It’s interesting that our law school evidence classes teach us the mechanics of the rules of evidence, however, (if my memory serves) we’re not given much guidance on how to decide whether, assuming a question is objectionable, it is a good idea to object during trial. It is true that the rules of evidence have application outside the context of a jury trial, and in fact it can be years before a lawyer actually has to make the decision whether to raise an objection at trial. But the question whether it makes strategic sense to object in the presence of the jury merits some analysis.

I consulted Professor McElhaney and, as expected, he had wisdom to impart. In Litigation, he articulates rules for when to object. I’ll list the first five here.

Rule One: Wait for a Reason

Only object when you have a good reason to object, and this means that “it advances your theory of the case.” Id. at 211. McElhaney reminds us that jurors resent objections. Why? Because they understand the point of an objection is to keep information from them, keep them in the dark. Assuming your objection is sustained, the jury will most likely understand that you have succeeded in an attempt to keep a piece of information from them. It must have been important information, or else why would you have made the effort to object–at least that’s how the jurors will think.

Rule Two; Don’t Object When It Will Help Your Opponent

I’ll confess that applying this second rule, obvious as it seems, may be challenging. This is because I’m not sure it will always be clear how my objection will help my opponent. Professor McElhaney gives two examples. In the first example, your opponent is leading a witness because so much time has passed that her memory has become fuzzy. You could object to the leading questions, but McElhaney points out that leading questions send a message that the witness cannot be trusted to remember properly, so your opponent’s leading questions may not be helping his cause, and the objection, sustained or not, will likely lead your opponent to improve the witness’s credibility by asking fewer leading questions.

In his second example, your opponent is fumbling through trying to lay a foundation for a business record. If you object, it “may help educate him so he will do a better job with other business records that are much more damaging.” Id. at 212. Let him fumble.

Rule Three: Only Object When Your Objection Deserves to be Sustained

The subtle message sent to the jury if you make objections that are overruled is that you are not especially fit to guide them out of the “swamp” of trial. McElhaney is careful, however, not to suggest you limit objections to only those circumstances in which they will be sustained, but rather only those instances in which they deserve to be sustained. “There are times when you simply must make your record, knowing the trial judge will overrule your objection.” Id.

Rule Four: Object Outside The Jury’s Presence If Possible

McElhaney is careful to distinguish outside the jury’s presence, from outside the jury’s hearing. Jurors hate sidebar conferences.

Rule Five: Object Promptly

This also makes sense. But he also gives an example of where an opponent exaggerates or fabrics a fact during his closing argument. He suggests it could make sense to wait, not object, and instead comment upon the fabricated or exaggerated fact during your rebuttal.

One point McElhaney makes really rings true for me on the subject of objecting during trial: “you have a limited good-will account with the judge and jury at the start of the trial. Everything you do in the trial affects that account. You are always making deposits and withdrawals. . . . [A]n objection looks like you are trying to keep something from the judge and jury, so it usually counts as a withdrawal.” Id. at 211.

Every one of us carries a measure of optimism whenever we decide to undertake something. Undoubtedly owing to a cluster of deep-seated personality defects, I find I often see a glass as half empty. I don’t begrudge this aspect of my personality; it tends to make me a conservative investor and a boring gambler.

Most successful plaintiff lawyers I’ve worked with, however, seem more often than not to be glass half-full types. Let me clarify what I mean for the benefit of any readers who aren’t familiar with the American system of jurisprudence. I’m referring specifically to lawyers who agree to take on clients and cases on a contingency basis. Under these circumstances, a lawyer agrees to represent a client or clients in a lawsuit without any fees unless and until there is some recovery, by settlement or judgment. There is always an investment of the lawyer’s time and often the lawyer also agrees to advance the costs of litigation against the chance of recovery. If the case or claim is successful, the lawyer is reimbursed the costs she advanced and she also receives an agreed upon percentage of the recovery.

It’s not difficult to see how one would have to be something of an optimist to take any case on contingency, though a better quality case against a deeper-pocketed defendant tends to reduce the risk. In fact, some of the wealthiest practicing lawyers earned their fortunes through contingency fee litigation.

