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September 6, 2016

Seven Tips for Preparing Associates for Trial

by WSBA
Two lawyer in a sidebar with a judge
Here are seven tips to help junior associates become effective trial attorneys.

Two lawyer in a sidebar with a judge
A trial is challenging, exhilarating and exhausting. It can also be an excellent opportunity for a junior associate to learn an incredible amount and gain significant experience in a relatively short period of time. With relentless preparation and with active mentorship, a new associate can maximize his or her early trial opportunities and can be a valuable member of a trial team. Here are seven tips for associates to consider as they develop into effective trial attorneys.

  1. Be the knower of details. The associate who knows the most facts and has the greatest understanding of the case’s nuanced details will earn the opportunity to participate in every important strategic decision. This requires preparation: read every deposition transcript and every document identified on the parties’ lists of possible exhibits. Learn the industry at issue in the case in order to appreciate jargon, norms and important players. Knowing the details of what the evidence says (and does not say) at trial will enable you to react quickly to new developments and to impeach unfriendly witnesses.
  2. Develop a clear and compelling story. Notwithstanding the importance of knowing the details, a lawyer who fails to effectively fit them into the big picture will lose the jury’s attention. While learning the facts, brainstorm about the themes of the story your side will want to tell the jury, and ask how each piece of evidence can (or cannot) be used to support those themes at trial. Cut superfluous evidence.
  3. Know how to get evidence admitted. Determine which witnesses will need to be called to authenticate or to explain each potential exhibit. After all, a smoking gun email will be useless if you get to trial and you are unable to get it authenticated and admitted!
  4. Be able to play devil’s advocate. Think about how to attack or discredit your side’s own evidence and witnesses. Considering weaknesses will help you learn: 1) how to lessen their impact (e.g., presenting bad facts to the jury before the opponent can); and 2) when otherwise-useful evidence is outweighed by some negative aspect (in which case it should not be used at all).
  5. Consider jury instructions early. Use jury instructions as a checklist to ensure there is evidence to support every element for which your client carries the burden of proof at trial. Conversely, determine what your opponent has the burden of proving in order to find opportunities to highlight for the jury the elements and evidence they are lacking.
  6. Role-play. Identify your opposing party’s most important witnesses and be able to play that role in mock cross-examinations. There are benefits to practicing in a large conference room. Similarly, by using video to record other practice speaking moments (openings, closings, witness examinations or motion arguments), an associate can better evaluate his or her own facial expressions, posture and voice.
  7. Know the value (and pitfalls) of technology. Video, demonstratives and PowerPoint-type presentations can be used to very powerful effect at trial. But be sure to contact the courtroom clerk or deputy to tour the courtroom’s available technology and then practice using it in order to avoid tech-related delays and gaffes, which annoy jurors and detract from your message.

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