early “to help review theories, address key motions, spot potential writ issues, pre-cog anticipated appellate issues, review jury instructions and verdict forms (which are fertile areas for appellate review), and help with post-trial motions (which often preview appellate issues).”

2. Preserve that record. Again, obvious. But in the heat of the battle, my focus as a trial lawyer is almost always on convincing the single robed judge before me, not a panel of appellate justices. Ben suggests that “appellate kibitzing can help make sure points are properly raised and not waived.” So don’t forget to kibitz. And try not to let an impatient trial court judge prevent you from saying all you need to say to make a good record; this sometimes takes fancy footwork, particularly if the judge senses you’re just making a record to use later in seeking to overturn his ruling. (See my earlier post on judges playing games with the record.)

3. Don’t waive notice. Ben reminds us that, “too often, after losing a motion (or anything), trial counsel will meekly waive notice. But formal written notice is very useful in figuring out what happened and when, later down the road. Also, written notice often is the trigger for writ review, so it’s good to have a clear starting date for calendaring.”

4. When in doubt go ahead and order a transcript. This is actually two separate points. First, if you’re in a state like California with a struggling judicial budget, be sure to make sure there’s going to be a court reporter taking down the proceedings at any hearing in which there is even the slightest chance a writ or other review may be sought. This requires both ordering and paying for a court reporter.

The second point comes from Ben: “if you just lost a motion and are thinking about a writ, order a transcript right then; take steps to get a written order; don’t waive notice; ask immediately for a stay (or extension to file a writ, if allowed by the relevant statute).” As you’re probably starting to understand, this fourth point requires you to think about the possibility of appellate review before you actually appear for the hearing. Remembering on the morning of the hearing that you needed to order a reporter will be probably be too late.

5. Maintain clean, organized files. Finally Ben reminds us that “It’s not useful if I’m given papers that are annotated by hand (and thus can’t be used in an appendix).” Remember, too, that your client is hiring an appellate specialist for his or her highly specialized knowledge and skills. These do not include conducting “discovery” through your file to find key documents or exhibits.

So keep these suggestions in mind, even when it’s not yet clear there’s going to be an appeal. And, if there is an appeal, think about calling Ben or another appellate specialist, to assist you in getting it done right.

Here are some ideas, courtesy of Professors McElhaney and Mauet, on effectively cross-examining your opponent’s expert witness at trial.

1. Make Him or Her Your Own Expert. Professor McElhaney suggests you look for places where your opponent’s expert agrees with your theories in the case. For example, if, in a personal injury case, both experts mostly agree on the severity of the damages and future treatment, but differ on causation, focus on where there is agreement. He says:

“Note that the defendant’s own doctor admits that the plaintiff will be subject to sudden seizures for the rest of his life; that this form of epilepsy can only be treated, not cured; and that the plaintiff’s condition can put him out of work as a machinist and means he can never drive again.

If you have a strong case on causation, you may decide it is better to make this witness your own on the issue of damages than to try to beat him down on the subject of cause.” (Litigation (ABA 1995) 165.)

2. Attack His or Her Qualifications. “No matter how well-qualified the witness,” McElhaney reminds us, “there is always a higher level he has not reached.” (Id.) Used subtly, this can also serve to bolster your expert’s credibility if he/she has better credentials.

3. Narrow His or Her Expertise. Professor Mauet  points out that, “[o]ften an expert will appear to be highly qualified, yet his actual expertise and experience are in areas different from those involved in the case. The cross-examination technique is to build up the witness’ real expertise, then show that this particular expertise is not directly applicable to the type of case on trial.” (Fundamentals of Trial Techniques (3rd Ed. 1992) at 266.)

4. Attack His or Her Facts. I see two possibilities here. One is if you can establish an opinion rests on a faulty or controversial factual premise, such as a date, measurement or time. The other, highlighted by McElhaney, capitalizes on the fact the expert did not do factual investigation himself, but is relying instead on the reports of others. He gives an example of an effective examination:

“Q. Doctor, can we agree that your opinion can be no better than the information on which it is based?

A. Well, yes, I guess so.

Q. If the information you have is not accurate, then the opinion would have to suffer too?

A. Of course.

Q. Which is why you would rather gather the information yourself than have to trust some source you have not worked with before?