Not long ago, I handled a case against someone so optimistic about his client’s case that he was literally “drunk” on his own Kool Aid. So drunk, in fact, that he didn’t sober up until after he lost the trial and his client hired another lawyer to represent her in her appeal. It wasn’t that his client had a drop dead loser of a case. The case actually had some sexy facts; the kind of facts that can make jurors rock back and forth in their seats with interest. Things could have gone the other way, and he could have won. But it wasn’t that good of a case, and he could have and should have tried earnestly to settle before rolling the dice with the jury. He was just too buzzed to see the glaring weaknesses or put a realistic settlement value on the case. He never got within a range in which it made the remotest sense for my clients to make any serious offer–so they didn’t.

I recognize the counter-argument can seem compelling. After all, some of the biggest jury verdicts came out of situations in which David took on Goliath and prevailed against all odds. And I’ve already admitted I tend to see the glass a half empty. But what set my “drunkard” opponent apart from another, wiser lawyer was his steadfast refusal to give any weight to the opinions of two separate neutrals (a mediator he had selected and a USDC Magistrate Judge sitting as a settlement officer), who both told him he was being ridiculous in his expectations and wrong on a pretty important issue of the law.

Is it possible to be a “sober” optimist? Sure. One way is to pay attention if multiple neutrals (including one you selected) suggest you’re off the mark. Of course, neutrals may not always be truly neutral, even when you’re paying them to (i.e., when they’re leaning on you in a mediation). Another approach is to submit your facts and arguments, including what you expect the other side will say, to a mock jury–even a cheap one like I described here. I’ve also known lots of lawyers (even really skilled ones) who will ask every colleague they know what they think about a set of facts, just to see if they’re missing something. There’s nothing wrong with this, as long as you don’t inadvertently waive the attorney-client privilege.

One final thought: being a “drunk” optimist is fine: (1) as long as you’re gambling only with your own time or money; or (2) just like elective surgery, if you fully inform the client of all circumstances, including the risks (or likelihood) of walking away with nothing, and the client understands and is just as eager to roll the dice, then by all means roll the dice.

Ok, I realize I’m a little late to the party, as Sargon Enterprises, Inc. v. Univ. of Southern Cal. (212 DJDAR 15846) was issued at the end of November, 2012. But, better late than never, right?

Practitioners who try cases in both Federal District courts and California state courts are all too aware of the schism that has existed between the courts for almost two decades on the question of admissibility of expert opinion. California has long adhered to a line of authorities tracing back to 1923, when Frye v. United States (293 F. 1013 (D.C. Cir.)) was decided. The Frye test, also known as the “general acceptance” test held that a new scientific technique or methodology was inadmissible unless and until the proponent of the evidence established that the technique or methodology had attained “general acceptance” in the relevant field. The California Supreme Court adopted the Frye test in 1976. (People v. Kelly, 17 Cal.3d 24, 32.)

Since the 1993 decision of Daubert v. Merrell Dow Pharmaceuticals, Inc. (509 U.S. 579), federal courts have applied a different standard. Under the Daubert rule, the trial court’s role is to act as a “gatekeeper” to ensure expert testimony that is admitted is reliable based on certain factors, including whether the opinion was being developed solely for purposes of litigation, whether the opinion or methodology had been independently tested in the scientific community and the potential for error.

The schism between federal and California courts continued until the California Supreme Court’s recent pronouncement, in Sargon Enterprises, that “the trial court has the duty to act as a gatekeeper to exclude speculative expert testimony.” The evidence at issue in Sargon was proposed testimony of a damages expert on lost profits suffered by a dental implant inventor who claimed the University of Southern California School of Dentistry had botched a clinical trial of its invention. In holding that the trial court had properly excluded the lost profits opinions, the California Supreme Court said:

“Under [California] Evidence Code section 801, the trial court acts as a gatekeeper to exclude speculative or irrelevant expert opinion. As we recently explained, [t]he expert’s opinion may not be based on ‘assumptions of fact without evidence support, or on speculative or conjectural matters . . . Exclusion of expert opinions that rest on guess, surmise or conjecture is an inherent corollary to the foundational predicate for admission of the expert testimony: will the testimony assist the trier of fact to evaluate the issues it must decide?”

