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29 Leap Year Tips for Success at Trial: From Mock Trial to Closing Statement

Kenneth J. Lopez, J.D.
By: Kenneth J. Lopez, J.D.

Jury Questionnaire, Trial Graphics, Trial Consultants, Litigation Graphics, Trial Presentation, Jury Consulting, Courtroom Presentations, Mock Trial, Litigation Consulting, Litigation Technology, Trial Consulting, Demonstrative Evidence, Hot Seat Operators, Trial Technology, Litigation Support, Juries, Jury Consultants, Trial Preparation, Jury Selection, Psychology, Storytelling, Practice, Bullet Points, Expert Witness, PowerPoint, Visual Persuasion, Judges, Redundancy Effect, Opening, Infographics, Closing Argument, Timelines, Witness Preparation, Damages, Information Design, Persuasion, Bench Trials

I often talk about what not to do, but sometimes, I must remember to mention what you should do to achieve success at trial. In honor of leap year 2024, I have written this article offering 29 tips for successful trial preparation and execution. You can use this list as a checklist to compare yourself to your peers. I did not develop these ideas alone. Instead, they come from my experience working with the best of you over the past 30 years.

1. Conduct a mock trial. The very best litigators always conduct a mock trial when at least $10 million is at stake. Mock trials are a critical part of the Persuadius service offerings. If you want to discuss one, I invite you to email me (ken@persuadius.com) or call me (1-800-847-9330) or, ideally, fill out a client conflict check form by clicking the purple button in the upper right corner of this page. Only three people, including me, see those.

2. Conduct more than one mock trial. The ideal number is three, and that's precisely what I have observed the best trial lawyers do. It's not always affordable, but more than one mock is mandatory for cases with $25 million or more at stake. The only thing that varies is the investment in each mock trial. If $100 million or more is at stake, every mock should have every investment possible (i.e., a proper mock facility, a two-day or three-day mock, live witnesses, opening and closing statements, etc.).

3. Collaborate with litigation consultants who bring experience and insights to trial preparation. With a track record of handling hundreds of trials, we have witnessed exceptional and lackluster attorney performances. We aim to share valuable knowledge and advice, not lecture or boast about expertise. Drawing on the collective wisdom of countless cases, we strive to support you in crafting a solid and effective trial strategy. Litigation consultants can be exceptionally helpful when developing your opening statement.

4. Build a solid opening statement. In 30 years, I haven't seen anything to convince me that the opening statement is not the most essential part of the case. Some studies say that 80% of jurors make a decision about who will win after hearing opening statements. When done correctly, it should take months to develop an opening. It should be tested many times in whatever way your client can afford. We've written extensively about this. This topic is wonderfully covered in our opening statement toolkit ebook. See The Opening Statement Toolkit.

5. Use storytelling techniques in your opening and closing statements. Watch a webinar and download our guidebook on the topic. Develop a compelling narrative that tells the story of your case. This will help the jury understand your position and connect with your arguments emotionally. This is a complex thing to do, which is why it takes a long time and is so valuable.

6. Consider the opposing party's arguments and anticipate potential challenges. This is especially true for the opening statement. During the mock, your first chair should present and prepare the opponent's opening well beforehand. They may have the best insight into how your opponent will approach the case. Where valuable, consider having your litigation consultant prepare some of these drafts of the opening statement. It is always beneficial to have an outside opinion.

7. Presenting your case effectively using trial graphics is crucial, especially in complex civil matters with high stakes. As a seasoned expert in this field, I have found that incorporating trial graphics can significantly enhance the jury's understanding and retention of critical information. Whether it's charts, graphs, timelines, or other visual representations, these tools can help make your arguments more compelling and memorable. Although preparing a PowerPoint looks relatively easy to work with, there's much science behind doing it well. Consider Persuadius litigation graphics testimonial video and examples and 5 PowerPoint Blunders: The Worst Litigators' Mistakes

8. Practice voir dire in your mock trial. I think whether this is worthwhile depends entirely on your jurisdiction. But if your jurisdiction allows for it, be prepared. Start with three times the number of jurors you need and practice narrowing that down using an adequate voir dire strategy. See 10 Effective Voir Dire Questions When You Represent the BIG Company and 6 Questions to Ask in Voir Dire for a Civil Trial.

9. Use effective communication techniques. Be confident, clear, and concise when presenting your case. Use body language and eye contact to engage the jury and convey your message effectively. See The Best Ways to Pause PowerPoint to Enhance Connection with Judges and Juries and 5 Ways to Maximize Persuasion During Opening Statements - Part 1

10. Be prepared for cross-examination. Anticipate potential questions and prepare your witnesses for challenging questioning. This will help them stay calm and focused during cross-examination. See How to Be a Great Expert Witness (Part 3)

11. Prepare your witnesses strategically. Identify critical fact and expert witnesses who can provide valuable testimony to support your case. Thoroughly interview each witness to gather relevant information and assess their credibility.

