Tricks of the Trade: Tips on Winning a Trial from America's Most Experienced Litigators

Summary

America's top litigators have a set of essential tips when it comes to preparing for a trial. Preparing for a trial can be a daunting task, with a vast array of possibilities and circumstances. However, these tips and guidelines can help lawyers, whatever their specialty, manage the particulars of a case and assure a successful trial.


To start, litigators suggest that attorneys should strive for complete knowledge about a case before it goes to trial, in order to create the most effective strategy. This can be achieved by thoroughly researching the facts, researching precedent cases and familiarizing oneself with the parties, their lawyers, and the judge. A good strategy will also factor in the expected result and the cost of litigation.

Second, litigators emphasize the importance of sifting through the facts of a case and determining “the story” behind it. This involves a skilled blend of persuasion, storytelling, and argumentation. Through close examination of the evidence and facts, attorneys can create a narrative that is compelling and consistent with their client's best interests.

Thirdly, top litigators remind attorneys of the importance of being well-prepared. This means allocating enough time to prepare, rehearsing opening and closing statements, and being ready to respond to objections. Also, preparing visual aids and organization charts with the help of graphic designers and making sure to have the right technology in place can all make a difference in a trial.

Finally, successful litigators suggest that lawyers stay flexible. Even the best-prepared attorneys can find themselves in unexpected situations, but with the right strategies, they can navigate them successfully.

To summarize, from thorough research to staying flexible, America's top litigators advise attorneys to pay attention to the details when preparing for a trial. Researching the facts, determining the story of the case, being well-prepared, and remaining flexible are all key to succeeding in a legal trial. With expertise and thorough preparation, attorneys can handle unexpected situations and assure a successful trial.
 

Trial Tips from America's Best Litigators

Trial lawyers are some of the most sought-after professionals in the legal industry. From courtroom drama presentations to the high stakes involved in litigation, trial lawyers are responsible for the outcome of a case. In order to provide top-notch representation for their clients, experienced trial lawyers must be proficient in their craft. To help aspiring lawyers better understand the process of trial law, America's top litigators share tips to help prepare for a successful trial.
 

Gather Necessary Information

The first step in preparing for a successful trial is to gather all the necessary information to develop a clear strategy. Researching the facts of the case, exploring the legal theories, and evaluating the evidence must all be done before the trial. Attorneys should also be prepared to answer any questions that may arise, as well as to anticipate the courtroom strategy of the opposition.
 

Know Your Case Inside and Out

Knowledge is power in the courtroom. Knowing your case inside and out is essential to presenting a compelling argument. Litigators should be familiar with the facts of the case as well as the pertinent laws, in order to be able to effectively communicate the strengths of their argument. Being knowledgeable about the facts and the laws is essential for effective cross-examination, which can be a powerful tool for presenting a successful case.
 

Manage Your Time Wisely

When it comes to trial preparation, time management is key. Litigators should strive to stay organized and use their time effectively. Allotting time for research, preparation, and revision will help attorneys develop a complete and thorough legal case. Additionally, lawyers should also be able to adjust to changes in the courtroom and make sure to allocate time for preparation of any unanticipated issues that may arise.
 

Use Visual Aids

A trial lawyer should strive to make sure their client's case is represented clearly and effectively to the court. The use of visual aids such as photographs, diagrams, videos, or mock trials can help attorneys present an effective and compelling argument that resonates with the judge and jury. Attorneys should also take into account the size and layout of the courtroom when considering how to best use visual aids.

<<"This is the best that I could do at 6:15 in the morning in a hotel in DC preparing for a trial on 3/21 in Baltimore," commented Edward F. Fernandes, a partner with Akin Gump in Houston. He was responding to our email using his Blackberry wireless handheld.

Why are litigators like Mr. Fernandes so busy? Because they have managed to convince juries all over America that their clients' points of view are correct. Moreover, some of their trials have involved large amounts of money. Mr. Fernandes represented a major international software company in a $1.3-billion patent-infringement and trade-secret dispute and a major manufacturer in a $270-million antitrust lawsuit—to name only two of his cases.

Bill Price, head of trial practice at the L.A.-based Quinn Emanuel, won a verdict in excess of $250 million. Over the past few years—Jan M. Conlin, a partner with Robins, Kaplan, Miller & Ciresi—was co-counsel in two cases whose combined verdicts and settlements neared $1 billion.

The preceding are just some of the more noteworthy notches in these trial attorneys' belts.

Being successful in the courtroom is just as much art as science. Technology can help, but in the final analysis, the courtroom still features one lawyer making his or her client's case to a jury of his or her peers. Here are some suggestions from lawyers who have a particular knack for making their cases well.

Bill Price, head of trial practice at Quinn Emanuel
"Focus on how your case will appear to a jury and a judge."

That key perspective should be used to review every facet of your case, including "how your client behaves in deposition," says Mr. Price. "For example, you don't want your client saying 'I don't know' or being evasive when the average person would think he should give a straight answer."

