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One of the hardest lessons for many attorneys is the importance of acknowledging weak spots in your case.
Almost every case has problems—sometimes they are analogous to bombs waiting to drop on your case. The key is whether you show them to the jury and simultaneously defuse them, or whether the opposi...
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Pat Fahy

General Discussion  - If you are interested in having razor sharp skills in front of a jury.
Give a jury something they will appreciate so they will listen and provide an easy path for them to understand and be persuaded by your argument.
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Thanks +Pat Fahy
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Mitch Jackson

General Discussion  - 
Do You Know Your Audience? by Elliott Wilcox

One of the first and most important rules of effective advocacy is this: “Know Your Audience.”  Before you walk into any advocacy situation, you should be able to answer three important questions:

1. Who are you speaking to?

2. Who are you trying to persuade?

3. Why?

Often, there are several audiences (not all of whom are physically in the courtroom): The judge, the jury, opposing counsel, your client, the opposing party, the appellate record, the press, yourself, the local bar, the general public, family or friends, your law partners, courtroom observers, etc. 

But which audience will you be addressing?  Which audience do you need to persuade?  Many lawyers make the mistake of not understanding which audience they're supposed to be addressing.  Here are a few guidelines to help you evaluate your audience and ensure that you do your best to persuade them.

Learn as much as you can (ethically) about your audience.  Google them.  Instagram.  Facebook. Pinterest. Pay for an Intelius check. Talk to colleagues.  Read the judge's previous opinions.  Know the appellate court's composition and the direction they've been heading.

Look directly at the person you're trying to persuade.  Don't make the mistake of talking to your notes or talking to your flipchart.  Make direct eye-contact with whoever you need to persuade.  If the eyes are the "window to the soul," you don't want to shut the blinds.

Remember why you're there.  Don't make the mistake of arguing to impress your client, so that it looks like you've put on a “good show.”  You're there to win.  If that means you need to be understated, be understated.  If that means you shouldn't cross-examine a witness, say "No questions."  If that means you need to let your partner handle a witness, sit silently and let him conduct the cross.  At the end of the day, your client doesn't want a show -- they want to win.

Don't argue to the press. When the cameras enter the courtroom, your ego can push aside your common sense. There's nothing wrong with wanting your moment in the spotlight, but don't let it happen at the detriment of your client's wellbeing.  If you need to argue to the judge or the jury, that's who you need to address.  Don't fall into the trap of talking to the cameras or acting larger than life so that it will play well on the evening news.  Keep your eyes and argument focused on the decision-maker in the case. ("Mr. Wilcox, can you speak up?  The TV cameras can't capture what you're saying?"  "With all due respect, your Honor, I don't care -- I'm not talking to them.  I'm talking to these folks in the jury box, and they can hear me just fine.")

Use language that includes everyone in your argument.  For example, I like football analogies...  but not everyone I'm trying to persuade enjoys (or understands) them.  That doesn't mean I completely exclude them from my argument, it just means that I don't exclusively depend upon them.  I find other arguments to include, so that there's something for everyone to use.

Don't make an ASS out of U and ME.  We don't all rely upon the same assumptions, so make sure you understand which assumptions your audience will depend upon when making their decisions.  It's dangerous to assume that your audience relies upon the same assumptions that you do.  Are you assuming that the judge knows all the details and procedural history of the case?  Are you assuming that the jurors know what an “element” is?  Are you assuming they know who the "plaintiff" is?  Don't assume they do.

Envision the conversations they'll have when the case is over.  What groups do your audience members belong to?  How strong an influence do those groups play upon the person's decision making?  Will they face social ostracism if they decide the case a particular way?  After the trial is over, the jurors will talk to their friends and family about what happened.  They'll have to explain their decision.  Envision that discussion, and then imagine what arguments you can you give them  so they can defend their decision.

