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Bench & Bar of Minnesota is the official publication of the Minnesota State Bar Association.

Things will go wrong: Lessons for young lawyers on trial practice

The email rejecting a final settlement offer may be the most stressful part of any lawsuit. Whether you are the attorney sending it or the one opening your email to see it waiting for you, that email signifies a major change from everyday legal practice. The case is going to trial. What do you do now?

I tried my first jury trial in Hennepin County District Court almost exactly four years after graduating from law school. It was a stressful, humbling, but incredibly educational experience that made me look at the litigation process from a whole new perspective. I have tried smaller and larger cases since that first one, with each teaching me important lessons through mistakes, adjustments, and occasional improvisation. Trials are rarer now than ever before due to their high costs as well as the rise of court-ordered alternative dispute resolution. However, if settlement negotiations have fallen through and you find yourself preparing for your first trial, here are four lessons that may assist you.

1: Be aware of time and place

 For the most part, members of jury venire panels don’t want to be on jury duty. They don’t want to sit in conference rooms or closet-sized hallways for a week while you argue your motions in limine. They especially don’t want to do so the week before Christmas. As I learned the hard way, it is even more important to be aware of time and place if you’re trying a case in a rural venue (where I have had two members of a venire panel discover that they are cousins during voir dire).

Be cognizant of when your trial falls. To the extent you have input in regarding the timing of trial, do not choose dates immediately before holidays. If your trial does end up falling immediately before a holiday, especially Thanksgiving or Christmas, expect an impatient venire panel and plan accordingly.

The second takeaway is to be aware of your venue. If the entire jury pool knows the dispute backward and forwards before you step into the courtroom, your chances of influencing the jury are dismal at best. You will only be putting on a show for people who have already made up their minds. This is a terrifying prospect, as there’s no way to know if that opinion will be in your favor or not. Therefore, from the outset of your case, be cognizant of the fact that you may need to bring a motion for change of venue. A motion to change venue is a valuable tool and you should not be afraid to use it if appropriate.

2: Jury instruction guides (JIGs) are your best friend

The best way to trigger a cardiac arrest prior to trial is to forego looking at the relevant jury instructions until the night before a
pre-trial conference. You’ll see something that looks off, but your experts will not be available to answer questions about whether their opinions gel with the liability elements, your document system will not let you see whether your damage packet meets the relevant instructions, and none of the partners you’ve been working with will answer your emails about whether the deposition testimony you obtained satisfies the verdict director.

Learning from this one is easy: Know your instructions. Know them in discovery. Know them during depositions. Know them when you’re talking to experts and putting together damages. The jury instructions should be the foundation of not just the trial, but everything leading up to it. Preventing this panic is simple: Read your instructions early and often.

3: Assume the tech won’t work

As a millennial, I foolishly started trial practice with the assumptions that technology would always be available and that I would be able to make it work. These assumptions, as I learned quickly, are rarely accurate. AV carts get taken by murder trials down the hall. Projectors become useless because the courtroom lacks space for a screen, and sometimes you can’t get a video to play. Technology meltdowns seem to happen at the worst times and the best solution is to be prepared with paper backups. The best cross-examination that was ever used against me was done with an easel and two blown-up pictures on foam boards.

Have a backup plan. Assume the technology won’t work. You won’t regret it.

4: Throw change-ups

Trial lawyers often have a reputation for being aggressive, fast-talking, and loud. There is a strong temptation, when facing a lawyer with this style, to prove that you too, are a fast-talking bulldog trial lawyer. I fell into this trap early on, and while I thought I was on a roll and was proving my worthiness, eventually the court reporter stopped me because all my words were loudly running together.

Playing this game is tempting, but it’s not the most effective way to practice. Instead, throw change-ups. In baseball, a change-up works because a batter can’t adapt to the change in speed of a pitch coming to the plate. Speaking at trial works the same way. Rather than shout the whole trial, talk politely and reasonably, saving the sturm und drang for the most critical point of an expert cross-examination or the most important point on closing. Batters miss change-ups because they’re different. Juries pay attention to them for exactly the same reason.

Every trial is different and every lawyer will face different issues when trying cases. Hopefully, though, you can take the above lessons to heart and learn from these problems to help make future trials less troublesome. Above all, remember that things are going to go wrong and the best you can do is to learn your lessons along the way.

 

Nick Loyal is an attorney at Stinson Leonard Street LLP specializing in business and commercial litigation and construction law. He lives in downtown Minneapolis with his wife, Jessie.

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