The following “one line lessons” for excellence in advocacy were contributed by members of the national trial advocacy listserv. The submissions are organized topically, with the contributors’ names preceding their contributions.
CASE THEORY
Brett Bayne
Shamelessly stolen from Herb Brooks and the 1984 Miracle on Ice, he reportedly strolled the bench behind the players during the US Soviet semifinal after the US took the lead yelling “PLAY. YOUR. GAME.” The meaning being if you get out of your plan and play their game, you will lose this game.
My final reminder to them is always—Try Your Case.
When a student is worried, what if they do this, or what if they do that? Try Your Case (not theirs).
It’s really just a slightly more eloquent version of “don’t wrestle with a pig in the mud, because the pig likes it”.
Jules Epstein
If you have to eat s@*&, don’t nibble. Confront the bad, admit/acknowledge it, and move on to what the case is really about.
Lou Fasulo
Silence is sometimes your best friend
Gary Gildin:
What one person’s story are you telling?
What was their motive?
What are the stakes?
Steven Lubet
“reverse engineer your final argument.” That will help answer Whaddaya gotta get? (Whaddaya is one word in Chicago.)
“Every fact has two faces.”
Lilys McCoy
Silent witness speaks the loudest. If a party does not call a witness that they could have called an argument opens up about that witness, that their testimony would have been unfavorable to the person who could have called them, but didn’t.
Adam Shlahet
Start with the jury instructions
Timothy Wilton:
My 3 basic rules are:
Keep it simple
use the actual Evidence, not your opinions about it
be Yourself
That is the K-E-Y to good advocacy
CLOSING ARGUMENT
Brandon Draper:
I find the following advice helpful, especially prior to closing: “don’t touch the jurors.”
Adam Sokoloff
And, borrowing from Glengarry Glen Ross, Always Be Closing. One should remain mindful at all times during a trial about how what is happening will impact closing arguments. It’s not just DX and CX that sets up closing, everything, including objections and evidentiary foundations can be weaponized in closing.
Kris Vicenzio
Each witness is just a “piece of the puzzle” and closing argument is when they put the puzzle together for the jury – to remind them they don’t need to prove their entire case with just one witness.
COURTROOM PRESENTATION
David Zlotnick
In your case-in-chief, be a movie director: Set the scene and switch to slo-mo when you draw out the critical action.
CROSS-EXAMINATION
Liz Boals
“Cross doesn’t have to be cross” – to get them out of the mindset of always attacking on cross
Jeffrey Brooks
- Life is so unlike theory. (Admittedly stolen from the novelist Anthony Trollope but I like it.) Just because something’s in the book doesn’t mean it always works out that way in practice.
- Don’t try to out-expert an expert.
- A cross-examination is like an expert assassination. Stab, stab, and then you’re done.
Hon. Tim Brooks
On cross the lawyer tells the story and the witness is a prop.
The “secret” to asking leading questions on Cross . . .is to Not ask “questions.” Instead, make short, declarative, statements of fact that compel agreement by the witness.
Annie Deets:
Tell, don’t ask. I use this one for cross-examination tone and form of question. During the examination, if the student opens up the question or starts using upward inflection, it’s a good, simple prompt.
Thin slice important points (Death by 1000 cuts). Since jurors often attach importance to time spent, ask multiple questions about important points.
Swallow the “so”. When tempted to start a cross-examination question with “so”, don’t. It is likely a conclusion or characterization. Save it for closing argument.
Jules Epstein
No old business – used to critique a student’s first attempt at writing a cross-examination that regurgitated 8 points from direct before getting to the first new point.
Anthony Flores
(1) During trial try not to waive goodbye to your closing argument.
(2) Cross examination is where you get to push the witness down, closing is where you actually get to kick the witness.
Mike Golden
If an opposing witness gives you something you really love, it might be a good idea to then skip the planned part of the cross where you were going to try to destroy their credibility.
Many inaccurate statements by opposing witnesses just need to be left alone. Only impeach when it counts.
Brandi Harden
“So” is question 13. It’s one question too many.
How does this question advance our theory of the case?
John Henry
With students that are too conclusively, usually on cross and close, I tell them “show me, don’t tell me.”
Mariana Hogan:
My favorite for the student who gets stuck on cross trying to get the witness to accept their word rather than rephrasing is the Rolling Stones, “You can’t always get what you want, but if you try sometimes you can get what you need.”
another one I love for cross is, Save your “so’s” for summation.
Kevin Kita
Silence is your friend – used to encourage students to slow down in their delivery; avoid um, ah, ok, etc. fillers; and to use strategic pauses for impact and effect in all material.
When you want to ask a question that begins with “so,” just stop – avoiding the “one question too many” on cross.
Richard Lee
I sometimes say cross is not a killing blow but rather death by a thousand cuts.
I suppose the g rated version is cross is not about hitting home runs but rather getting bunt-singles.