Know their reasons for deciding.  What needs does your audience have?  A judge wants to reach a fair decision; to be upheld on appeal; to follow the law.  The jurors want to do their duty, to reach the right verdict, and to protect their preconceived thoughts and beliefs.  The audience will change their opinion for their reasons, never for your reasons.  They need to act consistently with their beliefs and attitudes.  They don't want to appear incongruent or intellectually dishonest.  Give them a reason to decide in your client's favor that also upholds their personal belief system, and they'll be more likely to vote for you than if they have to jump through loops of logic to justify their decision.


Elliott Wilcox publishes Trial Tips Newsletter. Sign up today for your free subscription and a copy of his special reports: “How to Successfully Make & Meet Objections” and “The Ten Critical Mistakes Trial Lawyers Make (and how to avoid them)” at
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Mitch Jackson

Opening Statement  - 
I sure do enjoy Harry's jury trial tips. I hope you do too :-)

"Don't share your good facts until your opening" by Harry Plotkin

Some lawyers subscribe to the school of thought that good
lawyers should try to argue their case as early as possible:
during jury selection, or by crafting an aggressively-worded
statement of the case, during a mini-opening if your judge lets
you give one, and even in the jury assembly room, if you were
allowed in there.  And while I agree that lawyers should never
waste a golden opportunity to subtly persuade your jurors, overt
pre-conditioning backfires more often than it helps.

First let me differentiate between "overt pre-conditioning" and
"subtle persuasion" so that we're clear about what I'm
advocating and what I'm cautioning against you doing. When I say
"overt pre-conditioning," what I mean is sharing specific, good
facts about your case with your jurors, and even suggesting or
implying what your good facts are going to be, before your jury
is seated and you give your opening statement.  Overt
pre-conditioning also includes any thinly-veiled "hypothetical"
facts and scenarios that you present to the jury during voir
dire. Your jurors can read between the lines and understand that
you're really feeding them facts about the case.  There is a
world of difference between overt pre-conditioning and "subtle
persuasion," which involves using lines of questioning in voir
dire that get jurors thinking about the eventual issues and
facts that they'll later hear in trial your way, without
actually sharing any specifics or connecting the dots between
their experiences and your facts out loud.  When a lawyer tells
the jury in voir dire "the school district left the students
unsupervised for an hour, does anyone think that's okay?" that
is overt pre-conditioning.  But when a lawyer asks the jury "for
those of you who have young children, what steps do you take to
make sure your child is always safe?" that is subtle

So besides being technically inappropriate in court, what's
wrong with advocating as early as possible and trying to win
over your jurors at the first opportunity?  The answer lies in
the fact that your jurors haven't yet been selected and sworn
yet.  The problem with overt pre-conditioning is that, no matter
how many times you or your judge instructs the jurors that they
haven't heard any facts or evidence until it comes from the
witness stand, 90% of jurors don't differentiate.  Once you've
told them what you say the facts will show, your jurors will be
convinced that they've heard some evidence.  That's why drawing
objections and the wrath of your judge aren't the only reasons
that you shouldn't overtly pre-condition your jurors during jury
selection, or even the best reason.  Losing your best jurors
(likely to cause challenges) is that best reason.

I've seen it countless times during jury selections; once jurors
start believing they know what the facts are, they start
expressing opinions about the facts and merits of the case, not
just the issues involved.  And once they start forming and
expressing opinions during voir dire, it's incredibly easy for
the other side to get them excused for cause.  Essentially, the
better you've pre-conditioned your jurors, the more you've done
the other side's work for them: identified your best jurors, and
brought their biases to the surface.  If only you had waited
until your jurors were seated and sworn to convince them, those
great jurors might still be on your panel.

Now I realize that this advice may seem obvious, but the reality
is that many lawyers don't realize that they're engaging in
dangerous pre-conditioning.  Sometimes the pre-conditioning is
obvious and intentional:  for example, prefacing voir dire
questions with facts about the case simply to get those facts in
front of the jury.  But sometimes the pre-conditioning is
inadvertent, accidental, or meant to be subtle.  So give some
serious thought to whether you've been guilty of doing any of
these things:

Have you ever crafted a "neutral" statement of the case to be
read to the jury that included allegations of facts, not just
your causes of action or defenses?