A. Absolutely.

Q. But you were not given an opportunity to do that in this case?

A. Well, not exactly. No, I wasn’t.” (Litigation, 167.)

5. Vary The Hypothetical. McElhaney explains this approach as follows:

“You are permitted to change the facts around to see at which point they alter the expert’s opinion — depending on whether the question on direct examination originally was asked as a hypothetical.

You can insert facts you feel were left out on direct, or take out facts you feel should not have been included.” (Id.)

Let me go on record here that I view this as an advanced technique, and an opportunity to ruin an otherwise solid cross-examination. Ideally, you would have covered this ground with the witness in a pre-trial deposition, so you know what the answer should be and can hold the witness accountable if he/she strays. Otherwise, an experienced expert might hand you your head on a stick if you are not meticulously prepared.

6. Use The Expert To Bolster Your Own Credibility. Mauet suggest it can be “useful to cross-examine an expert to establish your own expertise in the subject. You can do this by defining technical terms or describing technical procedures and having the expert agree that you have defined or described them correctly. Use a treatise to obtain accurate definitions and descriptions. If this expert disagrees, you can impeach him with the treatises.” (Fundamentals, 267.)

7. Establish His or Her Compensation Bias. Mauet writes: “Inquire into professional fees charged and whether they have already been paid.” But he reminds us to “[k]eep in mind . . . that trials are a two-way street. Your opponent can do to you what you contemplate doing to him. Before pursuing this approach, make sure your own experts are less vulnerable than your opponent’s.” (Id., 266.)

8. Identify Additional Steps The Expert Did not Take. Mauet suggests we “[d]emonstrate that the witness did not do all the things a thorough, careful expert should have done. Demonstrate that a variety of tests could and should have been performed to arrive at a reliable opinion in this case.” (Id., 267-68.)

There. Now go get ’em.

I’ve been reading Malcolm Gladwell’s Blink. Actually, I’ve been listening to the book on CD during my long commutes between Santa Barbara, where I live, and Los Angeles, where I mostly work.

I really like Gladwell, because he seems to dwell in the world of irony. In Blink, he capitalizes on how we often make more accurate decisions quickly, based on less information, than we do if we take more time and are weighed down with more information.

In one part of the book, Gladwell focuses on spontaneity. He discusses the improvisational comedy group, “Mother,” which performed at the Upright Citizens Brigade Theatre in New York city. He points out that, while the actors acted spontaneously on stage, reacting to what other actors said without any prearranged script, they were only able to perform so seamlessly because they spent a great deal of time both practicing and conducting post-performance analysis of each show.

Gladwell likened the actors’ level of pre- and post-performance effort to the preparation an army or navy undergoes in advance of an actual battle. Soldiers train, practice and even participate in highly elaborate war games to prepare for what they might encounter on the battlefield. Gladwell refers to this preparation as “creating the conditions [necessary] for successful spontaneity.”

It occurred to me that creating the conditions necessary for successful spontaneity in the courtroom can be viewed the same way. In other words, while the improvisational actors do not work off of a script, and soldiers cannot anticipate exactly what they will encounter on the battlefield, it is through meticulous preparation in advance of the performance or battle that both the actors and the soldiers are able to successfully respond spontaneously to whatever is thrown their way.

That same level of preparation is necessary in advance of trial in order for the lawyer to successfully respond spontaneously to whatever is thrown his or her way at trial. While most of us will craft an outline for direct or cross-examination, it is only by being thoroughly prepared that we can effectively deal with surprises, such as an unexpected evidentiary ruling, a witness who forgets or gets confused, or a judge who cuts our examination short.

Legendary trial lawyer Edward Bennett Williams took this level of preparation a step further. His preparation included “devil’s advocate research” which prepared him for surprises his opponent might hurl at him during trial. In an interview published in the Winter, 1986 issue of Litigation, he said:

“I believe that a lawyer should always have the devil’s advocate. In my office, the devil’s advocate researches each of our cases as we prepare it, persistently finding the holes and forcing us to prepare specifically against each of them. Whenever I go into court, I have completely prepared both sides of the case.

Some trial lawyers do not want to do this. They say, ‘My opponent is skillful. He will find all the law on his side. I am going to prepare only my side.’ But I don’t like it that way, and I don’t think it can be done that way.

