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Great list of cross-examination resources. Thanks +The Law Office of Jerry Jenkins, PA for sharing with the community. Scheduling this link to share on Twitter!
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Mitch Jackson
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General Discussion  - 
 
The Most Dangerous Word in Your Courthouse 
by Elliott Wilcox

Do you know what the most dangerous word in your vocabulary is? 

You say it all the time.  It’s the most commonly used word in the English language.  If you listen to any conversation, especially conversations between lawyers, you’ll hear this word more often than any other.   More than any other, this word leads to claims of improper argument and unprofessional conduct.  Which word is it? 

“I.” 

That’s right - “I.”  The shortest word in the dictionary is also the most dangerous.  But what makes it so dangerous?

“I” is dangerous because it leads to statements like “I think…” or “I believe…”  Regardless of whether it’s an argument to the judge, a statement to the press, or an offhand comment during final summation, these seemingly innocuous phrases can have disastrous effects.  The phrase “I believe” can overturn an otherwise valid verdict, or lead to disciplinary referral.

How did “I” become so dangerous?  It has its origins in the English legal system.  They call it the “cab rank” rule.  Keith Evans, former barrister and author of Common Sense Rules of Advocacy for Lawyers, says, “if you are offered a case that is within your field of expertise, then, if the client is willing to pay what you usually charge and your calendar shows you are free to take the case - you don’t have any choice in the matter.  You must accept it.  If you turn it down you can be disciplined, even disbarred!” 

The rule was designed to prevent loathsome clients from finding themselves without representation.  It doesn’t matter whether you think the case is a winner or a loser, you are obligated to take up the cause and represent your client as best you can.  The barrister’s personal feelings are irrelevant.  He is there to argue one side or the other of the dispute, not to express personal opinions.

That view has been passed on to our American system, and codified in many of our professional codes.  For example, the ABA’s Model Rule 3.4 of Professional Conduct states, “A lawyer shall not... ‘state a personal opinion as to the justness of a cause, the credibility of a witness, the culpability of a civil litigant or the guilt or innocence of an accused...’”

That’s the “official” reason why you shouldn’t state a personal belief in your case.  Here’s a more compelling reason why you shouldn’t state your personal opinion in a case: It’s not persuasive.

Candidly, who cares what you think?  It may sound harsh, but, in the courtroom, who cares what you believe?  Unless the jurors personally know you and trust your opinion, why should they believe something you say?  Simply because you said so? 

The only lawyer that the jurors trust in your courtroom is the judge - your opinion doesn’t carry much weight.  Yet many lawyers persist in sharing their personal opinions.  Recently, I’ve heard the phrases “I believe...” and “I think...” on a regular basis.  Here are three recent examples from criminal court:

A defense attorney seeking a more lenient sentence for her client: “I truly believe that this is a case that deserves pre-trial diversion.”

A prosecutor’s comment to the paper regarding the possibility of re-trying a defendant after a mistrial: “I think he is guilty of the charge, and he should be prosecuted.”

An assistant public defender at a motion to suppress: “I believe that my client’s version of events is the more credible one, and therefore the court should adopt my client’s version as the more credible version.”
All of these comments were made by competent, experienced, and professional courtroom advocates.  Yet somehow, they resorted to using one of the weakest argumentative devices available.  It’s the same argument your mom resorted to when she couldn’t think of any other reason why you needed to go to bed: “Because I said so!”  It wasn’t persuasive then, and it’s not persuasive now. 

Think about it for a moment.  Which idea do you prefer - the idea that someone else proposes, or the one that you think of on your own?  Once you reach a conclusion on your own, you take personal pride in the conclusion.  When someone attacks your conclusion you’ll not only actively disagree with them, you’ll cling even closer to your conclusion. 

Jurors and audience members are the same.  They like their ideas better than they like your ideas.  Using “I” or stating your personal opinion shortcuts your persuasive powers.  They aren’t going to believe something just because you say it’s so. 

Avoid the risks of a re-trial or a professional remand by omitting “I” from your vocabulary.  Start by reading through the draft of your next presentation.  Every time you see the word, “I,” strike it from the page.  Can you replace it with the word “you”?  Your jurors, readers, or listeners care more about themselves than they do about you, anyway.  Give them what they want - talk about them.  Approach your argument from their perspective.  When you strike “I” from your courtroom vocabulary, you’ll become one of the most persuasive attorneys in your courthouse. 