Have you ever been allowed to give a "mini-opening" to your jury
before voir dire that you tried to make convincing? I've warned
of the dangers of giving a convincing mini-opening before (read
it if you haven't already), but I'll summarize my advice:  the
purpose should be to make it easier to identify your bad jurors
in voir dire by highlighting your bad facts, not your good ones.
Don't try to "win" your mini-opening.  Instead, tell your jurors
what you are alleging without sharing your good facts; instead
of sharing those specifics, tell your jurors "we'll show you
evidence on that" without tipping your hand.  Save it for your
actual opening; you'll be surprised how well jurors respond when
they realize that your case is stronger than they imagined.

Have you ever tried to be subtle and asked jurors about
"hypothetical" scenarios in voir dire that were identical to
what your good facts will be?  Jurors are smart; they know what
you're trying to do, and they are fully aware that you're
telling them actual facts in your case.  Many judges will get
upset and sustain objections to these fact-loaded hypotheticals,
but that obscures the main point:  no matter how you disguise
your facts, your jurors will be convinced they've heard
"evidence" and express pre-judgments if they were moved by it.

Long story short, keep your good facts to yourself until your
opening statement, after your jurors have been selected and
seated.  It's dangerous for both sides, but let me also say that
it's especially dangerous for plaintiff's lawyers, because the
other side gets to go last in voir dire and has the opportunity
to sweep out the jurors you've convinced too strongly. Plaintiff
lawyers have double the reasons not to do it, and defense
counsel should absolutely use it to their advantage when a
plaintiff has gone too far.

Don't worry about losing a golden opportunity to win over your
jurors; your jurors will wait until at least your opening
statement to pass judgment on your case.  They won't expect you
to prove anything before then.  In reality, the only way you can
"lose" your case before opening statement is by losing personal
credibility:  by coming across poorly, not listening to them,
and forcing the law and attitudes down their throats.  Trying
your case too early is actually the worst example; jurors don't
like to feel manipulated.  Don't worry about leaving your facts
for later and simply promising them that "we'll show you
evidence on that" whenever you tell them what you're alleging.

With all that said, a good jury selection should absolutely
include pre-conditioning, as long as it's subtle persuasion. You
do need to ask questions that get jurors thinking about your
case issues in ways that match the themes of your case, and
there are ways to do that without sharing any facts from your
case.  My apologies if you're going to trial this month or next,
because I'm going to save that topic for the next jury tip.

Connect with Harry (626) 975-4457 or visit 
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Thanks for sharing +Mitch Jackson . Now, I have another site to visit and learn.
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Cross Examination  - 
Few attorneys have the time or budget to do detailed preparation for cross-examination of every witness.

And even if the budget makes it possible, time spent on other aspects of trial preparation will force counsel to take shortcuts. When time is short, these 12 tasks are the bare minimum necessary for cross-examination preparation.
Few attorneys have the time or budget to do detailed preparation for cross-examination of every witness. And even if the budget makes it possible, time spent on other aspects of trial preparation w...
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Lee Olive

General Discussion  - 
Inside the Courtroom infographic
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Mitch Jackson

General Discussion  - 
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Mitch Jackson

General Discussion  - 
Do Your Jurors Have Questions?
by Elliott Wilcox

When you go to trial, your goal is to persuade the jurors to vote in your client's favor, right?  To accomplish that goal, it's essential that you find out what they're thinking.  Wouldn't you like to find out the answers to these questions?

Do they believe your witnesses?

Do they believe your opponent's witnesses?  

Do they have doubts about your theory of the case?  

Do any of the witnesses have credibility issues?  

Do they understand technical issues you've raised?

Are they following the presentation of evidence?

Are they unclear about any testimony?

Are they misunderstanding any terms your witness used?

Are they confused?
If you could learn the answers to those questions, you could tailor your cross-examinations, alter your direct examinations, or change your presentation of evidence to ensure that the jurors listened to you and your witnesses.  But unless you've got Professor Xavier (the telepath from the X-Men) on your team, is there any way to discover what your jurors are thinking?

