Category: Judge’s Corner

The Honorable Brian Dretke, Union County Circuit Court Judge

It has been my practice to visit with the jury after every trial. In addition to asking about their perception of the trial process and ways it can be improved, I always ask for their candid assessment of the lawyers’ performance. After a recent trial one juror said, “Boy, those lawyers sure don’t like each other, do they?” The other eleven jurors nodded in agreement and in the discussion that followed words like “nasty”, “sarcastic”, and “too aggressive” were mentioned. They unanimously found it an unpleasant distraction from their role as fact finders. The discussion ended with another juror shrugging her shoulders and saying, “I guess that’s just the way lawyers are.” I wanted to disagree but unfortunately I have witnessed similar behavior in both bench and jury trials. The purpose of this article is to raise awareness of the importance of civility and professionalism in the practice of law, and to suggest methods of addressing and curbing incivility among lawyers.

The adversarial nature of the legal profession does not have to dictate the manner in which legal professionals interact with one another. In a speech to the American Bar Association in 1993, Justice Sandra Day O’Connor addressed incivility,

“[T]he justice system cannot function effectively when the professionals charged with administering it cannot even be polite to one another. Stress and frustration drive down productivity and make the process even more time consuming and expensive. Many of the best people get driven away from the field. The profession and the system itself lose esteem in the public’s eyes.

… In my view, incivility disserves the client because it wastes time and energy – time that is billed to the client at hundreds of dollars an hour, and energy that is better spent working on the case than working over the opponent.”

This is just as true today as it was two decades ago. Attorneys often seem to equate boorish behavior and obstructionist conduct with zealous advocacy. These are easily distinguished. Zealous advocacy benefits the client; poor behavior and obstruction do nothing to advance the client’s cause, and in some cases actually undermine the client’s credibility because the things lawyers say and do reflect on their clients.

Of course, professionalism is far more than simply being polite. It is recognizing that your job is not to “win,” but to help administer justice. It is being realistic about the strengths and weaknesses of your case and being willing to adjust your position as justice requires. It is advocating creatively, but reasonably. It is returning phone calls and emails, responding to discovery requests timely and completely, and being respectful of the time and resources of opposing counsel. Professionalism is refraining from sarcasm, ridicule and obstructive tactics such as unwarranted instructions not to answer questions during depositions. During trial, it is avoiding derogatory references to opposing counsel in front of the judge and jury, and refraining from inappropriate body language in an effort to persuade the jury (loud sighs, eye-rolling, tossing a pen, or shaking your head in disagreement). In short, it is treating everyone – even those you disagree with – with respect.

Civility and professionalism can alter the course of litigation from a battle in front of a jury to an agreeable resolution. Why? Because when a case is approached as two professionals trying to work out a solution to a problem rather than two adversaries itching for a fight, clients will often follow their example and become more amenable to settlement. If the case does go to trial, the spirit of cooperation leading up to trial invariably results in a more seamless presentation of the parties’ respective cases, for example, stipulated exhibits, joint jury instructions, and far fewer objections.

So, what should you do when confronted with opposing counsel who resorts to unprofessional litigation tactics? The first thing is to stand up to it. Make a record of the offending behavior. If it occurs during a deposition, admonish counsel that you will not tolerate it further and will call for court intervention if it persists. Often that will be sufficient, but if it is not, follow through. I am by no means suggesting that every quibble justifies calling the judge, but if the behavior is significant enough to disrupt the deposition and interfere with the ability to obtain relevant discovery and testimony, a call to the court is justified. If the behavior occurs during trial, wait for a recess and ask that the record reflect the offending conduct. Again, that will often be sufficient, but if it is not, seek remedies such as an enhanced prevailing party fee and/or sanctions. Finally, if the behavior is serious and recurring, consider reporting the offending counsel to the bar disciplinary counsel. A lawyer who continuously engages in such behavior will not be deterred unless there are consequences to his or her actions.