(Well, that’s what “I” believe, anyhow...)

-------------------

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 www.TrialTheater.com
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Opening Statement  - 
 
Free A2L Consulting Webinar: 5 Ways to Maximize Persuasion During Opening Statements

http://communications.a2lc.com/5-ways-to-maximize-persuasion-during-opening-statements
If you can win the battle of opening statements, you'll likely win your trial. Up to eighty-percent of jurors will make up their minds about your case during opening statements. In this webinar you'll learn the top-five ways to maximize persuasiveness during opening statements. From how to tell compelling stories to visually supporting your key arguments, this one-hour will reveal the best secrets from courtroom persuasion experts. Ryan H. Flax, ...
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Mitch Jackson
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General Discussion  - 
 
Don't pigeonhole your jurors in voir dire
 by Harry Plotkin

In your daily lives interacting with others as people (not
attorneys), I have no doubt that you understand the concept that
peoples' attitudes about issues are on a spectrum; some people
have extreme views about a particular issue, but for most
issues, most people are somewhere in the middle without strong
opinions.  For those who like to think in graphs, people's
attitudes about issues in life usually fall in a "bell curve,"
and the fat middle of that bell curve represents the majority
who really have no opinion at all about the issue.

Yet when lawyers walk into a courtroom for jury selection and
start asking voir dire questions to jurors about their
attitudes, many if not most suddenly start assuming that every
issue in the case being tried is a polarizing one, and that
every juror feels strongly one way or the other.  If you read
that sentence and are thinking "that doesn't sound like
something I've done in jury selection," ask yourself this
question:  have you ever asked a voir dire question that sounded
something like this?

"Some people feel that [describe one way of thinking], while
others feel that [the opposite way of thinking].  Which way of
thinking do you lean towards, even just a little?"

You've all heard this type of question before, and many of you
have probably asked a version of it once, if not in every trial.
 "Some people feel that it's fair to compensate someone for
losing a loved one because of someone else's negligence, while
other people feel like it's not right, because money isn't going
to bring that person back.  Which do you agree with more, even
just a little?"  How is the juror supposed to answer, if they
don't feel strongly or haven't ever given it any thought?  You'd
like to believe that those jurors will say "neither, I don't
have an opinion," but in my years of observation, most don't:
they do what you've asked them to do.  They pick one. And you've
intentionally encouraged them to pick one, if you've added the
"even just a little?" to the question.

If you have, stop doing it immediately: you've been pigeonholing
your jurors, and the primary danger of asking that kind of
question is that you are gathering misleading information that
harms your ability to properly assess your jurors.  Here's why.

First, by forcing jurors to pick one of two choices, you are
completely ignoring what matters most:  strength of conviction.
A juror who absolutely hates insurance companies is much worse
than a juror who thinks insurance companies are a little
incompetent, and is light-years worse than another juror who
answers your question the same way-- "I would lean toward the
first group"-- but who is much closer to neutral.  Don't worry
about jurors with weak attitudes in the middle; ask questions
that dig deeper.

Second and even worse, keep in mind that when it comes to juror
attitudes about any issue, there are three camps:  jurors who
feel strongly one way, jurors who feel strongly the other way,
and then the camp in the middle that has no significant opinion
about the issue.  Put another way, the middle camp includes
jurors who are capable of PICKING a side if you force them to,
but their answers mean practically nothing, because their
attitudes are so weak and insignificant, they are meaningless.
What's worse is that with most issues, the middle camp is by far
the largest group, and so by lumping these jurors in with those
who have strong, negative views, you are in reality obscuring
the jurors you should be trying to identify.  Said another way,
forcing jurors to pick between two polar choices causes you to
fail to differentiate between jurors who are terrible for you
and jurors who are perfectly neutral.

I can't tell you how often in voir dire I've heard jurors weakly
echo an attitude just because another juror expressed the same
attitude earlier.  You'll often find that the jurors who have
neutral attitudes tend to be followers, and will claim to have
opinions they don't really have... but only if you force them to
take a position they don't really have.