Actually, there is.  One of the easiest ways to learn what your jurors are thinking is by letting them ask questions during trial.  By listening to the questions they pose, you can quickly decide whether you need to clarify a witness's testimony, whether you pursue a line of questioning, or whether you should back away from an impeachment topic.  By letting jurors ask questions, not only will you gain insight into what they're thinking, but you'll also gain a few additional benefits:

Benefit #1 - Clarity.  Asking questions allows the jurors to clarify information. You don't want the jurors to get hung up on simple issues.  Let them ask questions to clarify simple issues ("What does 'ancilliary' mean?"  "How many officers were called to the scene of the crash?"  "What was the effective date of the early termination clause referred to in the contract?") and they'll be able to focus on the more important issues and themes in your case.

Benefit #2 - Better Listeners.  When jurors are allowed to ask questions, they're forced to listen more intently so they can form their own follow-up questions.  Better listening leads to better retention and better comprehension, which is essential to a meaningful deliberation process.

Benefit #3 - More Involved Jurors.  Finally, jurors who are allowed to ask questions feel like they're more involved in the process.  By having more of an ownership interest in the trial, it's easier for them to remain interested and focused throughout a lengthy trial.

With all of these benefits, you'd think that juror questioning would be an integral part of jury trials, right?  Unfortunately, questioning by jurors is still relatively rare.  Here are the four primary objections that many lawyers (and judges) have against juror questioning:

Objection #1 - Prejudice.  As a trial lawyer, you know that it's impossible to "unring the bell" or "put the toothpaste back in the tube" after an improperly prejudicial issue has been raised.  That's why many lawyers don't want to give jurors the opportunity to ask about impermissible topics ("Doctor, didn't you have an insurance policy to cover this loss?"  "Officer, has the defendant ever been charged with other crimes?")

Objection #2 - Argumentative Questions.  Trial lawyers are prohibited from asking argumentative questions ("Why don't you stop feeding us a line of bull and tell us why you really decided to run from the cops?"), but what do you do when a juror asks a question prohibited by the rules of evidence?

Fortunately, with a good questioning process, these first two objections can be eliminated.  However, there are two additional reasons why lawyers object to juror questioning:

Objection #3 - Meeting the Burden of Proof.  How upset would you be if your opponent failed to ask about an essential element of your case, but then Juror #5 asked a question that proved the essential element and killed your chance for a directed verdict?  Hopefully, this scenario will be relatively rare, since you probably won't encounter many lawyers who are that stupid.

Objection #4 - Premature Deliberation.  The final objection lawyers have to juror questioning is that they'll begin deliberating before they've heard all the evidence in the case.  However, this isn't really a valid objection to juror questioning, because the jurors will ask the questions to themselves, regardless of whether or not they're allowed to ask the questions aloud.

If your judge is going to allow jurors to ask questions, here's a simple procedure to minimize the risk of improper or objectionable questions:

Step 1 - Put it in writing.  You don't want the jurors shouting out improper questions during the middle of direct examination, so have the judge tell the jurors to write their questions down on a piece of paper.  Here's how Florida judges instruct jurors about questioning during criminal cases:

"After the attorneys have completed their questioning of the witness, I will give sufficient time for the juror to write the question on the paper which you have been provided, fold it and give it to the bailiff, who will pass it to me. Please do not show your question to anyone or discuss it with anyone."

Step 2 - Review the Questions.  Once the questions have been submitted to the judge, they need to be analyzed to determine whether or not the question may be properly asked.  The judge should call the attorneys to the bench to give them the opportunity to object to any improper questions.  The jurors should be told that their questions will not be asked unless they are legally permissible.  Once again, here's how Florida judges instruct jurors on this issue:

I will then review the question with the attorneys. Under our law, only certain evidence may be considered by a jury in determining a verdict. You are bound by the same rules of evidence and procedure that control the attorneys' questions. If I decide that a question may not be asked under our rules of evidence or procedure, I will tell you. Otherwise, I will direct the question to the witness.

