 |
|
||
| |
MEDIA REVIEWS How to Try a Jury Case By John F. Kimberling In Harris County, most litigation matters are settled before they go to trial, which means that many litigators do not have the opportunity to try cases that often. In this environment, How to Try a Jury Case by John F. Kimberling is a primer for new attorneys and useful reminder for more seasoned attorneys preparing for trial. In this book, the author addresses all stages of the litigation process, from intake to closing argument. For example, the chapter on preparation discusses the initial client meeting and advocates that the attorney should consider not only the ethical issues necessary to enter into an attorney-client relationship, but also the business realities. This is sound advice, considering the evolving landscape of Texas causes of action and damages. In addressing the commencement of trial, the author makes some practical recommendations that remind one of Emily Dickinson’s etiquette training. To make everyone comfortable and to ensure smooth interactions with the court, the attorney should conduct some advance research with court personnel to determine the judge’s preferences for all stages of the trial, including, for example, the length of voir dire, the use of jury questionnaires and demonstrative aides, and how to approach witnesses. As attorneys, we certainly want to avoid any awkward moments in front of the jury, and knowing the court’s procedures will help. In discussing the opening statement, the author explains that an attorney should focus on framing for the jury the evidence that will be presented, with care to be totally honest and not to overstate. Some silver-haired litigators have told me that they believe that cases are won or lost in opening statement, and the author seems to agree, opining that it is a critical part of the case that cannot be overstated. It is also the very beginning of a story thread, or theme, which is sewn throughout every other phase of the trial. Throughout the book, the author likens the trial lawyer to a producer of a show or play. For plaintiffs, the curtain opens and the actors are introduced in-person during direct examination. Just like a movie producer pays careful attention to casting the right actor or actress to each part, in preparing for trial, attorneys must decide through whom to tell the story of the case, to achieve optimal effect. Like any riveting dramatic production, direct examination should be edited so that it is quick, non-repetitive, and tells part of your story. As lawyers, we are immersed in every detail of our cases and are tempted to share all of that knowledge; however, the author recommends that you simplify your case and only present the evidence necessary to achieve two purposes: (1) establish the legal elements of your case; and (2) persuade the jury to return a verdict in favor of your client. It is difficult to sit through direct examination of an opposing witness, knowing that another story is being told. Cross-examination gives the opposing counsel an opportunity to disrupt that other story line, but it has certain risks. The book contains brief sample outlines for cross-examining on impeachment, competence, bias, and prior inconsistent statements. The author handles the topic of expert witnesses from retention through reports and trial testimony. He recommends avoiding experts whose primary occupation is litigation matters, and seeking out local experts or, if none are available, to retain a nationally-known expert to offset any local bias. Before hiring an expert, explain your theory of the case and theme, and make sure he or she is comfortable with it. The book contains useful outlines for direct and cross-examination of experts on qualifications, bias, methodology, and opinions. The book closes, appropriately, with discussing closing argument. Closing argument is the summation of the case, the time when the attorney connects the dots and tells or explains the whole story, and why the jury should decide the case in his or her client’s favor. The author recommends outlining the closing argument before starting the trial, which would certainly simplify this task. The book contains some excerpts from closing arguments that are helpful references. How to Try a Jury Case is recommended for litigation attorneys of all experience levels as a reference and reminder on trial practice from start to finish. Divided into chapters by each phase of a trial, the book contains example outlines that may be directly incorporated into a trial notebook or used to stimulate creativity. Robert Painter is a trial lawyer practicing at Painter Law Firm PLLC, in Houston. He is a member of The Houston Lawyer Editorial Board.
|
