Top 10 Trial Mistakes
by Morris B. Hoffman
By popular demand, we're re-printing an article about timeless tips from the bench.
By Morris B. Hoffman
Denver District Court
I’ve long suspected, both as a lawyer and more recently as a judge, that a trial judge knows no more about how to be a good trial lawyer than a piano tuner knows about how to be a concert pianist. All too often judges confuse our role of keeping the mechanism running with the mechanism itself. We also tend to confuse our own administrative agendas with notions of good lawyering. A good lawyer is not always the lawyer that makes our jobs as judges easier.
As a result of holding these convictions, I am particularly skeptical about judicial contributions to the growing literature of trial "how to’s." But at least a piano tuner tunes a lot of pianos, and armed with the rather humble principle of sheer osmosis, I’d like to offer these observations about 10 common mistakes I’ve seen trial lawyers make in my courtroom in my short time on the bench.
If there is one cleaving character trait that separates spectacular trial lawyers from all others, I believe it is the ability to communicate to the jurors a sincere belief that the lawyer respects the intelligence of the jurors. Of course, if one does not hold that belief, it cannot be sincerely communicated.
Underestimating jurors is easy to recognize, but, like many deeply rooted personality traits, it is very difficult to fix. Maybe that’s why there seems to be only a handful of lawyers truly gifted in this area—and why underestimating jurors is such a common problem.
Even if you are in the majority for whom this gift does not seem to come naturally, work on it. Try to approach every aspect of your case with the assumption that the jurors are just as smart as you are. More often than not, they will be. Your appreciation of that fact may not only pay big dividends in terms of the outcome of the case, but it will make you a more courteous and humane person, not bad effects in and of themselves.
The discovery tail is now in full wag of the dog. A substantial number of trials I have presided over, especially if the parties have any kind of economic wherewithal, have been so over-discovered that the lawyers have had no time to prepare or even think about the trial. Presumably, they did a bang-up job at depositions; unfortunately, they had no idea what they were doing at trial.
Some lawyers seem to be afflicted with the notion that a trial is simply a container into which every fact learned in discovery must be dumped. There also seems to be an entire generation of young lawyers who have been trained to believe that the trial war is merely the sum of discovery battles, and that if you "win" enough of these battles this somehow translates into victory. Don’t fall into either of these "litigator’s" abysses. A seasoned former partner of mine gave all young associates in our firm this advice: "If you have a choice between spending a day taking a deposition or spending it staring out your window just thinking about your case, take the window route." I couldn’t agree more.
Most prospective jurors report for jury duty angry and skeptical. The first thing most lawyers do is to make them more angry and more skeptical by engaging in a process whose fundamental assumption is that there are prospective jurors who must be hunted down like dogs and removed for their "biases." These "biases" are discovered by a series of tricky Rorschach questions designed to open hidden psychiatric vistas in mere minutes.
My trial observations have confirmed my instincts that this entire approach to voir dire is baloney. All any of us can realistically hope for in voir dire is to find out if any jurors have a direct financial interest in the litigation, are related to any of the parties or the lawyers, or for any other gross reason cannot be fair or impartial. In my opinion, all the other energy lawyers waste on pop psychology in voir dire is not just a waste, it is a waste that insults the jurors, and does irreparable damage to the legendary "rapport" which is supposed to be created at this stage of the trial.
The most effective voir dire I’ve ever seen was by a well-known Denver trial lawyer who stood up, asked about five minutes’ worth of questions aimed simply at whether the prospective jurors thought they could be fair and sat down. That exchange did more to build rapport than 100 questions about the jurors’ children, reading habits and toilet training.
I’ve included this traditional criticism in my list of rather non-traditional criticisms because it is such a common mistake. Cross-examining effectively, as opposed to cross-examining in a way that makes the lawyer feel he’s won some psycho-sexual battle to the death with the witness, is very difficult. It requires an uncommon kind of restraint and patience.
There is no law that requires a cross-examiner to ask five questions about each question asked on direct. At best, it simply irritates the judge and the jury, and at worst, it reinforces the direct. Go to the heart of what you think is weak about the witness’s testimony, and then stop. The most effective question on cross is often the question that the lawyer is smart enough to leave unasked.