I believe a lawyer must prepare both sides so that he will not be surprised by whatever may be hurled at him. After he is prepared in this way, even if his opponent does come up with some detail that may have escaped him, it cannot be so far from the facts already known that it will completely surprise him or put him at a total disadvantage.” (Litigation, Vol. 12, No. 2 (Winter 1986), p. 37.)

So prepare for trial like you’re taking the stage or walking onto the battlefield.

Being lawyers, many of us suffer from the tendency to believe we can service all of our clients needs, whatever they are and wherever they take us. I think part of the reason is that, as professionals, we naturally like to control everything, and the thought of relinquishing any little bit of control causes anxiety. I suspect another reason has to do with a worry that other lawyers are direct competitors, even if their practices differ geographically or in terms of subject matter.

I hesitate to suggest that we’re worried the other lawyer will do a better job for our client (though they might), but it’s scary to think another firm, even if hired as a partner in a particular case or project, will take the opportunity to aggressively pursue our client, to take it/them away from us permanently.

Yet another concern could arise from a fear that, if we involve another professional and they do a less-than-stellar job or overcharge our client, or both, it will reflect poorly on us. It surely will, on some level, at least if we are involved in selecting and/or hiring the associated professional.

On a purely rational level, we know these concerns shouldn’t prevent us from doing what’s best for our clients. If that means hiring a tax specialist because a deal or case raises issues outside our skill set, it’s generally a no-brainer decision. Similarly, if I’m a litigator licensed only in California and I’m handling a case in, say, Nevada, which requires the involvement of a lawyer who is both licensed and venued in Nevada, even if I am admitted pro hac vice, I won’t let my poaching fears prevent me from doing the right thing.

But what about a borderline case. For example, I most often practice in the Los Angeles area. I know the courts, the procedures and many of the judges in LA, Orange County, Ventura, Santa Barbara (because I actually live in SB), Riverside and San Bernardino. If I am assigned to handle a case in Bakersfield, or Fresno, or even San Diego, should I be thinking about hiring local counsel in those venues?

I want to suggest the answer is yes, I should at least think about whether it makes sense to involve a local counsel in any case that I’m planning to handle that is as far away as Bakersfield is from LA, even if, after I think about it, I conclude it is unnecessary. In other words, it is an issue that should be spotted and resolved just like any other.

I recognize this doesn’t really advance the ball, because it doesn’t provide any guidance when one should, not only consider hiring a local lawyer, but actually do it. Here are some thoughts on this bigger question.

1. Hire local counsel when you have reason to believe you will be “home-towned.” What does this mean? I see “home-towned” as any instance in which your client could suffer prejudice from the fact you are foreign to the jurisdiction. This is not always readily apparent, and could require some impression gathering from colleagues or acquaintances. I’ve long heard, for example, that judges and juries in San Diego do not receive Los Angeles lawyers well. I could speculate forever on the genesis of this (assuming it is true), but I’ve heard it over and over.

Now, this does not mean I think it’s necessary to hire a local San Diego lawyer or firm  every time I have a case pending there. Rather, it is more likely that I would only hire someone local if my case was clearly headed to trial, or if there was some unusual issue that made me think my client would benefit at all from having someone local there with or instead of me. The possible scenarios are endless. It’s a judgment call.

2. Hire local counsel when you’re in a venue that has strange or unfamiliar procedural rules. In California, we are required to comply with the California Code of Civil Procedure, the California Rules of Court, the Local Rules of the county and, often, the judge’s own rules. And we hope none of these conflict. Sometimes we encounter a county or judge with some bizarro rules about how things must be filed or served, or both. I can tell you there is nothing more comforting than being able to pick up the phone and talk to someone who regularly appears in the particular court, before the particular judge.

3. Hire local counsel when it’s otherwise a good idea and you can hire someone whom your judge knows and respects. This can be particularly important if your opposition knows the judge well.

4. Hire local counsel when you expect the entire jury will speak with an accent you don’t have. I’ll admit to occasionally having Southern Drawl Envy. You know what I mean if you’ve ever had to speak at a conference and follow some smooth-talking  storyteller from South Carolina or Georgia or someplace. It can be humbling to realize how utterly ordinary we sound.

5. Hire local counsel when there’s a reason to think some past event or news will cause your client to suffer geographical prejudice. Did your client just shutter a factory in the town where you’re about to start trial, putting hundreds or thousands out of work? You’re going to need to deal with that, and a local perspective will be valuable.