Instead, you should be thinking about ways to identify your
terrible jurors who have strong biases and only bothering to
identify jurors who maybe, sorta' have less than perfect
attitudes, if they have to really think about it.  There are so
many ways to phrase voir dire questions that identify the jurors
with strong views; ask about particularly negative experiences,
or if you have time, ask each juror "how do you feel about it?"
in an open-ended way without putting words in their mouth, or be
blunt and ask a direct question like "who feels like awarding
money for pain and suffering seems pointless or unnecessary?" If
you feel like your jurors aren't being candid, and that some
jurors with strong views might be keeping quiet, call on some
individuals and ask "how do you feel about it" to warm up the
rest and make them feel comfortable chiming in.  But if you're
going to make your jurors pick between two options and keep
asking the "some people feel like X, others feel like Y" type of
question, at least make sure to give them the third option: "not
much of an opinion about it."
_________________________________

Harry can be reached at http://www.yournextjury.com
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Mitch Jackson
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General Discussion  - 
 
How to Apply Cialdini's 6 Principles of Persuasion in the Courtroom via +A2L Consulting 

http://www.a2lc.com/blog/how-to-apply-cialdinis-6-principles-of-persuasion-in-the-courtroom
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Mitch Jackson
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General Discussion  - 
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Mitch Jackson
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General Discussion  - 
 
My Favorite Questions To Ask Jurors

Jury selection takes place at the beginning of most of my trials. It’s my job to pick a jury that will help my client win his or her case.

When I start jury selection often times all I know about my jury panel are the names and occupations of my prospective jurors. I have no idea what their interest, likes and dislikes are. Do they like lawyers? Do they believe in the type of case I’ll be presenting in court? How do they feel about our legal system? Are they politically or religiously motivated? Are they conservative or liberal?

Often times the judge will only give me an hour or two to pick a jury. Good judges will give trial lawyers as much time as we need but that’s another post for another time. The bottom line is that if I pick the right jury then my trial is usually a breeze.  If I pick the wrong jury the entire experience is often times difficult and will probably end up being a nightmare.

So what’s my process? How do I go about finding out as much as I can about the human beings sitting in the jury box? The answer is that I try to ask good questions. This is critically important because if I go about things the right way, I can get a pretty good idea about who’s sitting in the box. At the same time, I can also use this process to start connecting and building trust and rapport with the decision makers.

I’m sharing these techniques with you because you can use the same approach and questions to engage a customer, co-worker or boss. If you’re presenting to a small or large audience, you can also use this approach to connect with your audience and get them to take action.

Before we dive into the power questions, let me start off by suggesting you not ask too many “yes” or “no” questions. Frankly, most of the time I find them to be completely worthless. If you do need to ask a yes or no question, make sure that it’s done as a sorting or filtering process to help organize your audience for the following types of questions.

Specific Questions

I love the question, “How did that make you feel?”

When a juror tells me they’ve been in an accident or been involved in a similar type of legal matter, after chatting about the specifics and connecting a bit, I’ll then ask, “How did that make you feel?” The answer I usually get really reveals quite a lot and highlights how that person feels about the issue we’re talking about. Often times I need to follow up a person’s initial answer with several additional open-ended questions but this single question has allowed me to pick juries who have eventually awarded million dollar results to my clients.

When it comes to having a juror or witness during the trial recall a conversation, rather than asking, “What did you say or what did he say?” I will ask the more powerful question: 

“Describe the conversation between you and Mr. Jones.” 

This type of question invites the other person to tell her version of what was said in a back and forth story type of narrative. It’s interesting to note that this approach works really well when asking questions to complete strangers.

Along the same lines, if I would like a juror to open up and tell me more about a particular event or experience I will ask:

“Tell me about the time when…” or maybe “Tell me the story when…”

In cases where a juror, family member or friend was harmed in a way similar to that of my client (can no longer walk, talk, earn a living…) I will ask:

“Tell me about the day when your realized… (ex: Sam would no longer be able to walk, go to work and provide for his family)” 

This type of question invites a story type of dialog response from the other person. This is especially true if you listen carefully and then follow up with more specific open ended questions.

When discussing the very real issue of whether or not a potential juror believes that money damages may or may not make a difference in the case, after hearing from one juror I often times turn and focus my attention to the next juror sitting to his left or right and ask:

“What do you make of that?” or “How do you feel about what Mr. Jones just said?”

