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Bar News - September 21, 2016


Book Review: Civil Jury Trial Manual Offers Helpful Guidance

By:

Mastering the Mechanics of Civil Jury Trials, A Strategic Guide Outlining the Anatomy of a Trial
By Tyler G. Draa, Doris Cheng, Maureen Harrington, Hon. Franklin E. Bondonno
Balcony 7 Media & Publishing, 2015
Hardcover, 298 pages

During my time as a Superior Court judge, a number of very skilled civil jury trial practitioners appeared before me. Through years of experience and over many jury trials, these practitioners had mastered the art of jury persuasion. They had learned to use each stage of the civil jury trial process to full advantage, many times succeeding, against the odds, in winning very difficult cases.

Yet these elite practitioners constitute a diminishing breed. Most lawyers today infrequently end up trying their civil cases to juries. Thus, fewer jury trials cause us to have a reduced number of experienced civil jury trial lawyers.

The authors of Mastering the Mechanics of Civil Jury Trials describe a “cycle” which “repeats itself,” where “[t]he inexperienced lawyer is unlikely to venture into the arena of jury trials, meaning that even fewer trials proceed to trial by jury.” The authors confront this civil jury trial predicament, which has resulted in “fewer mentors available to pass the experiential baton to aspiring trial lawyers,” by offering their work as a practical guide to assist those practitioners, particularly novice lawyers, who take on such a trial. They have done a commendable job to illuminate and, at the same time foster, a very important legal process.

The manual is not long, and although it particularly focuses on California practice, its advice is sufficiently general to be helpful in all jurisdictions.

The manual runs more or less sequentially, starting when the practitioner first has the case assigned for trial; and it goes on to consider and give advice on all aspects of the proceedings through verdict and post-trial motions and appeals. It covers, among other things, such important matters as pre-trial motions (including motions in limine), jury selection, opening statements, the order of evidence, introducing evidence, direct and cross-examinations, objections, technology, and closing arguments.

I highlight some of the manual’s gems of good advice.

The manual affirms that “the successful attorney must know the facts of his or her case – cold.” Only when this “factual homework” is done, may the attorney properly structure the case for effective presentation.

The manual urges practitioners to “embrace” adverse evidence at all stages of the trial. If an attorney is not successful in excluding harmful evidence, he or she should address it during the trial in a reliable and credible manner, with the goal of diminishing its negative impact. To pretend the evidence does not exist, or that the jury will not see its significance, is not a prudent way to win a case.

The manual calls for the plaintiff’s attorney in the opening statement to proceed as “a credible narrator,” and “[t]ell a [persuasive] story” that “convey[s] a series of facts in a memorable way.” It suggests that the defendant’s attorney use the opening statement to “[i]ntroduce the theory of the defense in broad terms,” “explain the burden of proof,” “personalize your client,” “continue defusing weaknesses in the evidence by acknowledging them candidly,” and remind the jurors to keep an open mind until all the evidence has been presented. It cautions that an opening statement should not be overly long, or overtly argumentative, but should provide a good outline of a client’s position, and work to establish the attorney with the jury.

The book also urges all practitioners to offer compelling presentations of the evidence, and conclude with persuasive, powerful closing arguments. It strongly recommends that practitioners proceed with good use of visuals, such as photographs, computer simulations, videos, charts, and diagrams. It advocates, in this regard, smart employment of technology. It also stresses that practitioners must be efficient and credible both in offering evidence and in making argument. As the manual points out, “[t]rial attorneys are constantly on stage.”

The manual underscores the importance of preparing witnesses well for both direct and cross-examination. “Memorable direct examinations occur when the witness shines and the attorney goes unnoticed.” This requires much work. Cross-examination is recognized as very significant. Juries generally pay close attention to the degree a witness stands up to effective cross. The manual reviews techniques and tools practitioners may use to retain control of cross. It covers the cross both of experts and non-experts and points out that a good cross-examiner “can wield control of the courtroom.”

I recommend this practice manual to trial lawyers. It cannot substitute for actual experience, but provides much helpful guidance.

At their best, civil jury trials serve the rule of law. A civil jury’s verdict, following a fair trial conducted by skilled attorneys, generally gains ready acceptance. The authors have performed a valuable service by putting together a manual to assist attorneys in functioning as effective civil jury trial practitioners.

John Lewis

John M. Lewis served as an associate justice of the New Hampshire Superior Court. He presently performs ADR services, practices some law, and teaches.

Supreme Court Rule 42(9) requires all NH admitted attorneys to notify the Bar Association of any address change, home or office.

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