It is a common mistake for lawyers not only to over cross-examine in the substantive sense, but also in the emotional sense. Don’t treat every witness as if he is a lying slug. Not all of them are.
It’s truly amazing to me how often lawyers respond to hearsay objection with words to this effect: "Your honor, the declarant will be testifying." That response is never a proper response to a hearsay objection. The only proper response is to argue that the statement is not hearsay (because, for example, it is not offered for the truth of the matter or because it is otherwise definitionally excluded, such as an admission by a party-opponent), or to rely on an exception. If your mind goes completely blank, rely on the residual exceptions of 803(24) or 804(b)(5), if for no other reason than to stall until another exception comes to mind.
Perhaps the easiest solution to this problem, and other evidence problems, is simply to remember to bring your copy of the rules with you. Believe it or not, I have had several lawyers respond to an evidentiary objection by stating, in front of God and the jury, that they forgot to bring their rules of evidence and could they please borrow mine. My suspicion is that jurors frown on such forthright but pathetic confessions.
You do not have to memorize all 12 jillion hearsay exceptions. Just become proficient at using your copy of the rules of evidence to look up these exceptions. And when you have raced through your list and exhausted all possible hearsay exceptions, it is not against any natural law to admit that your opponent’s hearsay objection is well taken and to withdraw the question or exhibit.
If there is a capital offense among the crimes of the trial lawyer, in my judgment it is reading depositions in lieu of live testimony. I cannot overstate the brain-numbing, rapport-killing, and stupefying effect this has on what is already in most cases, at least in most civil cases and excepting the actual process of deliberation, a juror’s most boring life experience. I have seen close cases lost the moment lengthy depositions have begun to be read. If you feel you have no choice but to read a deposition, be selective. Read as little as possible. Hire someone to read who doesn’t sound brain-dead themselves. And save it for near the end of your case, because jurors may not listen to anything you or your witnesses say afterward.
It’s always nice to give the jury the impression that you are asking questions for a reason. So when your witness answers, try to forget that you have already asked this witness this question 10 different times in discovery, and five different times already in this trial, and actually listen to the answer. It may be different than you expect and it could have some effect on your next question.
It is my observation that very few lawyers can get away with the Sturm und Drang that many think they can get away with. Part of this goes back to underestimating the intelligence of jurors. Jurors will know if you are acting, and they will generally forgive you. They will not forgive you if you are overacting. Gary Cooper is acceptable in court. William Shatner is not.
The flip side of the overacting problem is the problem of the lawyer who has tied his own emotional, political, and/or philosophical wagon to his client’s cause, and whose in-court angst is actually sincere. Jurors (and judges) can pick up on this, and can lose confidence in the advocate’s independent professional credibility. If you are really a true believer, do your cause a big favor and have it hire a good trial lawyer who isn’t a true believer.
I’ve saved the most important observation for last. After presiding over my first dozen or so trials, a startling notion became clear to me: The side with the best case almost always wins, and the performance of the lawyers almost never matters. Some of the best lawyering I’ve ever seen has resulted in spectacular losses. And some of the most bumbling lawyers have had the fortune of attaching themselves to strong, and therefore winning, cases.
If you can get over the humbling effects of this proposition, I think it can be truly liberating. You can relax, you can have fun, and, ironically, you can do a better job. Don’t blame yourself for having bad facts, and don’t confuse the value of your performance with the outcome of the case.
Before leaving you with the impression that I think these 10 mistakes are just the tip of an iceberg of incompetence, I believe it important to put these observations into context. Next to discovering that the best case almost always wins, the most pleasant discovery I’ve made in my first few years on the bench is that the in-court performance of lawyers has been much better than conventional judicial wisdom sometime suggests. With really very few exceptions, the lawyers in my courtroom have been well prepared, courteous and energetic. I think it imperative that we maintain some measure of perspective whenever we engage in the institutional bench/bar turkey shoot that seems irresistible to us.
We should not, either as lawyers or judges, lose sight of those among us who are bright, competent and hardworking, in our relentless pursuit of those who are not.
Indeed, by considering these 10 rather modest mistakes, it is my hope that the vast majority of good lawyers can without much additional effort become even better.
This article was reprinted from the September 1993 issue of The Docket.