Trial advocacy tips

Yesterday I judged a moot court competition as a “juror.” For those who are unaware of the concept of a moot court competition, it is a competition for law students where they are given a fact pattern and then must prepare and argue it at a mock trial. The level of advocacy by the law students was excellent, but there is always room for improvement. Judging the competition reminded me of a few key tips I’ve learned as a litigator which are important to keep in mind any time an advocate enters a courtroom, whether moot or real:

1) Develop a theme for your case and repeat it often. From the opening to the closing statements, there should be theme to your case. Develop the theme early and repeat it often. Having a theme allows the jury to follow  the underlying idea of your case and gives your argument direction.

2) Beware of cross examination on widows. Cross examination can be tough. You never know how difficult the witness is going to be. But no matter what, if you have a widow or a injured plaintiff, do not attack him or her on the stand. You can be firm and combative with any other witness, but with a sympathetic one, you must use kit gloves and be extra gentile, otherwise the jury will just dislike you as a litigator and punish your client.

3) Don’t try to fill the silence. If a judge asks you for case law and then takes a few minutes to read said case, do not try to talk and further argue. The judge will tell you to stop talking and you are not allowing him/her to read the authority which you have prepared. Beforehand, you should highlight the case so the judge can find the authority with ease, but do not talk until the judge has put down the reading.

4) Motions and objections can make or break a case. Spend as much time drafting and preparing pre-trial and evidentiary motions as you do the rest of the case. How a judge rules on evidentiary motions will determine what evidence is presented to the jury. It doesn’t matter how well you have prepared a witness if that witness never gets to testify because you did not anticipate a motion or objection the opposing side had prepared.

5) Don’t put all your arguments in one basket. If you have a great argument that shows the defendant is liable, be sure to argue it strongly. But if you have more than one argument, be sure to include those as well, and early in your opening. You never know if the argument you think is a sure winner just isn’t strong enough to convince the jury.

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