Trial consultant offers tips for busy lawyers

St. Louis Daily Record & St. Louis Countian, May 27, 2006 by Jaclyn Jaeger

(The following article was originally published in Lawyers USA, Boston, MA, another Dolan Media publication.)

It takes practically no time at all to read Bob Gerchen's new book, 101 Quick Courtroom Tips for Busy Lawyers, but it is packed with witty, quick-to-the-point advice you won't soon forget.

Gerchen shares his expertise as a veteran trial consultant in the areas of jury selection, juror rapport, witness preparation, trial strategy, exhibit presentation, courtroom demeanor and language use.

With respect to language, Gerchen suggests when speaking to a jury to use words that evoke images. Adjectives are useless. For example, rather than using the word excruciating, instead say, Mr. Jones' head hit the windshield, and he experienced a pain that he'll tell you was like having a metal wedge being driven into his forehead with a sledgehammer.

Gerchen also reminds lawyers to keep their language simple, and be acutely aware of words whose meaning is second nature to lawyers, but may be confusing to jurors. He tells the story of a now-famous lawyer who, early in his career, tried a masterful case. As he awaited the verdict, the jury informed the judge that they needed a definition of two words that were used continually throughout the trial - plaintiff and defendant.

The author offers another, less extreme, example which comes directly from the deposition transcript provided by a court reporter:

Question: Is your appearance here today pursuant to a deposition notice I sent to your attorney?

Answer: Um, no. This is how I dress when I go to work.

When it comes to trial strategy, Gerchen urges lawyers to guard against falling in love with your case. All too often I've seen attorneys summarily dismiss facts and evidence that favor the other side, believing that their case is a 'slam dunk.'

To avoid this, Gerchen advises lawyers to get some perspective through pre-trial focus groups and mock trials.

Just because you think your case is bulletproof doesn't mean that it is. It's what the jurors think that's most crucial, he writes.

To get jurors on your side, make them into participants in your case. Trial lawyers should give the jurors something to hold every day, such as a copy of a document or a piece of physical evidence. This helps lawyers build a positive relationship with jurors.

In a similar vein, he reminds lawyers to avoid turning their backs on jurors when they speak to a judge at sidebar. Always position yourself so that jurors can see your face.

Positioning is also important when examining a witness. When your own witness is on the stand, you want them to look at the jury when they testify, because this makes them appear more confident and honest. So Gerchen suggests that lawyers position themselves at the far corner of the jury box, so that the witness is looking at the jury at the same time they are responding to the lawyer's questions.

Conversely, when cross-examining an opponent's witness, a lawyer should stand away from the jury so the witness tends to look away from them when responding to a question. This makes it difficult for witnesses to make eye contact with jurors and thus makes them appear less confident and as though they may be trying to hide something.

The manner in which lawyers conduct voir dire is another important way to build juror rapport. In this area, Gerchen reminds all lawyers to shut up and listen and be the most interested person in the room. By doing so, jurors also will become more interested and engaged, leading them to speak more freely and openly.

Gerchen also provides examples of questions that are juror- centered, focusing on their attitudes, their beliefs and their experiences. In the end, building juror rapport allows lawyers to make more informed decisions about who they want on their jury.

No matter what your area of practice or level of expertise, Gerchen's book is a quick read that can help any lawyer brush up on his courtroom skills.