One final word. The verb “hire” as used here doesn’t mean your client needs to break the bank with yet another full-time billing machine. Often, it will suffice to have the local counsel merely available for consultation purposes, or to help pick the jury, or participate in a particular hearing.  The additional investment should be minimal and could pay dividends.

Few of us aspire to be a briefcase carrier when we start law school, but that’s what many of us find ourselves doing when we first pass the bar. At least if we’re lucky. I know everyone might not share this view, but it can be pretty nice to get paid to finish the education you started in law school by carrying the briefcase for a lawyer who’s been trying cases for a while. Not everyone is a good role model just because they’ve got experience but, as I’ve said before, you can learn at least one thing from every lawyer you meet.

One of the first things I learned during my bag carrying apprenticeship was not to forget when you were in trial, or about to start a trial, that jurors, or potential jurors, are literally everywhere around the courthouse.

I learned this the hard way, of course, when I made the mistake of talking loudly about the our motions in limine with the partner as we were walking out of the courtroom. “Shhhh,” he said. I didn’t know at first what he was talking about; it seemed like we were all alone in the hallway, or alone enough, so that I could speak freely. “The walls have ears,” he said. I still didn’t understand until, a few steps later, I noticed the familiar face of one of our prospective jurors, leaning against the wall, reading a dog-eared paperback.

When we got outside, and we were very clearly alone, he said, “Remember when you’re in trial that jurors are literally everywhere. And they hear and see everything.”

I was reminded of this point last week when working with Juryology blogger Rich Matthews on drafting a post about working with jury consultants. Rich pointed out that jurors pay attention to how parties and their lawyers act outside the courtroom. Are you or your client rude or impatient in getting through the security screening process coming into the courthouse? What about in the courthouse cafeteria during lunch? It is all information and they take it into the deliberation room.

I knew about one prominent LA trial lawyer who had done well, and owned a couple of exotic cars, but would only drive his Jeep Grand Cherokee when he was in trial. He felt it was important for jurors who saw him arrive at the courthouse (or leave at the end of the day) to see him driving a sensible, American-made car.

When someone at my firm is in trial, associates are encouraged to come down to watch at least a portion of the proceedings. But they are admonished in advance to (1) dress well, (2) behave with extreme decorum in the courtroom, and (3) do nothing to create the impression they are affiliated with the firm or the client, lest the impression they create is a poor one.

Many litigators, even those who do trial work, have only a hazy idea about how much value a good jury consultant can bring to trial preparation and presentation. I’m here, with my friend, colleague and Juryology blogger Rich Matthews, to change that. In this post I’m going to identify five ways a good jury consultant can improve your chance of winning at trial.

First, though, I want to acknowledge a challenging hurdle in getting a jury consultant involved in any case. Often, our clients hold the view that lawyers have the education, training and experience needed to do quality jury research, in addition to our day job of mastering and presenting the legal issues, so hiring a jury consultant is needlessly duplicative. Rich dispels this view right away. He says:

“Clients make the mistake of thinking lawyers should be experts in jury research, and it’s often true that the lawyer who would like to hire a trial consultant doesn’t know what to say to the client about that. I would say that it’s like hiring any other expert for the case– lawyers are skilled at the law, jury consultants are skilled at social research. They are two different disciplines entirely.”

How can you effectively use a jury consultant on your case? Here are five ways:

1. In The Courtroom During Voir Dire.

I’ve either heard it said, or said it myself, either way it’s true: selecting a jury is the least understood process of a trial. This is because most schools don’t teach it and the only way to learn is by doing it and not only are trials precious commodities these days, but judges frequently take over the function of voir dire. As a consequence, many of us are ill-prepared to do voir dire well.

Jury consultants can help in formulating the right types of questions to sound out potential reasons why your client could benefit from challenging particular jurors. “Lawyers,” Rich says, “tend to have the wrong priorities in voir dire. They prioritize arguing their case over the most important thing in voir dire which is to get jurors talking and responding to each other.”

Even if the process is spread over multiple days, such as selecting a jury for a long cause trial, everything moves pretty fast in voir dire. A good jury consultant can help slow the process, or at least help your trial team sort through the mass of data being generated in this tight time-frame, so that intelligent decisions can be made about the need for specific juror challenges.  As Rich points out, jury consultants are skilled at “tracking all the hundreds of bits of data flying in the courtroom all the time and coalescing that into judgment.”

