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Bar News - October 19, 2012

Trial Tips: Every Moment in Trial Is an Opportunity

At the Sept. 14 NHBA CLE Superior Court Forum at the Bar Center, Superior Court Judge William Delker, only a few months after leaving the Attorney Generalís office, offered these tips on effective advocacy. The following is an edited version of his presentation:

Use every opportunity to be an advocate. Be mindful about what you are saying and doing in court, and donít be aggressive. Donít come off as a highfalutiní lawyer. Present yourself well and do your best to relate to your audience.

Always remember your audience. Your presentation might be different for a bench trial than a jury trial. Use descriptive details in your writing and oral arguments. These create mental images that jurors will take with them to the deliberation room. And make sure to establish the background of your witnesses, even if itís not positive. You donít want the jury to hear about the checkered past of your witness for the first time during cross-examination.

Make sure the jury can see and hear what youíre doing. Use exhibits effectively and publish them to the jury and present them in a large enough format so that they can be seen. If the jury canít see or hear, the lawyer canít win.

Juries pay attention to everything you and your client do in court. Even when youíre not presenting or examining a witness, members of the jury watch your actions, facial expressions, mannerisms and levels of professionalism and organization. Likewise, advise your client that jurors are watching, even when he or she is not testifying. You canít control your client, but do your best to make sure he or she doesnít show up to a sentencing hearing wearing swim shorts, for example.

Listen to what the witness is saying and respond to it. Trials arenít scripted, and witnesses often say unexpected things. Make sure youíre paying attention and responding appropriately to the answers. Recognize if a witness seems nervous and ask him/her to explain, to avoid the jury misinterpreting his or her behavior. Make sure witnesses explain terminology or slang terms, to make sure the jury understands.

Expert testimony must be comprehensible. Spend the time to prepare your expert to use laymanís terms to explain scientific terminology as much as possible. Do your best to balance your desire not to insult the intelligence of your audience with your desire to make the testimony and evidence clear and understandable.

Practice. Rehearse your openings and closings in front of people who know nothing about the case. Donít let your presentation get bogged down with too many names or details. Use only the names of central witnesses. Practicing your presentation can help you step out of the weeds of the case and get an outside perspective.

Use technology effectively. Proper tech tools can enhance a presentation and the credibility of the lawyer.

This program is available online, on DVD or in audio format. Visit the NHBA CLE Online Catalog.

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