The California Supreme Court did caution trial courts, however, that their analysis must focus on methodology, not on conclusions. It said: “The trial court’s gatekeeping role does not involve choosing between competing expert opinions.” Referring to the U.S. Supreme Court’s opinion in Daubert, it said, “The high court warned that the gatekeeper’s focus must be solely on principles and methodology, not on the conclusions that they generate.”

I’ve discussed here and here the wonderful primer on trial advocacy Lee Horton gifted to me before he retired. In his discussion on opening statements, he says this:

“In making our opening statement, don’t try to be something you are not. While it helps, you do not have to be a great orator to give an effective opening statement. Practice giving your opening statement until you can closely track your written statement with only a few strategic notes. Emphasize the key points with voice inflection and, where appropriate, by the use of an exhibit, reading a small portion of a deposition, showing a video excerpt or drawing a diagram. Most importantly, be sincere and to the point. If the jury finds you make your points and sit down, they will listen to you because they will grow to expect that the points you make will be important.”

I find this to be solid advice for two reasons. First it acknowledges a truth: that many trial lawyers are not naturally gifted speakers. We obviously come to the profession from a variety of backgrounds, some of which might have included training and/or practice in public speaking. But many of us had only minimal training and experience in persuasively presenting information to an audience of 6-12 before we passed the bar.

The good news is you don’t have to have been born with the gifts of a Cicero, a Churchill or a Kennedy to effectively try and win cases. What is important is that you present the information in a way that both engenders trust and permits the audience–the jury–to follow along.

The other reason Horton’s advice is so valuable is because it highlights how we gain trust from jurors by making only the most important points each time we speak. There’s only a limited window that most of us will pay attention and follow a lecture. Don’t squander that window of time with facts that are not crucial to winning your case. As Horton notes, if you follow this practice from the start, the jury will trust you not to waste their time and attention. Again, “they will listen to you because they will grow to expect that the points you make will be important.”

From Day One it is hammered into the head of every lawyer headed for trial: Ask Only Leading Questions. But is this truly gospel?

McElhaney, quoting Mauet and others, doesn’t think so. Not only does the repetition of “Isn’t it true that . . .” become tedious and tiring, it limits the examiner’s ability to expose the witness as a braggart or someone giving well-rehearsed testimony.

He also offers an excellent illustration of a circumstance in which use of non-leading questions can actually produce a more powerful result. He describes a lawyer trying a medical malpractice case involving a brain-damaged newborn. At deposition, the doctor was asked who had the duty in the particular hospital to resuscitate a child who wasn’t breathing: the doctor, nurse, anesthesiologist–who? The doctor responded: “We really don’t have any rules. It’s kind of a grab bag.” (McElhaney, Litigation, 183.)

McElhaney points out that the lawyer could have covered the while point during cross-examination at trial with one leading question:

“Q.  Doctor, you really don’t have any rules for who is in charge of infant resuscitation. It’s kind of a ‘grab bag,’ isn’t it?

A.  I guess so.”  (Id.)

Instead, he advocates a series of questions calculated to make the admission and use of the unfortunate term “grab bag” more powerful.

“Doctor, explain the hospital’s rules about who has the duty to resuscitate a newborn child who is not breathing.

(The doctor tries to sugarcoat it a little.)

A.  Well, of course, it’s a concern that everybody has, so there is not exactly a precise set of guidelines.

Q.  Pardon me, Doctor, but we’ve talked about this before?

A.  Yes.

Q.  And that’s not what you told me then, is it?

A.  No.

Q.  What did you tell me then?

A.  It’s kind of a grab bag.

Q.  A ‘grab bag’?

A.  Yes.” (Id.)

Something McElhaney does not highlight, but I think is hugely important, is that, because of the doctor’s prior deposition testimony, the examiner never lost control of the witness. Regardless how the doctor may have tried to squirm around and potentially offer a new hierarchy of responsibility for resuscitating a child (perhaps he had misspoken in his deposition and, on reflection, concluded that the duty falls to the anesthesiologist), the examiner had crisp prior deposition testimony available to keep the doctor in line.