Step 3 - Ask the Question. After the judge determines that a question is proper, the question is posed to the witness.

Step 4 - Follow up.  Finally, both attorneys are given an opportunity to ask follow-up questions, to clarify issues raises by the jurors questions.

In your next trial, your jurors will have questions.  They'll either ask their questions during trial, or they'll ask their questions and make up answers during deliberations.   It's better to know what's on their minds before they deliberate, so encourage the judge to let them ask questions during trial.  You'll be glad you did!

Elliott Wilcox publishes Trial Tips Newsletter. Sign up today for your free subscription and a copy of his special reports: “How to Successfully Make & Meet Objections” and “The Ten Critical Mistakes Trial Lawyers Make (and how to avoid them)” at
Trial lawyers, discover how to persuade jurors and win your next jury trial. You will learn valuable tips for improving your jury selection, opening statement, direct examination, cross-examination, and closing arguments.
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Mitch Jackson

General Discussion  - 
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Tips for successfully assessing your adversary’s goals, capabilities, and willingness to fight.
When it comes to litigating a case, your client's objectives are only half the story. If you want to gain an advantage, you'll also need to successfully assess your adversary's goals, capabilities,...
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Mitch Jackson

Opening Statement  - 
5 Ways to Maximize Persuasion During Opening Statements - Part 2 (via +A2L Consulting )
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About this community

Welcome to our Trial Lawyer Tips Google Plus Community! _______________ This community is for all lawyers interested in trial advocacy. It's also for anyone else interested in litigation and trials (you don't have to be a lawyer to be part of our community. _______________ Below is the link to our community. Please bookmark and share it with other trial lawyers who are interested in sharing good trial tips and raising the bar when it comes to the art of court and jury trials _______________ Important! Please, NO SOLICITATION, SELF PROMOTION OR ADVERTISING. If your post isn't regarding a trial tip (article, video, podcast, link...) then it will be removed :-) Questions or comments? Contact Mitch Jackson at or 800.661.7044

Mitch Jackson

General Discussion  - 
A Trial Issue and Technique Most Lawyers Never Think About

When a new substantial case comes into the office, we immediately begin to share our client's side of the story on blog posts and social media.

Understanding that everything we share will probably eventually be seen by the other side, carrier and defense attorney, we strive to paint an accurate picture of the facts and damages in a persuasive way designed to condition and educate all who read the posts and look at the pictures or videos on social media. Sometimes this effort results in the claims adjusters following what we're doing, digesting the info and stepping up and settling a case.

If the case doesn't settle and goes to trial, this early year or two of work may come in handy if one or more jurors decide to violate a judges ruling and independently investigate the case. If they search Google or social media,  they will in all likelihood see our client's full version of the story and not just something that may have been posted by the other party or his/her/its representatives. I don't like it when jurors disregard the court's orders but I do think it happens and I think it's smart to plan ahead.

One way we do this is to correctly and persuasively share content on social media. On Tuesday, I'll personally be showing everyone all the steps that we take to do this during my free Spreecast for lawyers, "12 Ways to Share Good Content on Social Media." This detailed presentation will be live and recorded and both versions are available to you via this link: and also here

The Spreecast starts at 1pm PDT and will last an hour or so. Live Q&A both via chat and video will take place. If you like our preemptive approach to prepare for trial, please feel free to join us and also share with others. It's important to note that this approach not only works when sharing case info on social, but it also works for lawyers and firms interested in sharing almost any information on the digital platforms.