This new member to the conversation can’t answer the question with a simple “yes’ or “no” and so the learning process continues. See how this dance works?

Often times jurors will get emotional during the selection process because the facts hit too close to home. They have read about the case in the newspaper or experienced a similar tragedy in their own family. When this happens I’m always respectful. Having said that, it’s important to find out exactly what’s going on inside the other person’s head. I’ll usually start the process by asking:

“Why is this case (story or issue) so meaningful to you?”

When needing to explain a series of events, rather than asking, “What did you do?” or “What did you do next?” I like to ask a more guided type of open ended question and then fill in the blanks with follow up questions as needed. I’ll normally ask:

“What were the steps that got you from A to B?” or “Please explain the steps you took to (go from this point in time) to (the start of something to the final goal or outcome)?” For example, “When you were designing the new smartphone app, what steps did you take from concept to final production?” 

Conclusion

There’s no better way to get to know someone than by asking good open-ended questions. Once you do ask the right type of question, stop talking and start listening and pay attention to not only what the other person has to say but also her body language and how she says it.

Hope you found this tip helpful. If so, please share :-)

Mitch
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3 comments
 
I'm am SO sick of the artifice we must deal with on Google, Twitter, FB, et al.

The truth is, the BEST lawyers are likely the WORST social media promoters.

It was so refreshing to see what matters: quality content. Quality content from a lawyer's lawyer perspective.

Thank you for picking juries. Wish the Google algorithm had a way to discern whom actually tries cases and whom regularly posts.

Our state motto is Esse Quam Videri. It has never been more true.

Billy 
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Jury trial coming up? Consider these 5 practical suggestions for voir dire.
When next faced with preparing for jury voir dire examination before trial, consider these five practical suggestions. Determine the types of jurors that you do and don't want. Rather than selectin...
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Mitch Jackson
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General Discussion  - 
 
How to BULLETPROOF Your Jury Instructions
by Elliott Wilcox

Every judge I've practiced before seems to have a different take on how the jury instructions should be prepared.  Some judges ask the plaintiff to prepare draft copies of the instructions and the verdict forms.  Others ask both sides to prepare an agreed-upon set of final jury instructions and verdicts.  Some judges prepare the first draft of both, and then edit them with both attorneys present.  Still others don't prepare any written instructions at all, instead preferring to read from a standardized jury instruction book.

Our trial hadn't been that complicated.  It was a straight-forward "Robbery with Firearm" case, and the case presentation was completed in a single day.  Now we were in the home stretch, finalizing jury instructions and verdict forms, getting ready for closing arguments.  The judge emailed a draft copy of the instructions and verdict forms to both parties, so we each had a chance to read through everything on our own.  Then the three of us went through every document page-by-page, approving each individual instruction and verdict form.

Now picture this -- you've got three experienced trial attorneys, each with a vested interest in the accuracy of the instructions and verdicts, reviewing everything page-by-page to look for any errors or omissions.  With that much brain power in the room, it should be impossible for us to miss any mistakes, right?

Wrong.

As the judge read the instructions aloud to the jury, she noticed two or three important mistakes and an important typographical error in the verdict forms.  Luckily, she was able to correct them on-the-fly, and she read the proper instruction to the jury.  But how did we miss those mistakes?  Even though I'd read everything word-for-word, even though my opponent had read everything word-for-word, and even though the judge had read everything word-for-word, somehow we'd still managed to miss those mistakes.

Have you ever made a similar mistake?  Maybe it was the jury instructions, the verdict form, or perhaps the wording of an important stipulation, but have you ever missed an important error in your documents?  Here are three reasons why we miss those mistakes, and how to avoid making the same mistakes in the future:

1. We were looking for what we expected to see.  All three of us had expected the instructions and verdict forms would be correct.  Between the three of us, we probably had more than two or three hundred trials under our belts.  We'd each seen these standardized jury instructions dozens and dozens of times.  We knew what was supposed to be there.  And because we were accustomed to seeing the same instructions, we didn't examine the documents with a critical eye.  Our eyes only saw what we expected to see. 

Solution: Have someone who isn't familiar with your case read through whatever document you're preparing.  They'll approach the document with a neutral eye, and will be able to see the typos, errors and omissions that your eye may skip over.