“Ask only leading questions” is definitely one of the ten commandments of cross-examination, but it’s a rule that can be broken when the examination is handled carefully and where the resulting testimony is expected to be more powerful.

I previously wrote about my experiences with a unique trial lawyer (and war hero) I had the pleasure of working with too briefly before he retired, Lee Horton. Lee gave me a copy of a primer he wrote with the goal of preparing young lawyers to try their first case. In the preface, Lee listed 4 golden rules on which he premised his successful career as a trial lawyer, focusing largely on air-crash cases. I already described the first rule. Here’s the second:

“I always want to know the four or five facts it will take me to win and the corresponding four or five facts it will take me to lose. I try to develop these facts as a Chronology early in the preparation of a case.”

Right off the bat I’m suspicious: isn’t this overly reductive? Sure it’s possible to reduce the “crucial” facts of a dispute arising from an intersection fender-bender or medical malpractice to four or five for each side, but how do you apply this rule to a complex commercial or intellectual property trial?

Some answers to this objection come to mind. First, bifurcation, or separate trials, of certain issues may be an option. In the event of a bifurcated trial, it is not unreasonable to expect that each separately tried issue can be reduced to four or five crucial facts. But I think a better way of looking at this point–and how I imagine Lee himself would answer the objection–requires a fundamental philosophical recognition that we are much more likely to grab and keep the jury’s attention if we do limit the crucial facts to be focused on to merely four or five, regardless whether the case is a fender-bender or Apple v. Samsung. If you’re preparing for trial and you can’t narrow the absolutely critical facts to just four or five, then maybe you should take yourself back to the woodshed and narrow your focus. Finally, if you really are getting ready to try an ultra complex case that cannot reasonably be reduced to four or five crucial facts, then give yourself the luxury of six, or ten, or whatever. The point is to focus.

Now, the issue becomes how to decide which four or five facts are most crucial? In my own practice, I begin with the jury instructions I expect will be given at the conclusion of trial. The elements of the claims and defenses identify the crucial facts. Many will not really be in dispute. But of those that are disputed, it should be possible to identify just a few that, if proven, will win or lose the case.

The other component of Horton’s second rule involves developing the facts “as a chronology.” I recognize that not every story is told chronologically, but I suspect jurors appreciate stories that are. I know I would. Think about it this way: if you knew you were going to be tested at the end of a movie about exactly what happened, would you prefer the movie to be more like Usual Suspects or Gone With The Wind?† Because we experience our lives as a chronology, beginning with birth and culminating with death (or amnesia), most of us can “follow along” better if a series of important events are told to us chronologically.

Lee Horton carries this “rule” of distilling the case to four or five crucial facts, told chronologically, throughout the remainder of his trial primer. At the end, in the chapter devoted to closing argument, he again echoes the rule:

“I have told you in each of these presentations (almost like a broken record) that, prior to trial, I have a well-defined theme that is consistent with the favorable evidence and deals with the unfavorable evidence. This theme is supported by three to five foundational facts. By closing, the jurors have seen me go to great lengths to weave this theme, and its factual support, through every aspect of the trial. A good closing should have a clear beginning, middle and end. The beginning should have impact and briefly recite the theme and the 3 to 5 facts that support it. It should be followed with a story-like presentation of the evidence, with several ‘impact points’ to keep their interest high.” (Emphasis added.)

It’s too bad Lee retired before I got an opportunity to second-chair a trial with him. It would have been a great learning experience, I’m sure.

†For the record, I am a HUGE fan of complex, nonlinear narrative in fiction (Infinite Jest, Alexandria Quartet) and movies (Memento, Pulp Fiction). But I try to leave that passion outside the courtroom.