In Revson v. Cinque & Cinque, 70 F. Supp. 2d. 415 (S.D.N.Y. 1999), a case that examined the question of when a lawyer crosses the line from zealously representing a client to abusing the legal process, the court quoted from an OSB Bulletin article written by then Chief Justice Wally P. Carson, Jr. and bar leader and professionalism advocate Barrie J. Herbold entitled “Why ‘Kill All the Lawyers’?”. It is a fitting conclusion to this article.

“As lawyers and judges, we live out who we are by our actions. Professionalism is not something to don at the office or take off with our suits and our robes; our behavior continuously demonstrates who we are. We can improve our own lives and spirits, those of our clients, opposing counsel and parties and the community as a whole, if we simply remember that our part in the system gives us tremendous power, to make life better for every citizen …. If every lawyer and judge … would analyze every action she or he takes in light of the goal of ensuring that the system works fairly and efficiently for everyone, questions about professionalism would simply disappear – and tremendous good would result for our community. 59 Or. St. B. Bull, 9, 12 (Jan. 1999).

The Honorable Beth A. Allen, Multnomah County Circuit Court Judge

In the 2013 legislative session, the requirements for a legal change of sex changed. Prior to that modification, only those persons “whose sex has been changed by a surgical procedure” were able to receive a judgment that changed their sex, and thereby obtain a birth certificate changing their gender marker. The new governing statute is as follows:

A court * * * may order a legal change of sex and enter a judgment indicating the change of sex of a person if the court determines that the individual has undergone surgical, hormonal or other treatment appropriate for that individual for the purpose of gender transition and that sexual reassignment has been completed. (ORS 33.460).

The big change is that surgery is no longer necessary for a petitioner to obtain a legal sex change judgment. This amendment was viewed as a huge success for transgender individuals because many do not want or cannot afford sex reassignment surgery in order to transition. Indeed, surgery is contraindicated for some individuals. Instead, what may be appropriate for an individual petitioner is hormone treatment. It may be that neither surgery nor hormone treatment is appropriate but that some “other treatment” is. It may mean psychiatric therapy, or it may be ordinary “talk” therapy, which can be provided by a non-doctor. Appropriate treatment could be simply living as a person of the sex opposite of that assigned at birth for a period of time. The key, it seems, is that what is appropriate must be determined in consideration of the individual’s unique circumstances.

In Multnomah County, a petitioner may use pre-approved forms for all pleadings in an identity change. The packet contains a declaration setting forth that the specific requirements of the statute have been met. If the petitioner has signed the declaration, and no one offers evidence to controvert the declaration, and there are no concerns that the petitioner did not have capacity to execute the declaration, the petition will be granted. Essentially, sex change petitions are handled in the same manner name changes, which also generally are granted on only a declaration. Some judges do the identity docket in open court. Others prefer to review all the petitions in chambers while the petitioners wait in the courtroom. And, speaking of name changes, Multnomah County has forms for that common situation where both gender and a name change is sought. The form may be modified for those jurisdictions that do not have a blended form.

In other jurisdictions, judges have been requesting a doctor’s note rather than or in addition to the declaration of the petitioner. Although I do not necessarily agree with that procedure, I would recommend that if further documentation is required and if a doctor has not been the transition care provider, the petitioner offer evidence to demonstrate that the person providing the transition care has the expertise to provide treatment to persons undergoing sex reassignment, in addition to the letter setting out that the petitioner has undergone appropriate gender reassignment treatment. As for the statement of the transition being “complete,” how that is handled may differ from one judge to another, so check with the court clerk in advance to see what is expected as the judge may require that a specific category of third party provide that.

Some final notes. These days, young people whose gender identity does not match that assigned at birth are more comfortable with sharing their recognition of this reality at an earlier age, and/or are being taken more seriously when this news is shared. Thus, a gender change may be sought by a minor. In that case, the process for appointing a guardian is the same as for a minor seeking a name change.