12. Prepare witnesses for the trial environment. Explain the courtroom procedures, potential questions they may be asked, and the importance of truthful and concise answers. Keep them from being boxed into yes or no questions. Teach them the way out of this classic cross-examination technique. See How to Be a Great Expert Witness (Part 3)

13. Practice mock examinations with witnesses. Familiarize them with the process and help them refine their responses. Everyone should watch the recorded mock trial. I know it's hard. I know it could be more comfortable at times. But this is where all the value is.

14. Create a supportive and comfortable environment for witnesses, ensuring they feel confident and prepared to testify. Some consultants believe in ripping the witnesses apart during witness prep. Their theory is that if you prepare them for the worst, the reality will always be better than anticipated. I don't believe this in this approach. If an attorney badgers your witness, that will only help the judge and jury align with your side. Do you prepare your witnesses, however?

15. Deeply research your judge. Here are just a few ways to do that. 21 Ingenious Ways to Research Your Judge

16. Use video conferencing tools to facilitate remote testimony or expert witness appearances if the court allows. In the era of COVID-19 and with more and more courts favoring remote testimony, this has become common. Test it during your mock exercise.

17. Consider using one or two words on a PowerPoint slide to summarize what you will say, and then say it. Studies show people will not remember your words if you read the slide.5 PowerPoint Blunders: The Worst Litigators' Mistakes

18. Fuse with your technology. Please ensure you are familiar with the technology you plan to use and test it before the trial to avoid technical glitches. You should test it in every mock trial that you run or every internal run-through that you conduct. This way, you become familiar with how the technology performs and how you interact with it. Absolutely, hire a Trial Tech early in the process.

19. Prepare for jury selection: Develop a strategy for selecting jurors likely sympathetic to your case. If you can influence what questions are asked on the jury questionnaire, test those questions in your mock trial to see what works best and filter out the drawers you don't want. If you are in preemptory-challenge jurisdiction, practice that during the mock. If not, practice that during the mock. Determine what is cause for your client. Above all else, hire a jury selection expert like those from Persuadius.

20. Conduct background research on potential jurors. Identify possible biases or prejudices impacting their decision-making. This is not appropriate for all jurisdictions.

21. Change the format of your PowerPoint slides. Only sometimes have the title at the top. Don't use the same colors throughout the presentation. Studies show that people will begin to tune out that portion of the slide that they are expecting. You can use an expert like those at Persuadius to develop your opening, direct, and closing presentations.

22. Mix your presentation mediaDon't use all PowerPoint or all trial boards. Could you mix it up to keep attention on what you are presenting? Recorded depositions break up a long and tedious trial quite well. Just don't overdo it. Think at most five minutes at a time, and warn jurors about the length.

23. Be assertive but respectful: Be confident in your arguments, but avoid being aggressive or confrontational. I recently watched a trial where opposing counsel made everything seem important. The result was that nothing was important. Of course, that was fortunate for us.

24. Be prepared to adapt to changing circumstances: Adjust your strategy based on new information or unexpected developments during the trial. Key exhibits are ruled inadmissible; you are arguing during your opening statement, or your opponent likes to object and interrupt you. Ideally, you plan for these things during your mock trials, but it is still possible to get thrown off. The critical thing is not to show it.

25. Stay organized by engaging a trial technician. Keep track of all relevant documents, evidence, and exhibits in an organized and easily accessible manner. Using a trial technician will help enormously in this effort, involving them as early as possible. It will help you develop an organization strategy for your documents, exhibits, and depos. When it comes to trial, you should be able to refer to any document and do callouts on the fly, which makes you look prepared to judge and jury. See trial technology at Persuadius.

26. Manage your time effectively: Develop a timeline for trial preparation and ensure that you have sufficient time to prepare all necessary documents and evidence. 

27. Develop strong relationships with your clients. Maintain open lines of communication and be responsive to their needs. Generally speaking, this means being open and apathetic. Update your clients on key developments and have regularly scheduled calls and emails, whether or not anything has happened. Delegate this task if necessary. It's important it gets done. It's less important that the first chair do it.

28. Develop a strong closing argument. I think closing arguments should deliver on all your promises made during opening statements. Ask your litigation consultant to help with the closing argument. You must close all the loops you opened up at every point during the trial. Go back and reread your opening statement and refer to it. If it is a large trial, it's been weeks or months since you made those promises. Revisit them. Say things like, "remember when I promised you…"

29. Develop and use a strong support team. Engage expert witnesses, consultants, and other professionals who can provide valuable insights and support throughout the trial. During a recent bench trial, they had me, a speaking consultant, a mock judge, and an entire trial team advising just for the opening statements. This speaks to the confidence of the first chair litigator, who wants to focus on winning, not their ego.

Preparing for a trial can be complex and challenging, but with the proper preparation techniques, you can increase your chances of success in the courtroom. By understanding the legal process, building a solid case, effectively communicating with clients, preparing witnesses strategically, and utilizing technology in the courtroom, you can present a compelling and persuasive case that maximizes your chances of success. Successful trial preparation maximizes your chances of winning in court.

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