Perhaps this is unique to California, but I just received another announcement from our attorney service of a courthouse closure. In addition, the notice mentioned yet another court that, although not closing altogether, was being reduced by several newly darkened courtrooms.

As a lawyer who makes his living doing things court-related, I’m both saddened and alarmed to learn that entire courthouses are closing. It’s not that I’m sad or afraid because there are fewer lawsuits being filed (that appears to remain on the rise), but rather that there’s a rapidly shrinking number of venues available to resolve those disputes. It will take longer for cases to get to trial, resulting in fewer trials and less access to justice. It will also make it harder for newer generations of lawyers to get trial experience. (This is obviously a secondary concern, but it is a legitimate concern for many of us.) It’s . . . a . . . disappointing to live in such a perpetually mismanaged state. But I’ve been thinking about ways the judiciary and our profession can cope with this situation and I’ve come up with a couple of ideas.

First, I recently co-authored an article for the ACC Docket which talked about the notion of a “compressed” trial, in which the judge forced the parties to present a case that would normally consume 3 weeks in just 4 days. Much of the article discussed tips and suggestions how to better prepare for this kind of compressed trial format, but I also argued that lawyers and their clients should not just accept such a drastically condensed trial, but actually embrace the concept. After all, if a trial that would normally consume 3 weeks could be reasonably condensed down to 4 days,* that would free up 2 weeks in which two more highly compressed trials could be completed. Imagine completing 3 trials in the time if used to take to do just one.

There was a program introduced in some parts of California for the 1 day jury trial. I don’t know if that was successful or is still being practiced. But that’s not what I’m advocating. If the lawyers can shape a case to be tried in a day or less they will almost always do so on their own. But it takes a pretty heavy-handed judge to force the lawyers and parties to condense a 3 week presentation to something like 4 days. Perhaps more judges should do this. Just a thought.

Another idea involves ADR. If budget cuts are effectively privatizing access to justice in some places, it ought to at least be done right. A major concern centers around the cost of ADR, and I’m not talking about the hourly fees of neutrals. In my experience, the rates of most neutrals are commensurate, or even slightly less, than those of the attorneys appearing before them. But there are costs associated with working with an “institutional” ADR provider that tend to give our clients pause, and with good reason. If law firms are going to be squeezed and forced to do more for less, shouldn’t ADR providers do the same? What about more “solo” ADR providers?

My personal beef with ADR, at least arbitrations, is the inconsistent application of the rules of evidence. Appellate courts keep judges honest, but some arbitrators can and do dispense with evidence rules rather freely, which makes the hearing something of a chaotic free-for-all.

There’s no real silver lining to the issue of darkened courtrooms and closed courthouses. Wherever it occurs, there is reduced access to justice. Perhaps, though, we can collectively brainstorm and come up with constructive ways to manage the problem.

*Whether it was in fact “reasonable” for the judge to compress the trial this aggressively was a subject of some debate, particularly by counsel for the losing side which, fortunately, was not me.

Visiting with my brother over the Thanksgiving holiday, our talk turned to strategy in chess. I confessed that, after about the fourth or fifth move in any game, I’m invariably at a loss for what to do next. My brother pointed out that, like so many games (and sports), the most important factor is to control a particular environment or space within the board.  “Just like you want to control the ‘T’ on a squash court,” he said, “you always want to control the middle of the board in chess.”

Later the same day, in writing another blog post, I was looking at the brilliant primer on trial advocacy prepared by my former partner, Lee Horton. Among his rules in the Preface, I came across the following:

“I attempt to control the case and the environment in which it is presented. The best prepared lawyer is almost always in the best position to control a witness or the flow of evidence. But controlling the courtroom environment is also important. I try to reduce the potential prejudicial variables in a courtroom to as few as possible. Remember, a juror associates everyone in the courtroom associated with you with your client’s claim. Therefore, I only want essential personnel in the courtroom. I also believe that those which do come into the courtroom should be properly schooled on courtroom attire and conduct. This may sound extreme, but I can point to three large cases that were lost because of a lack of consideration of the potential prejudice which can come from an out-of-control courtroom environment. In one case, the jury got mad because of the note-passing between the defense counsel and their client in the audience. In another case, the jury perceived the defense as dishonest because a paralegal frequently found herself in the bathroom with jurors on a break. In the last example, the jurors resented smirks from unknowing associates who came to watch their first trial.”  (Emphasis added.)