And, in light of people’s changing perceptions of the meaning of gender identity, already petitioners are looking to the courts to change a gender marker from either male or female to “other” or “neutral” or some other non-binary marker. How that will be resolved by a judge is likely to be determined on a case-by-case basis until there is some guidance from our appellate courts.

And, finally, in some cases, the docket containing the petitioner’s current name and gender may be posted on the courtroom door. Because the identity docket tends to be done as a “cattle call,” chances are good that others who are waiting for the docket will see the incongruence of the name of the docket and the appearance of the petitioner seeking an identity change. In the courtroom, the judge or the clerk may call out the current name or type of identity change sought. This may cause grave discomfort for the petitioner, so it would be wise to know in advance how the docket is handled. A prepared client is a more satisfied client.

The Honorable Michael C. Sullivan, Senior Judge (retired), Deschutes County

1. If you want all the court staff at your courthouse to know you, just be rude to one of them. Suggesting Court staff are overpaid and asking for extra help is not productive. Although Judges may forget or forgive bad behavior, staff does neither.

2. Bring your calendar with you when coming to court. If a matter needs to be set for a hearing or trial, it expedites the process.

3. Submit Exhibits/Witness lists to the court recorder before the hearing with a copy as well for the Judge. Do not rely on the court clerk to mark your exhibits for you or prepare an exhibit list.

4. Don’t have your clients contact the Judge’s chambers with their questions.

5. Remember to include the position of the other side when requesting a continuance or other immediate relief.

6. File appearances and substitution of counsel as soon as possible so notices go out correctly.

7. As soon as a case settles, notify the schedulers.

8. If you are scheduled to be in two or more court rooms at the same time, be sure to let staff know so they don’t have to look or call for you.

9. Hearing or trial notices should be looked at and read.

10. If you have a witness or party appearing by phone in a court room, bring your credit card as you will be paying for that call. Please be familiar with and how to use the credit card. Do not ask or direct the staff to make your calls.

11. The courts are not required to supply you with equipment during your presentation. If you request to use court equipment make sure you know how to use it and do it in a timely manner.

12. If you must approach court staff during a hearing, please ask first if you can talk to them. The recorders are trying to make a good record and prepare log notes. It is very distracting when you approach court staff in the middle of another hearing and start talking to them.

13. If you have something before the court and you file motions or other documents late, please have courtesy copies for the judge and the other attorney.

14. Making faces or announcing your displeasure with a Judge’s ruling always seems unprofessional to a Judge and a jury.

15. Being unprepared is particularly noticeable to a jury.

16. If you are unkind or rude to the other side, it hurts your case with the jury.

17. Video presentations in court fail almost half the time. Make sure the equipment is actually functioning before attempting to use it. Always have a Plan B in the event it does not operate in the manner expected.

18. Don’t force the staff to retrieve you and your client at the end of a break or lunch. Being late after lunch because the service was slow is not a good excuse.

19. Please do not under estimate the length of your trial or motion to get a faster hearing. It is counterproductive and in many cases takes longer to get the matter resolved.

20. If you are done with a hearing and another one is starting, please take your client and others you need to speak with to the lobby.

21. If you have security concerns please advise the staff as soon as possible. Don’t complain about security lines etc. We want people to go home safe at the end of the day.

22. Remember to silence your cell phone in court. Inappropriate rings may seem funny to you, but not so much to folks who have their future at stake.

23. Advise your client how to dress appropriately in court. Profanity on T shirts, etc. are not appreciated by the court. My remedy is have offenders come back the next day.

24. If there is an issue in court, please don’t blame your administrative assistant publicly. It may be true, but it almost always sounds bad.

25. Your credibility with the court is important. Never say or do anything that would cause the court to question your ethics.

The Honorable Michael McShane, US District Court

1. Use PowerPoint as a crutch.

Let’s face it; there is nothing worse than public speaking. Public speaking requires you to prepare and remember your remarks and you are expected to present them in an organized manner. And if your public self is one prone to incoherent mumbling at a volume level that can only be heard by those sitting in the front row (nobody sits in the front row), how will your audience ever know what you are talking about?