2. We were going too fast.  The judge had told the jury to take a 20 minute break while we prepared the instructions and verdict forms.  It was almost 5 o'clock in the evening, so we were working under time pressures to prepare the instructions and get the case to the jury at a decent hour.  The jury was right outside the courtroom, and we didn't want to waste their time.  As a result, we sped through the instructions faster than we should have, and missed important errors.

Solution: Prepare the documents when you aren't under a time crunch.  Give yourself enough time to patiently review everything.  The best time to prepare proposed jury instructions is when you first get the case.  Preparing your instructions at the onset of the case will help you organize your case presentation and anticipate any potential defenses.

3.  We didn't read it properly.  We reviewed the first draft of the instructions by reading them on the computer screen.  It's more difficult to review something on your computer screen than it is to review a hard copy of the same document.  When I'm writing these weekly articles, I edit the article on my laptop, checking and double-checking the article until I'm convinced I've caught every mistake.  You can guess what happens when I review the hard copy of the article -- that's right, even though I'm positive I've already caught every error, I always find more mistakes. 

Solution: Read it aloud.  No one in my trial caught the errors until the judge read the instructions aloud.  Recently, as I was reading some of these articles aloud to publish them as Podcasts, I was surprised to discover mistakes.  Even though I'd proofread the articles numerous times (both on-screen and on paper), I still missed some mistakes.  It wasn't until I read the article aloud that I caught all of the mistakes.  You're much more likely to catch any mistakes when you read the document aloud, so if accuracy matters, take some extra time to read it aloud.

You know that the accuracy of your jury instructions will make a difference in the jury's verdict.  To ensure that the jury is properly instructed the next time you try a case, simply follow these three quick and easy steps, and your jury instructions should be bullet-proof.

_________
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 www.TrialTheater.com
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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 TrialLawyerTips.com _______________ 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 mitch@jacksonwilson.com or 800.661.7044

Mitch Jackson
owner

General Discussion  - 
 
Often times how we communicate has a great deal more to do with body language than what we say. This is especially true in jury trials. You may find this video useful when preparing for your next case: 

Body language and gender from a dancer's perspective via Natalia Khosla | TEDxYale  https://youtu.be/ZBg5QvcZQP8
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Larry Bodine

General Discussion  - 
 
No Facts to Support Damage Cap Law in Missouri | PersonalInjury.com http://ow.ly/KySMG
Ken Vuylsteke, the President of the Missouri Association of Trial Attorneys By Larry Bodine, Editor in Chief, Personalinjury.com. According to Ken Vuylsteke, the President of Missouri Association of Trial Attorneys, there are no facts to support the looming enactment of lawsuit damage caps in his state:
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Mitch Jackson
owner

General Discussion  - 
 
“The Judge Spoke... But Did You Get a Ruling?”
by Elliott Wilcox

Judges are just like everyone else: They hate to be told, “You’re wrong.” In fact, some judges are so afraid of having their rulings overturned by the appellate courts that they’ve decided to take an easy way out: They’ve stopped making rulings!  After all, if there isn't a ruling, there’s nothing for the appellate court to overturn, right?  Here's a typical scenario:

Attorney #1: What happened at the executive council meeting?
Witness: Well, I heard that...

Attorney #2: Objection! Hearsay!

Attorney #1: It's not hearsay, your Honor, because [reason].

Judge: Move it along, counselor.

Attorney #1: Ok. Let's talk about [different subject]...

Situations like this arise every day in courtrooms around the country. Using a combination of body language, tone, and other non-verbal behaviors, judges subtly encourage lawyers to rephrase questions or move on to new topics. When you're caught up in the heat of battle, it feels like the judge has issued a ruling, so you rephrase your question or move onto another topic. In reality, no ruling has been issued, because the judge hasn't ordered you or your opponent to do anything. A common term for describing this type of action is called a "non-ruling."

The most effective "non-ruling" judges you'll encounter are often the friendliest judges you'll encounter in your practice. These judges succeed at "non-ruling" by drawing upon your inner desire to be a consummate professional, while also creating a congenial courtroom attitude. By encouraging both litigators to just "go along and get along," they can avoid issuing stern rulings (and also avoid a reversal from the appellate bench). Usually, "non-rulings" will be disguised as kindly suggestions, such as, "Why don't you go ahead and rephrase your question, ok?" Since you don't want to stir up the pot, you're usually inclined to go along with the judge's suggestion.