Taken in the most literal sense, I’ll admit it’s something of a stretch to analogize the courtroom environment with the center of a chess board, or the “T” in squash. But I think there is something here worth observing. While just controlling the courtroom environment by eliminating harmful distractions isn’t a recipe for automatic victory, the failure to maintain control at any point in the jury’s presence can be fatal.

In a less literal sense, however, there may be something more to the analogy.  After all, controlling the center of the chess board, or the “T” in the squash court, will always put the opponent on the defensive (at least until she over/re-takes the middle of the board or the “T” area of the court). As I’m a lousy squash player, I’m familiar with the feeling of trying to over/re-take the “T”. In other words, I’m familiar with being on the defensive in squash and, as a result, I lose most games.

But I never like the feeling of being on the defensive in a case or in the courtroom (even when representing a defendant). I do know the feeling, though. Naturally it can happen when one party has far better evidence, or when parties are not in comparable financial positions, such that continued or aggressive litigation will financially exhaust one party (or their lawyer) before the other. But these are circumstances beyond any lawyer’s control (at least any defense lawyer–a prosecutor or plaintiff’s lawyer should be able to choose better cases).

More commonly, though, I’ve seen it (or experienced it myself) by coming “late to the party” or being underprepared for an event, like a deposition or a hearing. I so hate that feeling I try never to be on the defensive for the wrong reasons. Like so much else in our profession, it comes down to preparation. By being the better prepared advocate, I control the “T” of the squash court, the middle of the board.

Having the time and inclination to prepare as much as necessary–even over-prepare–really is a great equalizer when it comes to the trial lawyer’s craft. I had the good fortune to practice for a brief time with a distinguished aviation trial lawyer, Lee Horton, who gifted to me a primer he wrote years ago to help young associates learn how to try a case. In the Preface to this primer, he wrote:

“Whatever success I have had as a trial lawyer has been based on the following very simple rules.  These are: 1. Recognizing that there are a lot of people smarter than I am, but only a few that can outwork me.”

I am saving the remaining 3 rules from his primer for future posts. But when I read this first rule I found it to be a comforting revelation. I rarely hold the opinion that I am the smartest guy in any room. But when I remind myself of this first “Horton Rule,” I am empowered with the notion that there is an additional X factor that I alone control: how much time and effort I devote to being the better prepared lawyer in the (court) room.

It can be difficult to know precisely how much preparation is necessary. I find that the first time I do anything I tend to heavily over-prepare. For example, I do not frequently argue before appellate courts. However, a few years back an opponent appealed a favorable ruling I obtained on an anti-SLAPP motion. Fully briefed, it came time for oral argument of the case. I knew that I would want to over-prepare because only then would I feel ready for my first appellate court oral argument. I also knew I didn’t want my client to bear the financial brunt of this need to over-prepare, so I queried a few of my partners who had more appellate experience about how long they would typically spending preparing for such an oral argument. While I ultimately spent about three times as much as my partners suggested, I only billed the client for a third of my time.

We can learn from other disciplines about how much preparation is enough. I studied piano as an adult, and my teacher had attended the Moscow Conservatory and often shared stories from his time learning from one great master or another. He once described how hard he would work to prepare for a solo performance: when he thought he had memorized every nuance of a piece he would set his alarm to go off in the middle of the night. He would wake from a deep sleep, go immediately to the piano and play the piece. Only when he could literally play the piece, including every nuance, while still half asleep did he know he was really ready to perform.