PowerPoint fixes all of this. By simply dividing your speech into little blocks called “bullet points, you are able to talk as if your mouth is full of marbles. If you get nervous and lose your train of thought, thankfully it is all organized on a giant screen right in front of everyone. All of your faults as a public speaker are forgiven by using PowerPoint. How can it possibly be any different in front of a jury?

2. Assume that your audience expects a PowerPoint.

Why be a boring storyteller when you can wow the jury with a visual extravaganza that erupts with every sentence that comes out of your mouth. Every juror under the age of ninety expects you to use technology in a speech in today’s modern world. Storytelling is for lame kids sitting around a campfire, people with imagination, and Homer (the Greek Homer; not the one from Springfield).

It’s so like yesterday. It’s so like… Greek.

3. Animate the hell out of every slide.

When I am giving a closing argument and I’m focusing on a particular jury instruction, I don’t want to just show the jury the instruction on a slide, I want it to come to life like Frankenstein from the grave before their horror-struck eyes. It will bounce, it will cartwheel, and it will vaporize into smoke for 15 seconds until it appears before them on the screen with flashes of lightening.

4. Assume you will figure out the technology in the courtroom when you get there.

Nothing impresses the jury as much as watching you rummage through your briefcase for a HDMI cord because you assumed there would be one in the courthouse. Despite the reduction in court personnel over the last decade, you can be confident that there will be an IT expert waiting expectantly in the back of the courtroom to assist you with your every need. And please wait until the beginning of your opening statement to set up your projector…

• on the table that is nowhere to be found
• with an extension cord that is two feet short of an outlet
• that is to project on a screen that invariably cannot be seen by half the jury

We have all the time in the world. Watching you crawl under the table to find that outlet might be the most interesting part of your presentation.

5. Do not sterilize your laptop’s desktop screensaver.

If you have cute children, why shouldn’t the jury get to see them as a screensaver or as the background to your desktop? If you don’t have cute children, then just find some pictures on the internet of cute children or maybe a kitten or a puppy. Jurors just love cute things and, as such, they can only love you. Accidents happen; they will not assume that this is a tasteless ploy at using your children and pets as emotional hostages.

It also helps to leave files with subliminal messages scattered across your desktop. For instance, if you are a DA trying a shoplifting case, increase your gravitas by having a visible file titled “rapist.pervert. It makes you look serious.

If you are a public defender and you have no case, then I would suggest a file entitled “jury/nullification/hail.mary.

6. Compete with your PowerPoint slides.

Put up slides that require intense concentration on the part of the jury. I recommend a slide that requires the jury to take a survey of at least twenty questions. While this is going on, see if you are the kind of speaker that can command what normally would be the jurors’ divided attention. Begin the slide by saying, “I now want to focus on the pivotal issue of the case.

7. Keep a slide up at all times.

This is a very effective tool that is appreciated by the jury. When you are talking about the importance of circumstantial evidence, by all means leave up the slide of the severed head you referenced three hours ago. The longer that slide remains up, the more the jury stays focused on what you have to say.

They will not hate you for ruining their lunch.

8. Do not allow opposing counsel to preview your slides.

PowerPoints are fun because nobody knows what is coming next. They are like birthday presents and everyone likes to be surprised on their birthday. Why should opposing counsel and the judge be any different? After all, PowerPoint slides aren’t evidence. Who could possible object? See State v Reineke, 473 OrApp 299 (2014).

9. Keep the jury focused on the screen.

Having the jury focus on the screen rather than you is the sure way to cover up both your shortcomings as a speaker and any pesky hygiene issues you might be worried about. You don’t like to shave or wear matching socks… no problem. Nobody is looking at you. You are clutching the podium with rock climbing strength and pouring out enough sweat from your drenched armpits to fill a California reservoir. Clutch and sweat all you want because it’s all about the slides.

10. Weed out the elderly, the disabled, the easily distracted, the culturally sensitive, and anyone who does not share your political humor.

