As Seen on TV: Keys to Trial Victory
Submitted by the Trials PAC
By: Jeana Goosmann, Goosman Law Firm
I definitely got a kick out of watching Ally McBeal growing up. I’ll even admit that I drew some inspiration from the young female attorney. As a rule, however, I detest legal shows, and most of my colleagues do as well. Why shouldn’t we? The shows conclude what should be an 18-month case in an hour, teaching the public that not only do cases resolve quickly, they always involve an impassioned shouting match and a favorable result. If only. Yet while shows like Suits and Boston Legal might be far-fetched, they do teach some valuable lessons. With these keys to trial victory, you’ll win quicker than you can say “Denny Crane”.
Pretrial: Do Your Homework
Perry Mason was nothing if not resourceful and hardworking. Your trial mindset should begin from the moment you first meet your client. Every detail leading up to opening statements can be just as important as the trial itself. Good lawyers know their clients inside and out. They know what will make him or her a believable witness; they know whether or not he or she will follow-through. Treat every draft, email, piece of discovery, and deposition like it’s going to be used in court. Educate your client on best practices. Eliminate duplicative witnesses and unnecessary documents. Be mindful of your objectives and practice being succinct.
We’ve heard that the best trial attorneys are great storytellers. Plaintiffs tell stories and defendants destroy them and rebuild. The key to being the better storyteller can be as simple as having read the book—absolute clarity on details of the case will make you outshine your opponent.
Opening Statement: Be a Teacher
If we’ve learned one thing from legal TV shows, it’s that being a well-mannered master orator is a key to success in the courtroom. Negativity is likely going to rub jurors and judges the wrong way. Despite how often this advice is spread, attorneys still frequently come off too aggressive or accusatory during opening remarks. If you have a strong case and a strong argument, the jury will come out on your side. The strength of your case falls to the wayside when the only thing the jurors can remember is your bad temper. You’re to serve as a teacher to the jury, allowing them to follow you and to like you.
Direct Examination: Hold Your Tongue
Direct examinations are particularly challenging for people with strong personalities. Viola Davis plays the tenacious Annalise Keating on How to Get Away with Murder. While her famous direct examinations make for good TV, you hear “leading the witness” so frequently as a result of her larger-than-life personality. Much like the opening statement, you need to rein in your lavish details during direct examination and let your client talk. If you dominate a direct examination, your witness won’t have much credibility. The witness has to explain what happened. Allowing your witness to do the majority of the talking requires a lot of dress rehearsal, not all are naturals on the stand. While you can make your questions easy for the person testifying, never make the jury ask why your client had to be reminded of the facts.
Cross Examination: Don’t Grandstand
TV attorney Louis Litt, a favorite from the show Suits, often makes notable blunders during cross examinations, losing control while attempting to belittle a witness. While you’re going to have to establish control over a witness, your goal is to establish facts of the case, not make a witness look unintelligent. The key to dealing with hostile or evasive witnesses is to take charge through asserting facts and aligning them with your theory of the case. As during the opening, you’re playing to your audience. Grandstanding can have a negative effect with the jury. Start with the innocuous, then drive it home with a more pointed finish.
Closing Argument: Have a Theme
The writers of Law & Order begin the script of each episode with a theme. What is the message of the episode? What should viewers learn, and how will the actors be vehicles of that lesson? If there weren’t a theme, viewers would probably grow weary of a show repeatedly showing the same crimes. The same is true of a closing argument. Your closing argument should solidify everything you presented during the case. Appeal to emotions and incorporate quotes, charts, or video to identify consistent statements and messages. You’re giving the jurors everything they need to reach a verdict, so choose your selection wisely. Communicate why this verdict matters.
As lawyers, we gripe about those legal shows our clients cite. (No, we can’t just punch opposing counsel in the face.) We know, however, that we watch along with them, entranced by some of TV’s biggest attorneys. Call it a guilty pleasure, but maybe there is substance to the entertainment. With these trial tips, you’re sure to be a hit.
Jeana Goosmann is the CEO, Founder, and Managing Partner of the Goosmann Law Firm located in Iowa, Nebraska, and South Dakota. Jeana has represented clients on Forbe’s billionaire’s list, Senators in trial, and companies involved in anti-trust class action, toxic tort, business fraud, piercing the corporate veil, adversary proceedings, mass product recall, breach of contract, explosion litigation and business torts. To put Jeana and her team to work for you, contact her today at (712) 226-4000 or GoosmannJ@GoosmannLaw.com.