There are multiple ways in which excessive preparation can be a weapon. I have learned from judges and mediators that the party whose counsel is better prepared is always at a distinct advantage in a pretrial mediation or settlement conference. On the other hand, there is no rule that says you have to make your opponent aware how prepared you are. I am a great believer in treating opposing counsel as a mushroom (i.e., keeping them completely in the dark) when it suits my strategy. Sometimes I want the element of surprise that comes from not revealing how prepared I am until it’s too late for them to catch up.

Is there such a thing as over-preparation to the point of diminishing returns? Undoubtedly. The key is to have enough lead time to accommodate the preparation you need without sacrificing your health, including mental health. Like most everyone, I pulled the occasional all-nighter in college and law school. But it was exhausting then, and it would be really exhausting now. Definitely not a good way to start a trial.

Should our trial preparation and presentation be appreciably different when trying a bench trial or arbitration before a single arbitrator? If so, how?

As in most instances, McElhaney offers spectacular guidance on this topic.  Instead of framing the situation as simply a bench or nonjury trial, he reminds us we are still trying a jury trial, it’s just that there is only one juror.  While some of the drama may be diminished, we’re still in the business of seeking a unanimous verdict.  That said, his chapter on Judge Trials from Litigation offers the following advice:

1.  Understand your jury.  “[K]nowing to whom you are talking makes a difference in what you say and how you say it.”  Instead of a half-hour voir dire session, you may have months and months to learn about your judge, including her biases and prejudices.  Make good use of this time.

2.  Win the case before you say anything.  Write a bench brief that really sings, focusing particular attention on the first three pages.  McElhaney quotes Houston lawyer William Pannill: “The first one to explain what the case is really about has a tremendous advantage. The bench brief is an opportunity to do that.”

3.  Don’t relax your presentation just because there’s only one juror.  Use the same care in the order of presentation of witnesses, be concise and concentrate on telling a story.

4.  Preserve objections.  Just because the judge hears evidence before ruling on its admissibility, it remains imperative to preserve the record for appeal.  In fact, objecting isn’t as potentially harmful in bench trials because the judge knows you have to do it.

5.  Finally, even if parts of evidence have been stipulated to, don’t leave these out when arguing the case to the judge or arbitrator.  McElhaney points out that it is sometimes the stipulated facts that “are the best proof of what the case is all about.”

I have previously written about the importance of maintaining a good rapport with courtroom staff.  If you are in a California courtroom, and you notice the clerk and other staff seem less . . . er . . . satisfied with their jobs, I might have an idea why.  The Daily Journal reported Wednesday that “[a]fter years of automatic pay increases for employees at courts across the state, budget cuts have stopped so-called cost-of-living adjustment pay increases at many courts.  Now some court administrators are considering reducing for freezing ‘step increases’ which are part of many employees’ union contracts.”  This is in contrast 3-5 percent annual cost-of-living pay increases in California’s largest courts in the years before the recession started.

I suppose in the pyramid of bad news, a salary freeze ranks below a layoff.  But the courts have already been through layoffs and furloughs and, as the cost of everything from housing to cars to groceries climbs, these employees will begin feeling poorer before too long.  The best of the bunch (i.e., the better educated, organized, more motivated) will likely scout out better employment.  Some who are loyal to a particular judge might also stay.  But a pay freeze isn’t going to make anyone happy and, as Lisa Major, Assistant General Manager of the Orange County Employees Association, pointed out, “[e]liminating step increases in general, if you’re looking at it from a human resources perspective, is never a good idea.”

Brace yourselves, California litigators, our courts are going to seem more and more like a chapter out of Kafka.

I’ve been really fortunate over the years to get the opportunity to observe first-hand how focus groups and mock trials can help trial lawyers refine their strategy and presentation of cases.  They can also be useful in trying to estimate a potential adverse verdict range.  I say “fortunate” because the expense of these exercises generally renders them impractical to all but large institutional clients.  It was only because my firm represented such clients that I was able to get this first-hand experience.

Because I believe mock trials and focus group research are invaluable tools for any lawyer facing an upcoming trial or trying to understand how a real jury will value a case, I don’t think these exercises should only be available to huge businesses with deep pockets.  Instead, I believe there are far less costly alternatives to retaining a first class jury research firm which can produce results that are equally useful.

