Per prior blogs from my fellow blogger Andy Loud, the Hollywood myths regarding functional operations of criminal and civil trials have been debunked. The trial process on this side of the television and movie screen is often times far from the heart-warming, tear-felt glamour that mass media has led many Americans to believe. Also, trial preparation is commonly more arduous for the lawyer than it is for the client. The trial process from beginning to end is a science in every sense of the word and speaking of words, every single one at trial has an effect. The effects, whether they are negative or positive, are largely determined by a number of variables a good attorney will anticipate. Trial can be broken into two segments: “in” and “out” of the courtroom; no one part is more critical to the outcome. The line of questioning and presentation before a jury and/or the judge is reflective of the hard work and information gathered through the discovery period, voire dire, depositions, and more. Sometimes the trial begins from the minute the individual(s) walk(s) into an attorney’s office, sometimes it does not. But surely, the trial does begin right outside of the courthouse steps—literally. A juror is likely to linger the halls or the surrounding premises of a courthouse, which puts an attorney at center stage from the minute he or she enters the grounds of a courthouse. First impressions are everything.
As aforementioned, while the happenings of out-of-court matters are essential to a verdict, this blog post focuses primarily on the different stages within the courtroom. Below are brief descriptions of the different phases of the trial lawyers’ responsibilities within the courtroom.
Opening: “Let me tell you what really happened.” The opening statement is an attorney’s roadmap description of the cause of action and their promise to the jury of what is to come. The opening is the prime opportunity to introduce to the jury and the judge what “truly” happened. Here is when an attorney introduces the theme and theory of their case. Theme, you ask? The theme operates as a catchy summary of one’s case; the theme usually shifts blame onto the opposing party, or in the defendant’s case, just simply shifts the blame off of themselves: “If the glove doesn’t fit, you must acquit!” The theory of the case is the narrative of what “truly” happened; the series of events the attorney wants everyone in the courtroom to believe. The opening is usually dramatic, sympathetic, and theatrical in a certain sense; it is meant to captivate the jury and allow the attorney to further win the favor of the triers of the fact.
Direct Examination: “Believe me.” This is the opportunity for a witness to relay to the jury whatever information he or she may have, in hopes that the information will further bolster their side of the story. Here, the attorney should become somewhat invisible. The attention of the occupants of the courtroom should be on the witness. The witness, through their testimony, asks the jury to believe them and take their words at face value. Their responses should be somewhat rehearsed and logical in terms of the narrowly tailored questions asked by the attorney. And in an effort not to draw any objections, questions are carefully phrased, beginning with any one of the Ws (who, what, where, when, why, and sometimes how).
Cross Examination: The fun begins. The key to any good cross is a direct, leading question—one after another. . . after another, after another. Cross examination is a testimony that is proffered not by the witness, but by opposing counsel. Here, the spotlight should never leave the attorney posing the questions. Despite the response of the witness, a good attorney will continue forth with his or her line of questioning and scarcely allow any narrative given by the witness to distract him or her from the point the witness intends to prove. The line of questioning while not necessarily in chronological order (done purposely to startle the witness, in a sense), does have some form of order. On cross, several focus points are chosen and subsequent questions are succinctly asked to prove each.
Closing: “Didn’t I tell you this already?” Closing is probably one of the most important parts of the trial. This is the point in the case in which the attorney formulates logical conclusions, drawn from the testimony of the witnesses, the facts, and the evidence produced. Several “aha” moments thrive here. The juror should begin to understand why it is that some questions were asked, why they were shown certain objects, and how the facts really line up—if they were unable to decipher this previously. The attorney summarizes the events of the trial in a way that persuades the jury to believe, or sometimes not, that their burden has been met. The triers of fact are asked to render a verdict of either guilty or not guilty, liable or not liable. This phase of the trial provides the final hoorah for the attorney; the last chance to plead his or her case. If there were never a time when the organization of words counted more, this is it.
Don’t you wish it were this simple? I wish. These brief descriptions are just that, brief and somewhat descriptive. So many variables create the equation of the trial process, including immense dedication and energy. And do not be swayed by this blog to believe that every legal matter is one that “sees the light of a courthouse” or is presented before a jury. As of recent, many litigants have worked dutifully to settle cases before the thought of a trial even begins. Despite this, it is still in the best interest of every attorney to represent their clients with the anticipatory mindset that they will have their day in court. This blog merely serves as a brief overview of the phases an attorney must prepare to encounter in the courtroom. It is the lectures of Justice Starcher and Professor DiSalvo, of course, the great Mauet, practice, practice, practice, and exposure that serve as a sound basis for the victory every attorney hopes to achieve.
