Forget Jury Instructions start HERE for Trial Preparation [Ep122]

Think jury instructions are where to start with getting ready for your jury trial? Think again.

Join Elizabeth Larrick as she shares key strategies for achieving courtroom success. Learn why understanding a judge’s rules and procedures is as important as knowing your case facts. Elizabeth delves into the specifics of voir dire, discussing time allocation and format variations to connect with jurors.

Elizabeth offers strategies for adapting trial preparations to meet the demands of any courtroom environment. Learn to manage expert witness schedules and align your presentation to the judge’s persona to avoid unexpected setbacks. Through real-life examples, this episode highlights the importance of meticulous planning and understanding a judge’s expectations to ensure effective execution of every trial element.

In this episode, you will hear:

• Maximizing trial success strategies
• Navigating trial preparations and judge persona
• Nuances of voir dire: time allocation and format variations
• Strategies for connecting with jurors
• Legal research and preparation for judge’s trial persona to avoid unexpected setbacks

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Episode Credits

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Episode Transcript

Hello, and welcome back to the podcast. I’m your host, Elizabeth Larrick, and I’m excited that you’re here today for this episode.

Before we dive in to our episode, I just want to recognize that today, the release date for this episode will be September 11th. And knowing what [00:01:00] a crucial date that was for our history, I just want to take a quick moment to pause for silence.

Alright, thank you so much. And if you’re listening to this later on, which can happen for folks in their download, that’s totally fine. Uh, I always want to recognize we have a major technical issue. Date that comes through if it’s on my release date. All right, so let’s jump right in This is an episode for anybody who is going to trial at any point in their career Okay, because we have been taught as lawyers that the place to start you get a case in Where do you go is to get those jury instructions and figure out what you need to prove And that puts us all on our legal track about all the facts we need to go find, the investigation that we need to do, and we’re fully engaged in our lawyer brain, right?

And that’s where law school tells us that. A lot of times our first jobs will tell you that. Okay, well what do you need to prove? Go [00:02:00] find those jury instructions. But a smarter place to start would be to go find the judge’s rules and procedures for trial because that will tell you a whole lot more about how you can try your case.

Because in trying cases, it is much more important about the how versus the what. Almost every case that I get involved with, cases I see and hear about, the lawyers have the what. They have the facts. They go investigate. They get the depositions. They talk to the witnesses. It’s the how that we are all striving to work on.

How do we talk to the jury? How do we present this the best way possible? The delivery of the information here is key, which is why we have so many trial consultants, focus groups, data surveys, jury consultants, right? Books upon books, CLEs upon CLEs [00:03:00] that try to tell us, help us understand how we can talk to juries and how we can communicate our cases.

So, The reason why I think we need to start with looking at our judge’s rules and procedures is because that will significantly craft how we will put on our trial. And the number one thing you want to find out about your judge in their courtroom is how they conduct voir dire. How much time do you get And what is the format?

Very significant. Some folks come in and you may, you may give you all day. Some may give you three hours, some 45 minutes, some 20 minutes, right? That is a huge difference. 20 minutes to a whole day, cover a whole lot more things in a full day. So you really want to be able to know how much time do I have?

Because then that will help me hone in on what are the key questions, [00:04:00] right? What are the key things that I need to talk Um, and then also allowing you to practice that because sometimes we’re used to having a significant amount of time and when we don’t, we have 20 minutes, we even have 45 minutes compared to normally having a day, we really have to work on making that succinct, but still being true to who we are and making connections with our jury.

The other part about this is the format or the style of what deer. Some folks, it’s. You turn around and you face the whole jury panel because they’re sitting where the public, in the gallery, where they would normally sit. And you get to see all faces and you talk to everyone all at once. Other folks, other judges like to put 12 in the box, 14 in the box, and that’s who you talk to.

Right. And then they just replace them as they go along. And that kind of makes it a little difficult for like, where are we putting our body and who we’re talking to and knowing that everyone is listening to us. [00:05:00] Right. Same thing, right? How are we navigating that and what kind of questions that we want, because Jury selection is this place that we actually can talk to jurors, where we build our credibility and this is our golden time to talk to them.

So we really want to use it wisely and have it designed the best way we can for our case. And best example I could give you is thinking about how Nick Rowley does jury selection. His key thing about jury selection is Eye contact, right? And being fully present with the folks that are talking to him and engaging with them on a real personal level, even though you’ve just met.

Um, and he does that a lot through eye contact, knowing what he’s going to say, but also again, being very present in that. And if we find out last minute, [00:06:00] we find out 30 days out. Oh, hey, by the way, this is going to be your jury selection. That doesn’t give us a lot of time because we’re putting all the other pieces of trial together.