2. In Developing A Jury Profile Before Trial.

Before anyone enters the courtroom, a jury consultant can help the trial team develop a plan for what kinds of jurors (1) they are likely to encounter in a given venue, and (2) of these, which may come into the case with particular biases that will impede their ability to receive and process evidence fairly (by “fairly” here I naturally mean in a way that is favorable to my client). As Rich says:

“While attorneys are keeping up with developments in the law and managing your cases, the best trial consultants are monitoring all kinds of public opinion data and trends. So trial consultants start out in a much better position to develop a profile for the jury for counsel to follow during jury selection.”

Thus, even if your client is resistant to the cost of having a jury consultant present in the courtroom during voir dire or other crucial parts of the trial, there may still be value in the lesser investment of involving a consultant before trial starts.

3. Working With Focus Groups.

You know those parts of the case which you’re most worried about? When the trier of fact is a panel of jurors, those parts of the case are often not legal issues, but “juror issues.” Rich notes that “easily the best way to assess your case’s juror issues, as distinct from the legal issues,” is to work with a jury consultant and one or more focus groups. “Lawyers,” Rich says, “think like lawyers and focus very closely on the precise laws, whereas jurors are more ‘gestalt’ kind of thinkers and are more interested in a broad kind of justice and morality. This difference in focus will lead lawyers to overestimate the impact of a statute/rule/jury instruction on laypeople. The only way to get on the same plane as laypeople is with a focus group.” Anyone who has done focus group research knows it’s going to yield the most valuable information–useful conclusions–if the research is directed and interpreted by someone with the proper training.

4. Case Evaluation.

Most of us, myself included, tend not to think about involving a jury consultant until after the decision to take a case to trial has been made. Rich feels this is a mistake, since we tend to develop a kind of tunnel vision about the quality of our case or defense, and pass that on to influence our clients. Instead, “it’s imperative  to consider the ‘social zeitgeist,’ or what is happening in the collective social consciousness — as well as understand the predictable places where laypeople will deviate from how lawyers think —  when valuing a case or deciding whether to take it to trial.” Good jury consultants should be able to channel into this and inform your case evaluation.

A bonus to involving the consultant earlier than later is that he or she can help you shape your discovery to fit a theme that is likely to resonate with jurors, as opposed to the more common approach of trying to pigeonhole evidence gathered at random into a theme that is developed for the first time on the eve of trial.

5. Witness Preparation.

A consultant can help prepare a witness for testimony in deposition or a trial in a way that most lawyers cannot. I’m afraid I have to agree with Rich when he says:

“Lawyers have proven woefully inadequate at witness preparation. Most lawyers think that reviewing the facts and saying ‘Just remember to tell the truth’ constitutes good witness preparation. It doesn’t. Imagine a witness who actually has skills at testifying– not just what to say, but how to say it; how not to bait the bear; how to tell his or her story to jurors. It’s so much more than just ‘Here, re-read your deposition transcript and make sure you follow it precisely or else we’re going to be in trouble.’”

Ok, I’m not that bad at witness preparation, since it’s something I’ve long recognized to be crucially important. But yes, Rich, we get the message!

One last word on hiring a jury consultant, devote the time and effort to finding a good one. As Rich says, there are “lots of mediocre consultants flooding the marketplace.”

I’ve previously written about how young lawyers enjoy an undeserved reputation for honesty. It’s a gift. Don’t squander it.

Similarly, when jurors encounter a trial lawyer for the first time, the lawyer’s mere presence in the courtroom says many things before the lawyer opens her mouth. This observation comes from the trusted Professor McElhaney. In a chapter from Litigation (ABA 1995) entitled “The Most Important Witness,” he suggests that a trial lawyer’s presence in the courtroom implicitly says to the jury:

• “I have studied the facts and understand what this dispute is all about. You can trust me to steer you straight.
• I have carefully screened the witnesses. I will only call those who will tell you the truth.
• I know the law that governs this case. Justice is on our side.
• If I introduce evidence, it is because it is important.
• If I leave something out, it is because it is not important.
• And If I attack a witness, it is because he is not telling the truth.” (Id. at 9.)