Joe Lester
“Show don’t tell.” Don’t tell me the conclusion the witness is biased show me by asking about what makes them biased (they know them, friends, owe them a favor. etc…)
Steven Lubet
Save a zinger for the end. Or, to quote Cyrano de Bergerac, “To end the refrain, thrust home.”
Lilys McCoy
If you’re confusing, you’re losing. If your presentation of the evidence is confusing, you will lose the attention of the jury and, worse, their willingness to adopt your theory of the case.
No conclusions on cross. If you try to get a witness to adopt a conclusion about the evidence, they will fight you and they may win. This saying underscores the importance of sticking with one-fact-per-question questions on cross examination.
Charles Rose
“don’t snatch defeat from the jaws of victory.” I use it when the student goes too far on a cross, closing, opening. Helps to illustrate that sometimes less is more.
I always tell them to “stick the knife is so cleanly they don’t notice it, but to tap the handle slightly when they’re done.” It may be violent, but it gets the point across.
Grant Rost:
“If the horse is dead, get off it.”
Jennifer Scharf:
Sit down, sit down, sit down (when the student is about to ask what they almost-always-mistakenly think they are going ask a zinger or when they have an unexpected but great answer)
Nancy Schultz
On cross: walk the witness up to the edge of the cliff. Push them over on closing (when they can’t fight back).
Adam Shlahet
After hearing an unfocused cross-examination, I frequently find myself asking the student, “What EXACTLY do you think this witness is lying about?” The answer to that question informs every aspect of a cross.
John Singer
On cross, listen to what the witness says. If the witness unexpectedly gives you a gift, jump on it. Don’t ignore it and just mechanically move on to your next prepared question.
On cross, if a witness gives you an unexpected gift, do you really need anything more from the witness? Following on Robert Sherwin’s comment and my first one-liner, if you get an unexpected gift from a witness on cross are you better off highlighting the gift and finishing your exam on a high point rather than continuing with the remainder of your planned examination and potentially diluting the impact of the gift.
Katherine Singer
I’m still trying to find a less violent image for this, but I tell students that on cross examination you stick the knife. You wait until closing to turn it.
Adam Sokoloff
Cross to the extent you need it for closing. Remember why you are there and what you will accomplish with this cross – you don’t necessarily want to go for/get into everything if it isn’t going to contribute to what you are telling/asking the jury in closing. Get in and get out.
Joanne Van Dyke
Much like Charlie’s “don’t snatch defeat from the jaws of victory,” when a student goes too far on cross, I like to use the phrase, “don’t beat a dead horse.”
Keep
It
Simple
S…
We used to use the acronym KISS, but now leave off the last S.
Kris Vicenzio
On cross I tell students to “take what they give you” when the student starts chasing a “perfect” answer. I usually follow up with, did you get the info you need for close? Then let’s move on.
DIRECT EXAMINATION
Hon. Tim Brooks
On direct the witness tells the story and the lawyer is a prop.
John Henry
It’s not original, but when students struggle asking open ended question on direct, I remind them “Think who, what, where, when, where, why and how.”
Kelly Navarro
direct exam is like a first date. Don’t speak like a lawyer, and it helps to appear interested and charming. Over-puff and you’ll be found out.
Judge Matthew Williams
DO NOT DEPRIVE YOUR WITNESS OF THEIR VOICE. Force yourself to use ONLY true Open Ended Questions, and Looping. This allows the witness to present THEIR experience/truth….and makes it immeasurably easier for your finder of fact to simply follow the witness’ testimony.
David Zlotnick
In your case-in-chief, be a movie director: Set the scene and switch to slo-mo when you draw out the critical action.
HEARSAY
Jules Epstein
Who do you want to cross-examine (credit here to the Scotland training this summer which sent this back with one of our students) and how many people have to be telling the truth as ways to understand hearsay and when an out of court statement meets that definition.
OBJECTIONS AND EVIDENCE
Liz Boals
“Land your plane” – to get them to the point when they argue in circles (i.e., circle the runway)
Mike Golden
When the judge starts to speak, stop talking. Do not finish your sentence, do not finish your word, do not finish your syllable.
When the judge asks you a question, answer the question. Not the one you wish she had asked.
Kevin Kita
Address the rule/basis – a reminder that “I’m simply/merely trying to….” does not belong in a response to an objection.
Jennifer Scharf:
First know when you CAN object, then think about whether you SHOULD object.
Learn to read the judge (or jury) – you might be 100% right on the law or the facts, but if you are bothering the fact finder or decision maker, you’re losing.
“No one cares about how you feel or what you think” (when they start an argument with “I think this is inadmissible” or “I feel this is hearsay”).
Dave Schott
“Treat your objections like silver bullets. Save them for the werewolves, don’t just shoot every hairy guy walking down the street.”
