Tips From the BenchAdjunct Professor Victor Olds in The New York Law Journal, September 12, 2011
by Victor Olds
A law school professor shared with his class an amusing exchange between a trial attorney and a judge concerning a sustained objection to the lawyer's method of direct examination. "But Judge," argued the lawyer, "I've been doing it this way for 25 years!" to which Her Honor responded, "perhaps so, counsel, but if that's true, then you have been doing it wrong for 25 years!"
Whether relatively new to the courtroom or a veteran litigator, trial lawyers come to learn, both through formal instruction and by experience, that there are many ways of approaching the fundamental tasks of opening statements, direction examination, cross examination, registering objections and summations, each of which is an essential component to trying a case successfully. Yet, teachers, textbooks and even experience notwithstanding, a prudent attorney would do well to consider another important source of instruction, i.e., the views of the judges who preside at their trials. In much the same manner that the expectations of appellate judges were solicited in a prior article,1 here interviews were conducted of more than a dozen state and federal trial judges to obtain their views on these basic, albeit critical, areas of trial practice. Following are tips on what they and their judicial colleagues believe work best in conducting an effective jury trial.2
When asked just how important opening statements are to the prospect of a successful trial outcome, the judges polled are universal in their view. "Extraordinarily important," says U.S. Southern District of New York Judge Denise Cote, "because of their potential to influence a judge or jury concerning the manner in which they should view the forthcoming evidence." For this reason "the lawyer should seek diligently to engage the judge and jury with a thoughtful, focused preview of the facts they can expect to learn during the course of the trial." Several of Judge Cote's Southern District colleagues agree wholeheartedly, one of whom goes so far as to consider the opening to be the "single most important aspect of a trial." Judge Raymond J. Dearie, former Chief Judge of the U.S. District Court for the Eastern District of New York, suggests one reason for this as going to the nature of opening statements. In the main, he says, they provide an opportunity for lawyers to do a number of important things, including:
1) present the jurors with a preview of the issues and arguments that will arise in the case;
2) educate the jury regarding both matters on which the trial will focus and the nomenclature unique to a particular type of case (such as, for example, defining terms of art like a "put" or a "call" in securities-related litigations); and
3) introduce herself to the jury as a person whose trust she will be seeking to secure.
And, adds Southern District Judge Victor Marrero, an effective opening statement is one that not only provides the judge and jury with an overview of what the evidence will show and how it will serve to establish the lawyer's theory of the case—something which State Supreme Court Justice Alan Marrus likens to a movie's "coming attractions"—but that also provides the fact-finder with a reassuring "roadmap" of the general direction of where the case is going and of what to expect at various points along the way.
Most judges agree that an effective opening statement should be well-organized, relatively short, and employ simple, descriptive language conveying the core concepts that will emerge during the proceeding. In addition, where possible it should adopt a "story-telling" approach that presents forthcoming facts to the jury in a manner that will be memorable, appear genuine, and above all, jibe with the evidence that will be adduced at the trial.
That said, "openings do not lend themselves to a 'one-size-fits-all' formula," according to Justice Rena Uviller of the New York State Supreme Court, who suggests that each opening be tailored to fit the complexity of the case at hand. As a general proposition, she urges that cases with uncomplicated issues be presented in as straightforward a manner as possible, while those involving intricate factual and legal issues often require a more detailed narrative to adequately focus the jury's attention. But not too much detail, she warns, as this all-too-common error tends to turn a jury off. Judge Marrero concurs, pointing out that "because an opening statement is supposed to be a summary for the jury in the most concise and simplest form, any lawyer who engages the fact finder with excessive technicalities at this point in the trial will likely be less effective" in preparing the jury for what is to come, which is the basic purpose of the opening.
An even more common (and potentially hugely costly) mistake, says veteran Southern District Judge John Keenan, is overstating what the lawyer intends to prove at trial, thereby positioning himself as someone of whom the jury might ultimately conclude has failed to keep his promise. "Were this to occur," exclaims Justice Uviller, "it could turn out to be disastrous!" Indeed, as Judge Keenan sees it, "as far as the jury's concerned, it's like failing to pay out on a promissory note," an unfulfilled obligation the jurors are likely neither to forget nor overlook during their deliberations.
Finally in the area of common opening statement missteps, State Supreme Court Justice Debra James cautions lawyers to avoid veering into discussions involving an interpretation of the law. Clearly the province of the trial judge, she regards this as a particularly unfortunate error because of its potential to draw a sharp and embarrassing rebuke from the court at the critical time that the lawyer is seeking to establish a rapport and credibility with both the judge and the jury.