Of course, just as with a young lawyer’s unearned reputation for honesty, each of the above assumptions can be quickly proven wrong. Witness choice is a perfect example. While you sometimes have no choice but to present a dodgy witness, this should not be undertaken lightly. As Professor McElhaney points out:

“[T]he very act of putting the witness on the stand implies that you are vouching for his credibility. . . . Whom do the jurors blame for a bad witness? Listen closely to the comments clerks and bailiffs hear every day. ‘I wonder where she got that guy?’ ‘Where did he dig him up?’ ‘Can’t he find someone better than that?'” (Id. at 11.)

Another opportunity to prove the jury wrong in their initial positive impression arises from how you organize your evidence presentation, including direct examination of your witnesses. How you conduct the examination, what you leave in and what you leave out can affirm or undermine the assumption that “If I introduce evidence, it is because it is important.” As McElhaney says it:

“A confused, rambling examination suggests a disorganized understanding of the facts. Not only does it fail to tell the story effectively, a poor direct examination is the living picture of a guide who cannot be trusted to lead a jury through the thicket of facts in the case.

Dwelling at length on small points is a little different. At first it suggests that the seemingly insignificant detail will become important later on.

Why? Just putting it in the case says it is worth the jury’s while.

So the first time the fact that took so long to explain turns out to be meaningless, the jury feels cheated. When it happens again, they wonder whether the lawyer is trying to kick sand in their faces or is just inept.” (Id.)

The jurors are your friends, your students and your wards. Don’t kick sand in their faces.

I found a fantastic interview of trial legend Edward Bennett Williams from the Winter, 1986 issue of Litigation which I intend to read and re-read like the Bible.

Among the myriad of topics he discusses was the kind of “team” he works with at trial, which led to a discussion of trying “big document” cases. Many lawyers, even seasoned trial lawyers, tend to make the assumption that the bigger the issues to be decided by the jury, the more witnesses and paper–documents–are needed to prove a party’s case or defense. If an outsider was to simply look at the kind of discovery conducted in any big case, he or she would easily assume that, if the documents were worth seeking in costly discovery, they must have been germane and, ultimately, indispensable to winning.

Williams takes issue with this kind of thinking. He suggests that, in all but the most complex cases, lawyers tend to “multiply documents” unnecessarily. In the end, being unnecessarily document intensive does not further their clients’ interests or bring them closer to victory. Responding to interviewer Priscilla Anne Schwab, Williams says:

“Mr. Williams: I was brought up in a school of practice in which one person tried a case and tried it in toto. Even with some help, in the courtroom there was only one voice. And I like that.

Ms. Schwab: What about a complex case, say, an antitrust action with thousands of pages of documents, hundreds of witnesses. How can you handle that in a courtroom singlehandedly? With total control?

Mr. Williams: My impression of that so-called ‘big document’ case is that 95 percent of the documents are worthless. Just piles of paper to impress the jury. One of the great tragedies of litigation today is these paper wars. The whole profession gains nothing but disrepute when one of these big firms puts 21 lawyers on a case, and they start multiplying documents, paper times paper.

Now obviously in a few cases, the issues are so complex that there are, maybe, thousands of documents. But my experience has been that law firms multiply paper unnecessarily. They make litigation more prolific than necessary. They don’t have an instinct for the jugular. They don’t isolate the major issues of the case and simplify them into comprehensibility. And they engage in massive overkill in discovery.

Ms. Schwab: But there always seems to be a need for more discovery. You say yourself you must uncover every fact, however remotely relevant.

Mr. Williams: True, but discovery today is not used primarily to uncover facts. It’s used to delay, to obfuscate, and, too often, to replace real investigation.” Litigation, Vol. 12, No. 2, Winter 1986, p.30.

As an armchair expert on the topic of laziness, I wonder if the tendency to use excessive discovery rather than going “for the jugular,” as Williams puts it, stems from the fact that isolating “the major issues of the case and simplify[ing] them into comprehensibility” takes really hard work and focused thought. I suspect this is part of it. I suspect the other part is related to the fact that there is big money in putting armies of lawyers on cases and multiplying paper. Cynical me!

Whatever the cause, the end result brings clients no closer to victory. So, even if you feel the need to burn everything to the ground in discovery, remember when it comes time to try the case to isolate the major issues and “simplify them into comprehensibility.”