Here are some other common methods judges use to issue "non-rulings":

"Move it along, counselor."
"Please rephrase your question."
"Ask a different question."
"Go ahead."

Silence, combined with a scowl of the face or a nod of the head.
From a day-to-day practice point of view, "non-rulings" probably aren't that big a deal for experienced trial lawyers, because it's easy to rephrase your questions and work around them. However, here are two reasons why you should be wary when a judge issues "non-ruling."

First, if you're a neophyte lawyer, you're probably a little nervous in the courtroom. When the judge tells you to "move it along," you're likely to overreact, skipping past evidence that should be admissible.

The second (and more insidious) problem with "non-rulings" is the effect they have on your appellate record. "Non-rulings" leave the losing party without an appellate remedy. In the event of a non-ruling, the appellate court will always uphold the lower court decision. Why? Because the judge didn't order either party to do anything. Instead of issuing an order, he simply left the matter in your hands and your opponent's hands. If you decided not to ask the question or not to admit the evidence, that's your fault, not the judge's fault, and the appellate court can't help you.

So what do you do? How can you fix the situation? Well, it depends. First, you should decide if you really need the judge to rule. Sometimes, a non-ruling is all you need. If you're the one who's been objected to, you can simply rephrase your question and seek another way to introduce your evidence. If you're the one objecting, you've put your opponent on notice not to go down that road, and that may be enough to keep him from revisiting the issue.

But let's say that you really need a ruling. What do you do then? If you need the judge to rule, you probably shouldn't tell him what to do. After all, nobody likes to be told what to do, especially judges. Instead, consider asking the judge for a ruling. Obviously, you'll need to be polite when asking the judge for a ruling. Here are a few examples of how to ask:

The polite request: "Your Honor, before I continue, could I ask you to rule on the objection?" 

The clarification: "Judge, can I clarify your ruling? You're ruling that the entire conversation is hearsay, right?"

The inferential nudge: "So you're sustaining my objection, your Honor?"
Most of the time, non-rulings won't cause any permanent damage to your case. However, when you need the court to issue a ruling, you really need the court to issue a ruling. In those situations, make sure you've got your ears perked up to listen for any "non-rulings," and then be prepared to correct the situation before your case goes to the appellate level.
____________

 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 www.TrialTheater.com
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
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General Discussion  - 
 
Looks interesting: Courtroom Etiquette for Lawyers

http://landing.goclio.com/courtroom-etiquette-for-lawyers-registration.html
Learn more about the dos and dont's of courtroom etiquette in this free webinar March 17 featuring David Lat of Above the Law and the Hon. Judge Dillard. Register now!
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Do you know when to request that evidence be admitted for a limited purpose?
It may not be favored by courts or be the parties' preference, but there's a place for evidence to be admitted for a limited purpose. It can be seen as either a creative solution to an evidence adm...
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Mitch Jackson
owner

Voir Dire  - 
 
“Save Jurors from Bad Cause Challenges”
by Elliott Wilcox

Imagine that you're being audited by the Internal Revenue Service and need to hire an accountant. Since this is such an important decision, you're going to do a diligent search for the most qualified accountant in your area. You'll probably pick up the Yellow Pages, look for the accountant with the biggest ad, preferably a full-color advertisement on the back of the book, and immediately schedule your initial consultation. (What? That's not how you hire someone to perform a critical professional service?!? You'd base your decision on word-of-mouth reputation and the recommendations of your colleagues? Huh... That's weird.) Walking into his office, you drop two boxes of documents and receipts onto his desk and say, "I'm trusting you with the financial security of my family. I need you to make sure that this audit goes smoothly and keep me out of trouble. Can you do it?"

If he paused for a moment before telling you, "No problem... I think I'm up to the task," how would you react? Would you leave the boxes on his desk and say, "Thanks! Let me know how the audit goes?" Or would you grab the boxes and run?

Now imagine for a moment that you're going to the hospital for a minor surgical operation. Moments before they're about to begin the operation, you hear the doctor tell the nurse, "I'm pretty sure I can do this!"

How would you react? Would you relax, breath deeply, and wait for the surgery to begin? "After all," you'd think, "it's only minor surgery -- what's the worst that could happen?"

Probably not, right? Chances are you'd probably jump up from the operating table, rip the IV from your arm, and bolt out of the room.