The first step is to figure out what you’re looking to get out of the exercise and how much you can reasonably spend.  I’m most familiar with the mock trial exercise, so we’ll use that format.  This requires, at a minimum, a suitable space and mock jurors.  “Suitable” space means a space that is sufficient to accommodate your jurors for presentation and deliberation purposes.  If, as I suggest, you simultaneously use two separate mock jury “panels,” it is helpful to have an additional room for the second panel to separately deliberate.  Suitable also means private.  While I always conceal the true identities of the parties, the case presentation, deliberations or post-trial mock juror “download” session should never be held in a public place.  Confidentiality issues aside (you don’t want your opposition to know you did this research), the environment should be as free as possible from unnecessary distractions.

Mock jurors–where to find them?  If you contact a jury research firm they will swear up and down that the exercise cannot be done without careful efforts to proximate the expected composition of your jury.  This may be sound reasoning, but it is unrealistic if you are trying to do the exercise on the cheap.  I’ve participated in several mock trials where we worked instead with a staffing agency to compose the mock jury with folks that approximated, as best as we could, what we thought the jury would look like.  Be prepared, not only to compensate the mock jurors for their time, but also to provide parking.  Thought should be given to providing food, assuming the exercise is going to last more than 3 hours.  It may seem cheaper to release the jurors to eat somewhere else, but valuable (i.e., expensive) time will be lost waiting for one or two stragglers to return from lunch.

If your budget just will not accommodate paying a staffing firm, you’re still not precluded from doing the exercise.  However, you still must find jurors from somewhere, which means employees, family and friends.  This might mean biases will come into play.  While unavoidable, this biases must be “factored into” the results of the research.

If the budget makes it possible, I highly recommend involving a jury consultant.  While some research can be done without one, it will be far less focused and productive.  The jury consultant will provide input on hiring the mock jury pool, draft appropriate questionnaires, frame the analysis, conduct the session(s) and oversee both the deliberations and post-trial debriefing.  Crucially, a good jury consultant will help synthesize the information gleaned from the exercise.  After all, jury research is most valuable if the data gathered is distilled into a set of useful conclusions.

To provide a concrete example of how this might work, my last mock trial  lasted one full day.  The mock jurors, hired through a local staffing service, arrived at our offices at about 10:00 a.m.  They were given a questionnaire not dissimilar from the type of questions a real jury might be asked in voir dire.  My colleague then presented an abbreviated plaintiff’s opening statement and I presented the defendant’s statement.  Another round of questionnaires followed, asking the mock jurors their initial impressions after hearing what the lawyers “expected to show.”  Each side then presented about one-half hour of “evidence.”  This was obviously highly abbreviated, but it included snippets of videotaped deposition testimony, readings from important documents, as well as other demonstrative evidence.  Some evidence was presented simply as “facts to be assumed.”  Another round of questionnaires followed, the jury deliberated for one hour and then we held a debriefing session.  Somewhere in there we excused the mock jurors for a brief lunch break.

Most interesting and informative was the post-trial debriefing session.  Certain important facts had been purposely withheld from presentation during the mock trial.  These were then revealed incrementally.  This allowed us to understand how a particular good or bad fact might impact the jurors’ deliberations.  We made major shifts in our theme and presentation at the actual trial (which we won!) based solely on the feedback we received during the debriefing.

There are countless variations on this approach.  You can eschew the evidence presentation and simply read facts the jurors should assume.  You can present a live, abbreviated examination of one or more witnesses, to see how they will likely be received.  There are situations in which both parties to a dispute conduct a mock trial as an ADR method to aid in settlement negotiations.  The point is that a party is not precluded from doing meaningful pretrial jury research simply because he/she/it cannot afford to spend tens (or hundreds) of thousands of dollars for the exercise.  In fact, here’s a secret: I have it on excellent authority that some of the best trial firms in the country always do pretrial jury research and often do it on the cheap, regardless of the client’s wealth.