We really want to make sure that we show up and we’re not surprised and we’re not hurrying, right? We’re being as present as we can with those folks because that’s that golden time, right? To be one on one with them and ask them questions, right? And be present in their answers. No other time do we get to do that in trial.

Uh, you may think, oh, well, we get to do closing arguments. Honey, if you, if you’re waiting to close an argument to bond, like connect, build credibility, you just missed the whole window, right? Missed the whole trial there. So number one, we want to find out from our judge, how are they doing jury selection?

Now, this also includes the ability to plan if you need to use a questionnaire. If 20 minutes, Then let’s do a questionnaire. And now you have the whole case to be thinking through what goes on this questionnaire. [00:07:00] What are the key things? key factors that we could ask on a questionnaire. That’ll get through, right?

Because we’re just gonna be thinking about what the other side’s gonna object to and what the judge will allow, right? Same thing. We want to be able to think that through and really practice that out and use our focus group information to plan out our questionnaire. And same thing if you may You’ll be able to file a motion to extend, you’ll know what your stats about how that’s going to work out for you or not, but just to be able to plan for that as well.

Again, there are lots of balls in the air when we think about getting in that 30 day mark before trial. Motions in limine. deposition diagnosis, then cutting those depots, you know, getting on the phone with counsel, getting all our witness lines lined up, talking to our experts. There’s a lot going on. And so that’s why we want to get this out early so that we can plan for it ahead of time.

The second key thing that we want to get and learn about our judge Transcribed by https: otter. ai Is there trial procedure, literally [00:08:00] how they like to have their evidence presented? Do they allow a PowerPoint, right? Do you have, are there special rules they want so that you can make sure the jury gets a copy of everything?

And then also their daily schedule. Judges have other stuff to do, right? And so some like to start late to allow business before the jury gets started. And some like to block off extra time at lunch. Some want to end early, some skip an entire day, some skip two days in a week to be able to handle this extra stuff.

And that is really crucial in planning your order of proof, planning out your witnesses, who is going to go and how are they going to end and what happens if you end on cross exam one day, like what kind of witness will that be? And that really becomes significant when you’re thinking about playing videos versus live witnesses.

And if you have some shortened days and you can predict around those now, that will significantly help you maybe be able to [00:09:00] avoid extra fees with our experts having to stay over because we know that our opposing counsel will be watching that clock and seizing that moment if they can. And that’s just kind of one of those things.

Can we plan around that a hundred percent? No, things come up that we can’t plan around. However, we can know at least several months out or even right when we start how this judge is going to run that daily schedule that will really help us be able to shape our evidence. And also to know, like, have a plan, a backup.

Maybe we have extra before and after witnesses to fill in gaps, right? Most of the time, this is kind of an afterthought. Like, oh, well, if we have them, great. If not, no big deal. However, think of it as, okay, we could have a whole different, we could have a whole group, a whole gang of folks that there always will be somebody ready every single day if we run out of things or if we need to have a gap filler, right?

Nothing wrong with that. Is there? Of course not. And again, that just shows the judge you’re ready and you’re [00:10:00] ready to go and try the case and you’ve got people waiting outside no matter what happens. And that is a significant thing. You want to make sure the judge knows that and the defense counsel does too.

All right, our last piece we want to dig into here with our judge’s procedures and rules is we want to do some legal research and find out what is the judge’s trial persona. How do they act in a trial? Some judges are the same, same emotion, same with trials. Some of them become this larger than life character.

Right? And we’re all just taking our place and they’re telling us what to do. And some really love trials. They love having trials, letting lawyers do their thing, watching it. They give lots of room here. Others do not. So they’re not, maybe they’re not going to pay attention at all. Maybe they’re going to be working on other things they have to do.

And that makes it difficult, right? If you’ve got a really contentious opposing counsel. to get things done because it’s [00:11:00] really going to slow things down if you’ve got a judge who’s just not into it and not paying attention. And so you want to go out and you want to ask other lawyers. What their experience has been, uh, and then you really just want to go watch, right?

Go see how they act and go see how they like to have things done. When there is a trial, there is a huge difference for most judges between how they are regularly in a motion docket and how they are in trial, right? Having that juror in the room significantly changes things. And again, you also think about, at least for us here in Texas, our judges are elected, right?

And so. That’s their, that’s their electorate right there picking them. So they, again, it really depends on, I’ve had judges who just, they love it. They ham it up. They tell jokes and that really, you know, not that it’s a problem, but it can kind of be a little bit of like, okay, let’s, you know, or they, Like to plant themselves in the trial, right?