The one word that surfaces repeatedly among the judges in their discussions of direct examinations is "preparation." While there are several important considerations in scripting direct inquiries, most judges believe that at a minimum it involves thinking through in advance precisely what is necessary to be elicited under oath. To achieve this, a witness must be thoroughly prepared by counsel and provided with the tools (such as an adequate opportunity to review her deposition prior to trial) that will permit her to testify in a cogent and credible manner. This might sound fairly simple in theory, but, as Judge Cote points out, it can be difficult to accomplish on a practical level. She urges that to be effective direct testimony should come across as clear, straightforward and relevant in a way that will connect with the jury. That, according to the Judge, requires a lawyer to make considered strategic and tactical decisions on any number of important matters such as the order of his witnesses, where to drill down on a particular point to elicit greater detail based on its importance to the case, and when to back away to avoid confusing and distracting the jury with issues of relatively lesser significance. This, agrees Kings County Surrogate Margarita López Torres, demands thoughtfulness and planning, as in her view "the best trial lawyers are expertly prepared and painstakingly methodical when conducting direct examinations."
Many judges believe that part of what makes direct examinations so deceptively challenging is the difficulty in trying to have the witness testify in a manner that is clear, truthful and polished, while at the same time avoid looking as if he has been "scripted." As Justice James puts it, "thorough witness preparation is key, but you also don't want your witness' testimony coming across as rehearsed, or his memory as having been schooled." One Southern District Judge suggests a way around this dilemma is to prepare the witness to testify as though he were telling a natural and truthful story to a group of friends.
"Packaging," in the words of one very experienced state Supreme Court justice, is also important when planning for a direct examination. He describes this concept as considering each witness' testimonial value as a component of the overall proof presentation along with other factors likely to influence the particular jurors hearing the case. Admittedly no easy task, this might involve taking into account the witness' occupation, articulation skills, family status, order of testimony, etc., as a means of maximizing her impact on the jury.
Judge Marrero makes the point that a lawyer should bear in mind the close relationship between direct and cross examination, meaning that the former generally determines the scope of the latter. Accordingly, "if a direct examination sticks to the issues and doesn't open obvious lines of challenge, then the cross examination of that particular witness is necessarily going to be less effective." Moreover, in Judge Keenan's view, counsel virtually makes his or her case on direct examination. While clearly evident with respect of plaintiff attorneys in civil cases and prosecutors in criminal cases (since they get to go first), this applies equally to defense counsel in terms of setting a "tone" for the trial. "In some respects," he says, "a good direct examination can be compared to turning on the television set in your home before friends who have been invited over to watch the Super Bowl: You as the host (lawyer) set the volume, fix the color, adjust the focus, and then invite your guests (the jury) to sit back and watch the events unfold while listening intently to the announcers (your witnesses) bring the game to life."
If preparation is the key to effective direct examination, then listening appears to be the focal point in cross examining a witness. Several Southern District judges explain that this involves much more than simply paying close attention to the witness' responses; it includes having listened intently to what was testified to on direct examination, appreciating the witness' value to the other side, and familiarity with the witness' prior statements, deposition testimony, grand jury testimony and anything else pertinent to that witness' testimony at trial. As one judge on that court puts it, "you must know the witness cold just as if he or she were your own witness!"
In preparing for a cross examination Judge Cote advises that a good starting point is to consider the specific facts that need to be confirmed or admitted, and then devise a strategy to elicit those facts. "To do this effectively," says she, "the lawyer must determine how best to cast the witness in the light most favorable to his or her position." In other words, it is not always simply about setting out to destroy the witness on the stand. "Sometimes, in fact," observes Judge Cote, "evidence may have been elicited on direct examination that actually helps the cross examiner's case, in which instance the task on cross examination could well become one of trying to bolster that witness' credibility in a particular area instead of overall disparaging it." This notion is echoed by Justice Uviller who advises against routinely taking an aggressive, knee-jerk "sledge hammer" approach to cross examination, especially at the outset. She suggests that it may sometimes be far more beneficial in the long run to begin the process by attempting to put an already tense witness at ease to the extent possible before becoming confrontational if necessary.