You'd never accept equivocal answers from the people entrusted with safeguarding your property or your life. Even though it's only money and only minor surgery, you'd immediately demand a different accountant and a different doctor, because your life is too important to risk on someone who's "pretty sure" he can do the job.

The same thing is true in the courtroom.

During trial, jurors will be entrusted with safeguarding your client's money or liberty. To do that, they'll need to be fair, and they'll need to follow the law. Yet how many times have you had a juror tell you, "I think I can follow the law?" or "I'm pretty sure I can be fair?"

Usually, these types of responses are just a juror's honest (albeit conversationally casual) reaction to your questions. It doesn't necessarily mean the juror won't be fair, but it's no guarantee that he will be fair, either. Under the law, these types of answers are considered "equivocal," which means that either you or your opponent may now be able to strike him for cause by showing the judge that the juror's equivocal answer raises a reasonable doubt about his ability to be fair or to follow the law.

Getting rid of a juror for cause allows you to use your peremptory strike against another witness, so in reality, a cause challenge is actually worth two strikes. That's why equivocal answers can be dangerous. A single equivocal answer may give your opponent all the ammunition she needs to strike one of your favorable jurors for cause, saving her precious peremptory strikes to get rid of additional jurors who may be persuaded by your case.

What do you do when a potentially favorable juror gives you an equivocal answer?

Many lawyers try to shove an unequivocal answer down the juror's throat by "rehabilitating" the jurors. (I've been guilty of this in the past). Here's a typical scenario:

Lawyer: Ms. Jones, can you be fair in this case?

Juror: Um, I think I can.

Lawyer: Ms. Jones, in the courtroom, the law isn't really set up to deal with "I think I can" type answers. We like to have more definite answers. Just imagine getting on a plane and the pilot says, "I think I can land this plane safely." Obviously, you'd have some concerns about whether or not you should fly with him. You'd want a definite answer. Can you give me a more definite answer, Ms. Jones? Can you be fair in this case?

Juror: Yes, I can be fair.

The danger in this type of "rehabilitation" is that the court may still have a doubt about the juror's ability to be fair. If the judge thinks that the witness's "Yes" response was merely coerced by your questioning, the witness will still be stricken for cause.

Instead, you need to follow up and let the record reflect how the juror truly feels. One of the best ways to do this is by following up with an open-ended question asking the juror to elaborate on her answer. Here's are two examples:

Sample 1:

Lawyer: Ms. Jones, can you be fair in this case?

Juror: Um, I think I can.

Lawyer: Ms. Jones, can you think of any reason why you couldn't be fair in this case?

Juror: No, there's no reason I wouldn't be fair.

Sample 2:

Lawyer: Ms. Jones, can you be fair in this case?

Juror: Um, I think I can.

Lawyer: Ms. Jones, what concerns do you have about your ability to be fair in this case?

Juror: I can't think of any reason why I wouldn't be fair.

By asking the follow-up question, you can save this juror from being improperly stricken for cause, forcing your opponent to use one of her limited peremptory strikes. In the courtroom, you only get one chance to hear from the people who will ultimately decide your client's fate. Hopefully this tip will help you make the most of it!

________

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 www.TrialTheater.com
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To take advantage of the jury’s most attentive moments, cross-examination should be designed to keep jurors alert and awake at key moments.
A successful evangelist once said about his sermons: “Nobody ever got religion after the first twenty minutes.” His time estimate may be wrong, but every evangelist and trial attorney has wrestled ...
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Mitch Jackson
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Mitch Jackson
owner

Opening Statement  - 
 
New free webinar I wanted to share with you from A2L Consulting: “5 Ways to Maximize Persuasion During Opening Statements”  I'll see you there!  http://communications.a2lc.com/5-ways-to-maximize-persuasion-during-opening-statements
If you can win the battle of opening statements, you'll likely win your trial. Up to eighty-percent of jurors will make up their minds about your case during opening statements. In this webinar you'll learn the top-five ways to maximize persuasiveness during opening statements. From how to tell compelling stories to visually supporting your key arguments, this one-hour will reveal the best secrets from courtroom persuasion experts. Ryan H. Flax, ...
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Lee Olive

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Top 10 Tips for Young Trial Lawyers
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All good tips!
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