Biglaw, In-House Counsel, Litigators

6 Thoughts On Trials, 2 Worth Reading

In-house columnist Mark Herrmann shares insights obtained from trials he has observed.

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Once upon a time, I used to try cases.

Now, as an in-house head of litigation, I sit in the back and watch other people try cases.

Oh, how the mighty have fallen.

But I’ve been collecting thoughts on trials I’ve observed. A few of these things have been said widely, but litigators (even good ones) seem to ignore them. A couple of my other observations are hidden slightly beneath the surface.

First, think about the sequence of your questions. Suppose, on cross-examination, you first ask the adverse expert: “In your entire life, you never worked at a bank, isn’t that right?” The witness says, “Yes; that’s right.”

Then, you start doing the details: “You worked at Institution A, and Institution A wasn’t a bank, right?” You’re likely to draw an “asked and answered” objection to that question, shutting you down in your tracks. The question was in fact asked and answered, because you phrased your original question broadly: “You never worked at a bank . . . .”

But if you simply reverse the sequence, you avoid the objection:

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“You worked at Institution A, and Institution A was not a bank, right?”

“You worked at Institution B, and Institution B was not a bank, right?”

“You worked at Institution C, and Institution C was not a bank, right?”

After you go through every place the expert has worked, it is still not asked and answered to end with: “Indeed, in your entire life, you’ve never worked at a bank, isn’t that right?” (The expert might have worked someplace else, and that last place might have been a bank.)

Pay attention to sequence; that may allow you to wallow in the details at more length. Do things in the right order.

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Second, anyone who thinks about examinations will tell you to avoid questions that create double negatives:

“No one ever told you X?”

“No.”

That’s the way we talk, of course, but it creates an ambiguous record: Did anyone ever tell the witness that, or not?

Remarkably, lawyers — even good ones — ask these questions all the time. Don’t!

Strip the negatives out of your question, or ask the question in a way that avoids ambiguity. You could, for example, ask: “Did anyone ever tell you X?” Or, if that question makes you nervous (because it’s not leading): “No one ever told you X, is that correct?” When the witness answers, “That’s correct,” you’ve avoided ambiguity.

Third, everyone has seen trials on TV. Imitating lawyers on the tube, bad counsel ask: “Tell the ladies and gentlemen of the jury” whatever. That’s bad. It implies that you’re a very smart person, who already knows whatever, and the ignoramuses on the jury have to be educated on that subject. That’s no way to make friends.

Don’t ask witnesses to “tell the ladies and gentlemen of the jury” anything. It’s far better to say: “Please tell us” whatever. You thus place yourself on the same level as the jury, avoiding the implicit condescension.

Third, break up the monotone! I know that you naturally speak at a certain pace and volume. But you can surely get a little faster (or slower) or a little louder (or softer) just a few times during the examination to make it bearable for the jury. Don’t do every examination at the same pace and in exactly the same tone of voice throughout.

Fourth, remember that your witness is not necessarily the most important witness in the case. This is particularly important for the junior member of the trial team, who’ll be examining just a couple of witnesses (to get experience). If you’ve been assigned witnesses who really aren’t very important (in the greater scheme of things), don’t assume those witnesses are important just because you’re doing the examination. A witness who merits a half hour on the stand should not be cross-examined for three hours simply because it’s your opportunity to show off. (The senior member of the trial team should control this, making sure that the outline the junior person is using for the examination is fit for the occasion.)

Fifth, be flexible. I know that you’ve typed up your entire cross-examination in advance, along with citations to the impeachment material that you’ll use if the witness tries to wiggle. But you still have to listen to what’s happening in court. Perhaps the witness will give you an opportunity: “Now that you mention it, I never saw any confidential material in the entire 10 years I worked at the company.”

Don’t blow it.

You could just go on to your next question, because you generally got the answer you wanted.

Or you could seize opportunity when it strikes. Drop your jaw; put your arms out Christ-like; ask with disbelief: “You managed 15 people? You saw all their salary and benefits information? You saw scores of social security numbers of other people? And you never saw any confidential information!?”

Don’t be so caught up in your notes that you miss what’s going on around you.

Sixth, don’t be nasty.

It’s obvious that some practicing lawyers watched Arnie Becker (or someone) on television, and decided that sneering and saying, “Well, I guess the document does speak for itself,” is a good idea.

It’s not.

Be nice. That’s what the jury will notice.

Make your points and sit down. You don’t help your cause by being a jerk.

(On some days, I miss the old Above the Law commenters. Surely, after reading the title of this column, one of them would have asked: “Hey, Mark! Can you tell us again which two were worth reading?”)

Earlier: In-House Versus Law Firm Litigating

Mark Herrmann spent 17 years as a partner at a leading international law firm and is now responsible for litigation and employment matters at a large international company. He is the author of The Curmudgeon’s Guide to Practicing Law and Inside Straight: Advice About Lawyering, In-House And Out, That Only The Internet Could Provide (affiliate links). You can reach him by email at [email protected].

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