ABA Journal


ABA Journal Podcast

Stand and Deliver: Tips on Trying Your First Case

May 7, 2012, 02:14 pm CDT


Always have a court reporter <b>A N D</b> a tape recorder .

The tape aids in ensuring the accuracy of the transcription .

By Docile Jim Brady - Columbus, Ohio on 2012 05 07, 2:54 pm CDT

Most judges have "local-local" rules about approaching witnesses and entering the well. Unless there's an extraordinary reason, don't ask the judge for permission to do something his/her rules disallow.

By AndytheLawyer on 2012 05 07, 10:09 pm CDT

the last comment about talking to people about your case, in law school they teach thats a big no-no. I've done criminal and civil clinics and that is probably the number one thing that they try and beat into our heads, "Dont even talk to your spouse!" etc.

Is this just one of those things that goes by the wayside when you get into practice and get more experience?

By TJ Georgia on 2012 05 11, 1:14 pm CDT

Why an article on trying your first case questioning law school professors? Why not a panel of lawyers who tried their first case recently and experienced trial lawyers? I tried cases for 30 years and would say:
1. The judge will let you know at the PT conference the rules of etiquette in the courtroom. if s/he does not, then you ask. Then you know what is expected. And don't bill your client for watching someone else's trial and perhaps not long enough to know about the thing that you will do.
2. Counteract unreasonable opposing counsel by telling the judge at PTconference or at start of trial that as a matter of courtesy, when you are going to do something with a witness that you expect opposing counsel will have a cow over, you will raise it before the witness with the judge outside the presence of the jury. For obvious reasons, judges love this and your opponent will be encouraged to do the same, or look bad for not doing it. Otherwise, you never react to provocation, always address opposing counsel respectfully and use small formalities like starting each new session with "May it please the court." It is contagious.
3. If you might miss something write down the topic or even questions. On cross, you put a question on each page with a verbatem copy of the testimony or exhibit you are relying on as impeachment so you can pick up just how the witness is evading for follow-up to force the answer you want. And you actually LISTEN to what the witness says and do not let the witness wander off the specific poiint (without asking the judge to direct the witness to answer, by interrupting "please listen to the question, it was " or objecting if necessary)
4. On cross, you ask questions without knowing the answer if (a) you don't care what the witness says, you are making your argument with the question or (b) you have a trap door awaiting whichever answer the witness gives.
5. Organization is the hardest part of trial and the trick is having a simple system and being vigilant to keep things organized during every court session, and cleaning up in between sessions.

By Cynic on 2012 05 11, 2:18 pm CDT

My law school taught absolutely nothing about trying cases or how do anything relevant to the practice of law. And since the older lawyers have pulled the ladder up behind them and won't train new lawyers (like someone once trained them) it is impossible for a new attorney to get any experience or a job.

By Recent grad on 2012 05 11, 2:38 pm CDT

More jury trials mean more love of country, inviting the public into the inner sanctum of American justice. Keep 'em short. Err on the side of allowing the jury see relevant evidence, even if prejudicial. Tell them why it is prejudicial! Their collective life experience is vastly greater than the judges'. I could of course be forced to make an argument that jury trials are unhealthy for "justice." However, clearly they are healthy for love of country, healthy for patriotism, and if you are going to make sausages, make them efficiently, but don't make them too big to eat.

Short jury trials mean a larger pool of available voters! I've heard California is trying to enforce three hour jury trials. I love it. If there was a guarantee that the jury panel could lose no more than a day from work, you'd have CEOs and the bloated rich shoulder to shoulder with bar tenders and taxi drivers lining up to peer under the skirts of justice.

By Tom Youngjohn on 2012 05 11, 6:33 pm CDT

California Western School of Law in San Diego had mandatory trial practice class over 20 years ago - the down side was lack of organization and presenting to jurors plus court room etiquette. I am not a trial lawyer but facing my second trial in 20 years as Pro Per - any ideas on that one?????

By Marcia Wertenberger, Esq. on 2012 05 11, 6:51 pm CDT

I really enjoyed listening to the podcast.

By Tom Youngjohn on 2012 05 11, 7:36 pm CDT

I really hate listening to podcasts! Maybe it's just that I'm a New Yorker and we don't have time for electric hand dryers or standing still on escalators, let alone listening to someone speak aloud.

So I'm grateful, grateful, grateful that ABA Journal made sure there was a transcript!

I wish prominent college alumni offices, politicians, ministers and social activists would do likewise.
People could read three times as much in the same amount of time; and people like me would retain three times as much of it reading at my own pace than by having to pay consistently uninterrupted attention. These four sides of sheets of paper will be reference material for me going forward ... and I'd encourage all those others, presently chafing at the reality that no one panel talk can be a definitive primer, to start a collection of such pages for combined use as a checklist before each trial.

By Avon on 2012 05 12, 3:29 am CDT

Thank you for the podcast. I think it is very important to always be civil in court. I did litigation in my home country for over 10 years. One of the funniest family cases I had, was when the opposing counsel walked into the courtroom and first instructed me on the rules of civil procedure, without knowing and bothering to ask that I was the opposing counsel, then instructed my clients on the rules of civil procedure, then turned to the judge (who was not wearing uniform at the time) and tried to instruct her on the subject, too. I guess the judge was not as tolerant as I, so she told him to be silent and sit in the corner.

By Anna Gray on 2012 05 12, 7:07 am CDT

My tips:

Study My Cousin Vinny carefully. Go to a different state and apply for pro hac vice. Come to court in a leather jacket, then in a ring master's outfit and then in a conservative off-the-rack suit. Have a cute honey nearby to read all the papers and procedural books. Spend a few nights in jail for contempt to see the prisoner's side. Drive a 60's Cadillac. Make sure your first trial is a murder trial with innocent defendants.

You'll do great.

By Peter C. Lomtevas on 2012 05 12, 1:35 pm CDT

"Mr. Gambini. Mr. Gambini. That was a lucid, intelligent, well-thought-out objection. Overruled." - Fred Gwynn (a.k.a. Hermon Munster): Judge in the movie "My Cousin Vinny" speaking to Joe Pesci

By Hank on 2012 05 15, 11:43 am CDT

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