Regarding the mechanics of cross examination, Judge Marrero offers that the inquiry should be focused and have a theme or point that will be established through a sequential flow of questions. A colleague on his court further urges that while an outline is advisable, the lawyer must also be able to deviate from his prepared script based upon the witness' responses. But above all, says Judge Keenan, "control of the witness is paramount." Accordingly, open-ended questions that allow a witness to ramble are, in his view, to be avoided at all costs. And sounding a familiar cross-examination admonition, Justice James reminds that one generally should not ask questions to which the answers are not already known. Indeed, essential to the success of this aspect of the trial is anticipation of the witness' responses, according to United States Eastern District Judge Joseph Bianco.
Several judges also caution against prolix cross examinations. This, in fact, is among the more common mistakes made by lawyers, according to Judge Dearie. He observes that "an excessively long cross examination runs the risk of creating an inattentive—if not outright bored—jury." In sharing this view, Judge Bianco speculates that extended cross examinations may sometimes result from the lawyer's misguided attempt to focus the jury on each and every witness inconsistency, an endeavor that is often excessively time consuming, rarely, if ever, essential, and thus in the end, potentially self-defeating.
A final common cross examination error worth noting—and one which clearly irritates and annoys many judges—is "grandstanding" such as, for example, repeating questions unnecessarily merely to have a witness to restate an answer to a question for dramatic effect. Judge Dearie warns that lawyers who employ such tactics, as well as those who go too far in their zeal and animation while conducting cross examination risk losing credibility. "Histrionics don't play well with juries" who, he reminds us, are comprised of ordinary men and women who tend to gravitate toward other genuine, respectful and overall pleasant individuals.
Here, as with their opinions on the importance of opening statements, the judges are virtually unanimous in their views that objections should be short and to the point. In most instances they feel that the lawyer would do well merely to limit her objection to one word: "objection." In some cases, says Judge Dearie, it is acceptable to state briefly the basis for the objection, such as "objection, leading," or "objection, hearsay," but no more. Anything further, say Judges Keenan, Marrero and Bianco, should be offered only at the request of the court, and even then, if necessary, taken up at a side bar out of the jury's hearing. In addition, many judges, including Judge Cote, prohibit "speaking objections," i.e., objections that offer an explanation in the hearing of the jury that goes beyond what is necessary to state its basis. Several of her Southern District colleagues who impose this same rule in their respective courts explain that doing so protects against allowing a lawyer to squeeze in an argument or point while the other side has the floor.
Judges say it is difficult to overstate the importance of closing arguments. "Huge," in fact, is how one Southern District judge describes it; "critical" is the word that comes to Justice Uviller's mind, given that it is the lawyer's last opportunity to connect directly with the jury. For this reason, explains Judge Marrero, closing arguments must be "coherent, concise and to the point," demonstrating to the jury how the evidence proved exactly what the lawyer claimed it would at the outset of the trial. He believes that the best way to accomplish this is to draw direct parallels between what was promised at the opening phase of the trial with the evidence that substantiates those promises. "This," he suggests, "tends to create in the minds of the jurors a symmetry between the preview of the evidence offered at the commencement of the trial and the facts actually established during the course of the proceeding, which in turn can build enormous credibility with the jury."
Judge Keenan also urges litigants to "think strategically" in terms of their order at the summation phase. The lawyer who goes first, he points out, must in addition to making his most important points anticipate what the other side is likely to say and try to preempt her effectiveness. Counsel who gets to speak last, on the other hand, is the final voice that the jurors will hear on the merits of the case, and thus gets to make the last impression on them. For those and other reasons, says Judge Dearie, the most effective summations present the jury with a theme around which it can focus. "It need not always be complicated" according to the Judge, "and in fact could be something as simple as 'the prosecution's case simply doesn't hold up when viewed in light of the evidence, and here's why…'" In the end, however, Surrogate López Torres reminds the trial lawyer that while it is important to appreciate and follow sound and accepted practices in each of these areas for trying a case effectively, "one also should never overlook the value of investing time into 'learning one's judge' and the rules by which she governs her courtroom."
Victor Olds, a former federal prosecutor in the Southern District of New York, is presently senior counsel for Legal Services NYC and an adjunct professor of law at Columbia Law School and Fordham University School of Law. Andrew B. Samuel, a law student at Columbia, and Anna Matsuo and Brian Matty, law students at Fordham, assisted in the preparation of this article.
1. See Olds, Victor, "What Judges Want and Expect From Appellate Advocates," New York Law Journal Special Section, Aug. 31, 2009.
2. While the opinions expressed in this article are solely those of the individual judges interviewed, they nonetheless conveyed the sense that their views reflect the mainstream thinking of many of their judicial colleagues.