They’re very active. Like they ask their [00:12:00] own questions or some don’t. And so you really want to know what is their persona so that you can be prepared for that. The last thing you want to do is be surprised by judge behavior because that can really throw you off. And you know, basically we’re in a fishbowl here and the jury is watching and I’ve definitely had stories where judges can break your trial.

Where they have made up their minds already that this is not going to be a place where there’s going to be a big verdict. This is not going to be a place where we’re going to use the reptile. And you just don’t want to catch them off guard either. And you want to be prepared for surprising them, right?

Because they’re, some of them will do their research of you too, and some of them won’t. You know, and that’s kind of the place where you really want to make sure if you need to adjust what you’re doing, meaning you need to file trial briefs months out, you need to have research on hand, branded out, ready to go, as soon as there’s an objection, [00:13:00] and be prepared to ask for that proffer in the face of defeat.

Right. And just knowing, okay, I’m not going to be caught off guard. I don’t want to caught, catch the judge off guard. So how do we do that? How do we, you know, graciously do that and play along their rules in their sandbox. So where does this episode come from? I’m working with a lawyer doing some virtual focus groups for several months now, getting up ready for a trial that’s coming up and They brought me the judge’s rules and procedure, and it was kind of a, you know, a big blow to the case because it was such a limitation, specifically, let’s talk about the schedule.

So, they have half days. And every other day, there’s no Friday. So when they were looking at, we’re looking at, okay, how do we create this, this order of proof when before the plan [00:14:00] was, let’s be fast. Let’s be efficient. Let’s, let’s get this done in two weeks. Now it’s looking like this is four or five. This could be a six week trial with very disjointed.

attention, right? If you were just doing half days and then coming back and maybe missing a Friday here and there. And so the other thing too is like, oh my gosh, the, the time expense of being out of the office, the extra expert fees, right? If they get caught on the stand and cross exam keeps going and they got to come back the next day and then the next day.

You know, it can really significantly add up with that time expense. The other limitations were on jury selection and trial briefing. And there was a little bit of sliver lining with it with the questionnaire, but it really kind of was a blow for how they had been thinking about and planning already, right?

We’d been doing focus groups, how they’re planning to do this, and then [00:15:00] looking at how do we adjust. What, how do we adjust and work with this particular rules, procedures, and then also the persona. Because the persona was, this is one of the toughest, right, folks, cause they just don’t really like trying cases.

So they make it very, very difficult. That’s why a lot of these rules are here. They don’t, they want to rule the roost. And so how do you do that and prepare yourself, but also prepare them so they don’t feel like, Oh. You’re just like everybody else, right? Not gonna follow the rules. And that was one of the things that is that right at the top of the judge’s rules, know the rules.

And so, okay, you know, how do we learn more about this? But really, you know, you just don’t want to be in that place where you’ve been working really hard, pairing your case, you’re taking all these depositions, and then you just get a, like, just a gut punch with the procedures and just, oh my gosh, like, how are we going to do this?

In an efficient way and keep attention [00:16:00] and memory right thinking through how do we make this memorable for the jurors who may be here for six weeks, but they’re only getting a half day of information, you know, just really. Okay. How do we do that? And how do we design direct? You know, how do we kind of plan for cross?

Like, how do we make our depo videos? Like, how do we plan for jury selection, voir dire? So, you know, we always want to be thinking about these things. But the simple truth is, if you don’t start your trial preparation, when you file, with the judge’s rules and procedures, you can be left creating a case that you never get to put on.

And that’s not what you want to do, right? We want to make sure we want to be time efficient. with ourselves and budget efficient with our cases. And so, you know, number one, we need to learn our jury selection, how our judges like to run voir dire. We need to learn about what is their daily schedule? What is their procedure for admitting evidence?

What do they want to see and [00:17:00] hear? Right? It’s a print and paper kind of person. And what is the judge’s trial persona? Do they let you do visual aids? Do they not? You know, are they, uh, love trials or do they not? How is it going to be in that room? Everyone in there and how that judge is going to perceive the things that are going on.

And as trial lawyers, we must always, we must be thinking about how we will try our cases. How will we talk to the jurors? How will we deliver the case? The evidence? So, we need to know the rules of the playground. We need to know those early. We avoid extra expenses. Build our case, our evidence, the way that fits in with the rules of the playground, the ability.

To practice all those things and design your jury selection and really feel confident and not surprised by your judge and their persona that you may encounter. All right. I [00:18:00] hope that this episode was helpful. If you are curious about doing focus groups with me or even a trial strategy call, you can book a free consultation with the link in the show notes.

And until next time, thank you so much.