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Trial Tips: A Summary of the Best Litigation Related Articles of 2013
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Trial Tips: A Summary of the Best Litigation Related Articles of 2013

October 1, 2013 Professional Services Industry Legal Blog

Reading Time: 6 minutes


Thanks to the omnipresence of the internet, there is no shortage of blogs or articles on nearly any and every topic imaginable.  This may seem wonderful, but the problem then becomes not merely locating an article or blog, rather finding a great article or blog.  This can be especially true for attorneys.  This blog post focuses on the Top 11 Litigation Articles from 2013. With a hat tip to the Litigation Consulting Report, The Top 20 Litigation Articles of All Time is also available.

The Top 14 Testimony Tips for Litigators and Expert Witnesses- Depositions and trial testimony present difficult to navigate situations.  This article, mainly for litigators and expert witnesses, provides some great strategies to find relief in these difficult situations.  While the article provides 14 tips, all of the tips can be condensed to three general ideas: 1) be prepared for the “Yes or No” questions; 2) Stick to what you know, and 3) think, do not react.  The article clearly was written with litigation and witnesses in mind, but the tips are applicable to any real-world application.

Witness Preparation: Hit or Myth?- Preparing a witness for trial can be a daunting task but is vital.  Two fundamental approaches to witness preparation exist, surface and subsurface, and while subsurface can be the most difficult it is also the most beneficial.  The surface approach is necessary to build rapport, but the subsurface level allows the attorney and witness to predict, and prepare for, virtually every possibly question.  Choosing any witness, especially an expert witness, is vital to the success of any case.  According to this article about expert witnesses, jurors focus on performance much more than competence.  With regards to expert witnesses, lawyers tend to often overlook the difference between competence and performance.  Despite being extremely qualified, if the expert cannot perform under pressure, the expert may appear witless.  The Jodi Arias case is a recent example of this.  The defense put two expert witnesses on the stand, and both came across extremely uneasy, presented sloppy work, and responding to questions as a personal attack; whereas the prosecution presented experts that were the exact opposite.  While the final result cannot be attested entirely to the expert witnesses, it is a safe presumption that the defense’s experts were not very beneficial.

Portray Your Client As a Hero in 17 Easy Storytelling Steps- Regardless of the performance or competence of the expert witnesses, it is the attorney’s job to represent their client to the best of their ability.  Part of this is portraying the client in the best light possible: most commonly through a story.  The client, according to the article, should be portrayed as a hero.  This is a great thought, but the value of telling a story is to tap into the human need for drama and more importantly emotions since most juries decide on emotions.

10 Things Every Mock Jury Ever Has Said- Having a mock jury is not possible for every case, but having the luxury to utilize one in a big case sure does add value. Human nature is to find out what makes someone “tick.”  What is going on inside their brain for a certain conclusion to be reached?  The statements in the article are not specific to one specific case.  Rather, the mock jury statements have been heard time and time again.  One of the commonly heard jury statements is an obligatory feeling to give relief.  It may come as a shock to some, but jurors often rig their decisions “stating their discomfort and reluctance to send plaintiff home empty-handed.”  A jury is typically not well versed in the legal world, and thanks to TV shows, their view of the legal system is skewed.  To better the chances of success, an attorney should give the jury five things.  Jurors want to like the attorney and their witnesses, and they want to feel good about picking a winner and loser.  It is the attorney’s job to aid this process and not impede it.  Jurors also need to know out of everything they have seen and heard, what is most important.

10 Ways to Spot Your Jury Foreman- A crucial way to get your point across clearly to the jury is to ensure the foreman (or forewoman) understands everything clearly.  How can an attorney know who is most likely the foreman?  There are 10 ways to spot the foreman, and there is a pattern.  While there is no guarantee who will lead the jury, the traits and qualities shine a light on what would otherwise be a guess.  Also, jurors need detailed instructions and not a vague set of suggestions (look at the mock jury article again to emphasize the importance of detailed instructions).  Another way to assist the jury to your desired outcome is through the use of colors. Colors affect every human on an emotional and biological level.  Knowing this and being able to benefit from using colors is an incredibly beneficial asset.

How to Structure Your Next Speech, Opening Statement or Presentation- Speaking to groups is not something most people enjoy or look forward to.  As an attorney, speaking to groups is something that is done almost daily.  This is relatively easy to do when there is time to prepare, but what about off-the-cuff speeches?  Structuring the speech (or opening statement) for an off-the-cuff speech can often be a mystery; until reading this article and applying one of a few simple formulas.  The formulas are either:  belief—action—benefit or why—how—what.  Simply tell the audience a belief, what the audience should do, and the benefit of them doing so.  Then give the speech, and conclude repeating the initial belief—action—benefit statement.  Off-the-cuff speeches and prepared speeches will no longer be challenging, or bore the audience too terribly.  While humor can be beneficial and appropriate at times, is not always appropriate in the court room.  The misuse of humor is not only embarrassing to the attorney and represented client, but could result in a mistrial.  Witnesses should avoid humor, unless absolutely confident doing so will not be detrimental.  Humor, when used properly, can increase the chances the jury likes you.  When used improperly, it is easily perceived as an unreliable way to cover up lack of preparation or even concealing information.

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