Judge Matthew Williams
TELL ME WHAT YOU WANT ME TO DO! Do it right up front. Don’t wait. Don’t treat your argument like a mystery novel.
OHLBAUM-isms
Liz Lippy
I wanted to chime in and share some of my favorite Eddie Ohlbaum sayings that I will NEVER forget –
“Set the table.” – that was his way of telling us we needed to provide sufficient factual background to the judge so the judge had enough information to make an evidentiary ruling.
“Katy bar the door.” Yes, you read the properly. He constantly said Katy bar the door. I never really understood what he meant by it. But what I gathered by the timing of when he said that is that if our evidence arguments are tight and accurate, then the evidence won’t come in. As a student, I probably should’ve asked for detail or perhaps a definition of the phrase. Sometimes, as his student you just went with it…
Note from Steven Lubet – I don’t know what Eddie meant, but “Katy bar the door” is a southern folk idiom that means “watch out for danger” or “trouble ahead.” I guess it could be a warning to your own side, or an admonition to opposing counsel.
“Ibbity Bobbity Boo” – For anything else. Anything.
PRACTICAL ADVICE
Kellie Casey
use the bathroom before they start- because you never think clearly when you have to go!
Melissa May
A very wise attorney I knew said “never pass a bathroom without going in.”
PROFESSIONALISM AND PRESENTATION
Paige Boorman:
DONT BE A DICK. In mock trial, real trial or life for that matter
Cary Bricker:
“The question you need to ask during trial is never “how am I doing” but rather “how is my client doing with me as their voice?”
Or
“You are not the show. Your client is the show. You are instead the conduit whose role is to present the client’s narrative with persuasion and passion in the courtroom”
We have all seen how empowering it is when students reorient their focus from themselves to their clients/TOC at all phases of trial.
Carlos Concepcion
A good pause could be dramatic without being melodramatic…
Charlie DiSalvo
The best advocacy is real advocacy
Lou Fasulo
No one likes a bully tread carefully…
Silence is sometimes your best friend
Mike Golden
Be yourself, not the “lawyer” version of yourself.
Brandi Harden
Be yourself. Let your personality shine through.
Never let ’em see you sweat. Nobody knows what you wrote.
Liz Lippy
It’s not what you say… it’s how you say it.
Stop trying to be perfect.
Persuasion is NOT performance. If you’re acting, the jury will sniff that out in a heartbeat (we all know that who have tried jury cases, right?)
The judge is always right… even though they’re usually wrong.
Be a chameleon – meaning, adapt to whatever the judge wants
Suparna Malempati:
Focus on the message, not the messenger (you). (For nervous students, I tell them to think about the client and the argument, and not worry about how they look or sound. Once we, as lawyers, focus on the case, we allow ourselves to be true advocates and that is where we find our voice & comfort level.)
Keith Morgan
I agree with the need to convey niceness to the jury. Not that you are soft or weak, but that you are a decent person that they can trust. And I use this Maya Angelou quote to convey this message –
I’ve learned that people will forget what you said, people will forget what you did, but people will never forget how you made them feel.
Erika Storms:
I always tell my students that “it’s never a jury’s failure to understand YOU, it’s YOUR failure to communicate.” This is the foundation we build every skill on before we even start because obviously if the jury doesn’t understand your point, it’s the lawyers failure because it’s their responsibility to make them understand. The more students take it upon themselves to work on clear direct communication the more they won’t blame the jury for “not following them”
Christine Weems
Remember the second you step into a courtroom, you are representing someone else. If the jury doesn’t like you, they can’t take it out on you. They can only take it out on your client.
Judge Matthew Williams
INJECT CHANGE INTO THE ENVIRONMENT As our colleague Steve Wood likes to say: “Human beings have t-rex brains.” When you inject CHANGE into their environment, you keep your jurors and judges interested and engaged.
YOU are at the controls, So…..:
Change PACE
Change VOLUME
Change TONE
Use the caesura (dramatic pause). NOTHING makes people listen more than that heartbeat of silence)
MOVEMENT…with PURPOSE. (Movement signals a change of topic). Avoid random movements as they become the norm…and will put your fact finder to sleep. Avoid “the rumba”, “the salsa”, “the shooting gallery”, and “the duck walk”. Movement (including hand movement) is GOOD. But with PURPOSE.
TIME EQUALS IMPORTANCE: The more we hear about something…. The more important (our dinosaur brains tell us) it must be. If it’s important: DRAW IT OUT. BREAK IT DOWN. USE A VISUAL. Find multiple ways to make sure that the important facts/issues get the TIME they deserve.
First things First…First things LAST!: Primacy and Recency!
Your self-esteem is NOT in your opponent’s job description.
Even if they make you feel bad or engage in personal attacks. DO NOT make it personal.
Timothy Wilton:
My last words to the team as they go into a round are always “Have fun!”
And I always tell them they have to be the nicest, kindest, politest person in the room. I think juries pay a lot of attention to that.