Hope to see you on the Spreecast!  Again go to
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Winning advocacy in the courtroom and in life is a combination of what you say, and how you say it. 
Winning advocacy in the courtroom and in life is a combination of what you say, and how you say it. Trial advocacy instructors Brian K. Johnson and Marsha Hunter authored Persuasive Style for Mock Trial and give five suggestions to help polish your persuasive skills for mock trial.
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Outstanding tips. Thanks for sharing +The Law Office of Jerry Jenkins, PA !
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A mini-retrospective of the best Litigation Consulting Report articles based on what our readers choose to look at in Q1 of 2015.
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When time is short, these 12 tasks are the bare minimum necessary for cross-examination preparation.
Few attorneys have the time or budget to do detailed preparation for cross-examination of every witness. And even if the budget makes it possible, time spent on other aspects of trial preparation w...
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Mitch Jackson

General Discussion  - 
Does Your Case Have a Title? by Elliott Wilcox

In the Perry Mason TV show, every episode had a title.  That quick and easy shortcut let the viewers know what the case was about, and helped them quickly and easily understand why Perry was involved.

Here are some examples of the episode titles:

Perry Mason- The Case of the Nervous Accomplice

The Case of the Silent Partner

The Case of the Angry Mourner

The Case of the Runaway Corpse

The Case of the One-Eyed Witness

The Case of the Deadly Double

The Case of the Half-Wakened Wife

The Case of the Desperate Daughter

The Case of the Buried Clock

The Case of the Deadly Toy

The Case of the Golden Fraud

The Case of the Artful Dodger

The Case of the Wayward Wife

The Case of the Ill-Fated Faker

The Case of the Angry Dead Man

The Case of the Impatient Partner

The Case of the Left-Handed Liar

The Case of the Tarnished Trademark

The Case of the Angry Astronaut

The Case of the Bogus Books

The Case of the Witless Witness

The Case of the Bigamous Spouse

The Case of the Careless Kidnapper

The Case of the Frustrated Folksinger

The Case of the Fatal Fetish

The Case of the Deadly Debt

The Case of the Vanishing Victim

The Case of the Murdered Madam

The Case of the Lethal Lesson

The Case of the Poisoned Pen

The Case of the Fatal Framing

The Case of the Lethal Lifestyle

The great thing about these episode titles is that they give you a shortcut for framing the entire case.  In an instant, you know what the case is about, and can make quick determinations about how to focus your cross-examinations, what to emphasize during direct examinations, and what story to tell during opening statement and closing arguments.

Right now, take half an hour out of your schedule and invest the time to identify the title of your case.  When thinking of your case title, ask yourself: "What is your case about?  Where should the jury focus their attention?  Who should they blame?"  Here are some examples:

The Case of the Indifferent Driver

The Case of the Greedy Contractor

The Case of the Careless Homeowner

The Case of the Police Officer who Jumped to Conclusions

The Case of the Text-Messaging Driver

The Case of the Pedestrian Who Refused to Look Up From His iPhone

The Case of the Mistaken Assumption

You don't necessarily need to tell the jurors about your title.  You can keep the title in your head and use it as a guide to help your case preparation or to help streamline your presentation.  Regardless of whether you share the title of your case with others or not, take the time right now to create your title.  You'll be glad you did!

Elliott Wilcox publishes Trial Tips Newsletter. Sign up today for your free subscription and a copy of his special reports: “How to Successfully Make & Meet Objections” and “The Ten Critical Mistakes Trial Lawyers Make (and how to avoid them)” at
Trial lawyers, discover how to persuade jurors and win your next jury trial. You will learn valuable tips for improving your jury selection, opening statement, direct examination, cross-examination, and closing arguments.
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Mitch Jackson

General Discussion  - 
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Mitch Jackson

General Discussion  - 
12 Reasons Litigation Graphics are More Complicated Than You Think
If the creation of litigation graphics were as simple as some people make it out to be, you would never need a litigation graphics consultant.
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Good advice!
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When it comes to a disagreeable court ruling, learn to make your strongest argument while remaining respectful to the judge.
An an attorney and an officer of the court, you sometimes have competing duties: to represent your clients zealously and to maintain respect for the court. When it comes to a disagreeable court rul...
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Larry Bodine

General Discussion  - 
9 Qualities of Successful Female Attorneys | The National Trial Lawyers
By Lyndsay Markley I’m frequently asked to speak about women in law and specifically the issue that only a small percentage of female attorneys are given management and shareholder status, despite ...
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