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Miller & Clay Publish "A New Litigator’s Guide"

Article a top-read piece of "Expert Analyses"
July 2014

Litigation Member Renee Miller and Litigation Associate Cabell Clay were published in Law360 on July 9.  Their article, “A New Litigator’s Guide – Top 5 Tips for Court Prep,” was Law360’s top-read piece of “Expert Analyses” for the week of July 7.  

Drawing from their experience as assistant district attorneys at the Mecklenburg County District Attorney’s Office, their tips to new litigators include: 1) Know your judge; 2) Understand your witness; 3) Jury selection is critical; 4) Don’t lose sight of the big picture; and 5) Expect the unexpected.  The article text can be seen in its entirety below.

A New Litigator's Guide — Top 5 Tips For Court Prep

As a junior litigator, preparation for your first few hearings and trials can be a daunting and overwhelming experience. To help ease this transition and to provide ample courtroom experience, our firm started an initiative with the local district attorney’s office in which a firm associate temporarily leaves his or her civil practice and is sworn in for six months as an assistant district attorney. We have had the extraordinary opportunity to participate in this program, which helped to build our comfort and skills in the courtroom. Below are our top five basic tips for new litigators preparing for those first few trials.

5. Know Your Judge
Every judge has unique preferences about how her courtroom is run. These preferences range from overall legal viewpoints, demeanor, use of technology, and patience to finer details regarding courtroom protocol, such as procedures for calendar call, how witnesses should be approached, when breaks should take place, or the order that motions will be handled.

When preparing for trial, it is well worth spending a few hours observing court, or at the very least talking to attorneys who frequently practice in front of your judge, to understand your judge’s preferences and personality. This will help you avoid pitfalls that could have been easily avoided. As an example, while assistant district attorneys, we learned the hard way which judges prefer more detailed oral argument and which prefer that counsel get to the point in short order.

Knowing your judge not only makes you appear polished and professional in front of your client and the jury, it allows you to be more comfortable overall and, instead of worrying about frustrating the judge, focus on presenting your case.

4. Understand Your Witness
Even the most polished of professionals may still have some apprehension about testifying in court. Take the time to understand and alleviate your witness’s concerns about testifying or the case itself. We found on numerous occasions that a witness can become overly concerned or distracted by a minor issue, causing them to seem nervous and uncertain, and ultimately weakening the impact of their testimony.

For example, we observed a seasoned police officer have trepidation about testifying regarding a matter that had occurred two years prior. He was distracted by the fear that he may forget a minor detail once on the stand. After learning of his concern, we were able to reassure him that perfect memory of events from years past is not expected and that, if he forgot something, he would likely be able to refresh his recollection from his police report. Once his concern was addressed, the police officer relaxed and was able to provide confident, effective testimony (without even needing to refresh his memory).

Identifying and clarifying these concerns in advance of trial will give you the best opportunity to present a clear and confident witness. If you understand your witness’s weaknesses, you will have a better opportunity to resolve these issues prior to trial or can plan to use strategies at trial to reduce the negative impact.

3. Jury Selection is Critical
Although not entirely within counsel’s control, jury selection is one of the most important aspects of trial. While most of your preparation for trial will be focused on the trial itself, if you select the wrong juror your efforts may be wasted. Voir dire is also your first opportunity to present yourself and your case to the jury.

In preparing for trial, carefully consider the types of questions that will help you assess which jurors are a good fit for your case. Also consider your ideal juror and the backgrounds or life experiences that might make a juror more likely to understand your client’s side of the case. Ultimately, you will have to make split-second judgment calls about each prospective juror, but this type of preparation will help you frame that decision-making.

2. Don’t Lose Sight of the Big Picture
In the weeks leading up to trial, it is easy to get lost in every minute detail of your case. The best advice we received as an assistant district attorney was to create a simple checklist of key facts or concepts that must be presented at trial to win your case. This will force you to break the case down to its most basic elements and put you in a better position to succinctly explain your case to the jury. It also allows you to easily return to the fundamentals of your case if your trial takes an unanticipated turn. As an assistant district attorney prosecuting a DWI charge, for example, it would have been easy to focus on the details of whether the defendant’s behavior suggested he was intoxicated and fail to establish more straightforward, yet required elements, such as the crime occurring on a public street or highway.

After every witness and at the close of your evidence, don’t be afraid to take a moment to refer to your list to ensure that you have covered all key issues.

1. Expect the Unexpected
Be well prepared and have a game plan for trial but be ready, and willing, to depart from it if necessary. In large-scale civil litigation, so often months, if not years, are spent preparing for trial. What each party believes the facts to be has been well established through discovery. Often, outlines for all direct and cross examinations are made and arguments are written out verbatim and fervently practiced again and again.

Given the volume of cases and the nature of the criminal justice system, such detailed preparation is rarely available to assistant district attorneys. It is not uncommon to hear a defendant’s account of the facts for the first time when the defendant or defense witnesses take the stand.

The most effective assistant district attorneys are ready and able to adjust their strategy, questioning and arguments at a moment’s notice. For example, we have seen assistant district attorneys seamlessly proceed with trial and obtain guilty verdicts, despite a key prosecution witness revealing new facts or changing his story on the stand.

While the goal is to prepare for all outcomes, it is important to know the applicable law, including the elements you must establish, and have the confidence and flexibility to adjust your questioning, arguments and strategy when trial inevitably takes unexpected turns.