"You also don't want to get caught in stupid discovery fights," Price adds. He is opposed to a rancorous atmosphere in which litigators object to, for example, every document request simply because they want to make life difficult for the other side. "Figure out what you need to do to win a case, and fight the fight. You look better to everyone," particularly the judge and jurors, when "you appear cooperative."

And finally, William Price suggests dressing well before you try your case, but not too well. "Dress for respect," he concludes, but don't dress in a way that makes the "jury think you're a high-priced trial attorney."

Edward F. Fernandes, Partner, Akin Gump
"Respect the jurors."

With regard to making your case to jurors, Mr. Fernandes' advice is simple. "Respect the jurors," he says. "Talk to them. Don't give them a speech. And don't ever underestimate their collective wisdom. If a witness is a jerk, cross your legs and keep him or her on the stand until they hang themselves. Eventually, the jurors will see the witness's real personality."

"Be yourself, the jurors can tell if it's an act. And don't take yourself too seriously. Keep your client's interests first, and the rest will follow," concludes Mr. Fernandes.

Jan M. Conlin, Partner, Robins, Kaplan, Miller & Ciresi
"Get your hands dirty on the technical details."

Ms. Conlin has been lead counsel or co-counsel on some of the largest intellectual property (IP) cases to see the inside of a courtroom. In terms of a litigation practice, she believes "IP law will continue to be a very high profile and highly energetic area of law." What do lawyers need to practice in the area? An open perspective and willingness to learn.

"You have to have some sort of aptitude for science," she adds. "For example, in my career, I've had to learn how Microsoft's Windows products [and the Internet] operate on a technical level…how postage meters operate and medical devices function. You have to like getting your hands dirty on the technical details."

Part of what Ms. Conlin appreciates about IP law is its intellectual challenge, but also the long game of trying to figure out the best way to win. "There are a lot of ways you can win or lose a patent case, which makes it interesting. It's a chess game, and you have to figure out where you're going on move sixty-five before you ever move your first piece."

William G. Schopf, founding partner of Schopf & Weiss, LLP
"Admit wrongdoing, if it exists."

"A few years ago I tried a case in which we admitted that my client, a lawyer, had made a mistake while advising his client," begins Mr. Schopf. "We were also able to demonstrate that his mistake played no role in the alleged injury." The jury agreed. Mr. Schopf likes to use the preceding story to illustrate several trail practice points.

"Inflated egos and aggressive personalities rarely work in front of juries. What does work," he says, "is gauging what is really going on in the courtroom—what the jury cares about."

"I have found it best to admit wrongdoing, if it exists. A jury would prefer to forgive you for an error than reward the plaintiff for lying."

In one recent trail, Mr. Schopf had to contend with 10-million pages of documents and evidence from more than 40 depositions. In that case, he used technology to effectively wade through and edit the material and then display it using a multimedia presentation. "The result was a very powerful, focused, and clear presentation of the facts. After hearing testimony throughout several weeks, the jury took only 2.5 hours to return a verdict in favor of my client."

Robert C. Weber, Partner with Jones Day
"Work with your case's durable thematic narrative."

"The one common denominator in all really fine trial presentations is an obsessive focus on your fundamental case themes," instructs Mr. Weber. "And for that you need to develop early on a durable thematic narrative."

Mr. Weber is emphatic about the importance of creating the all-important case narrative and sticking to it. And the narrative must be relatively simple, with no more than two or three sub-parts. Once the case's theme has been created, it should be used to direct discovery, motions, voir dire, even the closing argument. At the end the jury should take away the exact same story you first introduced in voir dire. "It animates and governs everything you do," explains Mr. Weber. "It is the fundamental."

Jim Quinn, Senior Partner, Global Chair, Weil, Gotshal & Manges
"Focus on your key witness."

With regard to litigation advice, Jim Quinn's primary trial efforts almost always focus on the key witness. "Jury trials," he explains, "are simply about credibility. It's who the jury believes. If you can destroy or undercut the other side's main witness, you go a long way to insuring victory."

With that in mind, Mr. Quinn spends much of his trial preparation time researching the witness. "It may be an expert, but in most instances, it's usually the other side's main storyteller. It's critical to have an extraordinarily effective cross-examination of the witness. If you are successful in undressing that person, it increases the likelihood you'll win. It sounds simple," Jim Quinn concludes, "but it's not."

The next time you take on a case and it's headed for trial, consider the advice of this informal panel of expert litigators. Because in the final analysis, winning or losing is in your hands.

Click on the links below to read more about these attorneys and their accomplishments.

Bill Price, head of trial practice at Quinn Emanuel

Edward F. Fernandes, Partner, Akin Gump

Jan M. Conlin, Partner, Robins, Kaplan, Miller & Ciresi

William G. Schopf, founding partner of Schopf & Weiss LLP

Robert C. Weber, Partner with Jones Day

Jim Quinn, Senior Partner, Global Chair, Weil, Gotshal & Manges