You are sophisticated and quirky so reflect that in your slides. They should be presented in such a way that only prep school elites with the eyesight of a raptor and the vocabulary of Charles Dickens will understand. Use small print (times new Roman only). Use grayscale in such a way that the contrast between words and background is lost because this is the way Stanley Kubrick would have done it. Use obscure quotes by French existentialists and recite them with a wry sense of weltschmerz as you look wistfully out the window at the falling leaves.

And yes, by all means, display at least four passages from Kafka before ending with a picture of a single black bird set off against a field of rye.

We get you. We really do.

The Honorable Matthew Donohue, Benton County Circuit Court

In the Judge’s Corner posting of June, 2015, Judge Acosta provides an excellent explanation of the issues that attorneys must consider in order to effectively communicate with a jury. I am writing this posting to further address one aspect of that issue: the effective presentation of evidence to a jury at trial.

The time between the completion of discovery and the beginning of a jury trial is the time in a case when a lawyer must create a persuasive trial presentation from what is often a disparate mass of raw evidentiary material. If done well, a successful evidentiary presentation will provide the jury with an informative, persuasive, fact-based narrative that they can easily understand. While there is no magic bullet strategy for ensuring success there are some things that an attorney should consider whenever developing trial evidence in order to maximize the chances of successfully presenting their client’s argument to a jury. This post will address some of those pre-trial evidentiary issues as well as evidentiary considerations at trial.

The first step to success is to understand the rules governing your evidentiary presentation. Ignorance of the evidentiary and procedural rules that apply at trial leaves an attorney vulnerable to everything from appearing to the jury to be disorganized and unprepared to the exclusion of critical evidence due to a violation of procedural rules. Of course, any trial attorney worth their tasseled loafers is going to understand the evidentiary and procedural requirements of the Oregon Evidence Code, Civil or Criminal Procedural Rules and Uniform Trial Court Rules. However, these may not be the only evidentiary rules that will apply at trial. In order to get a complete lay of the regulatory terrain consult the court’s supplemental local rules to determine whether any local procedural restrictions apply. In addition, review any case scheduling orders or other procedural information from the judge to have a clear understanding of pretrial evidentiary deadlines, courtroom practices and judicial preferences. Finally, contact the judge’s chambers and confirm the procedural “nuts and bolts” such as the appropriate procedures for exhibit numbering and presenting evidence for admission.

The next step toward a successful evidentiary presentation involves developing a case narrative. Without a coherent narrative explaining your client’s situation, a jury has no cognitive framework that they can use to organize the evidence you will present. The first step to developing a successful narrative is to understand the needs of your audience. By the time a case gets to trial most attorneys have spent hours reviewing the pleadings, conducting discovery, prepping themselves on the applicable law and identifying, collecting, and organizing evidence. However, your audience at trial (i.e. the jury) hasn’t done any of that. Instead, they have been dropped into an unfamiliar environment without any significant preparation and told they have to make a critical decision about people they have never met based on evidence they are about to see and the testimony they are about to hear. A successful narrative therefore involves explaining the case and your client’s position to a group of individuals who know nothing about the case, have probably never met you before and usually have no idea (until they are given the jury instructions at the end of trial) what you are talking about when you use legal jargon like causation, negligence, beyond a reasonable doubt or knowingly.

The second step to developing a successful narrative is to create a compelling story for that audience. Stories are how we have informed, entertained and persuaded one another since pretty much the dawn of human communication. And putting on a juror badge doesn’t change that dynamic. A good narrative involves identifying the legal facts and then turning them into a linear story that a non-lawyer can understand and that they will find interesting. Doing this is much more art than science and explaining it in a short Judge’s Corner post is pretty much impossible. However, there are a few essential elements to a narrative that, in my observation as a judge, are critical to a jury. The first is connecting on a level of mutual understanding. You cannot tell jurors a story from the perspective of a lawyer because, as a general rule, they are not lawyers. They are, however responsible members of the community who are capable of making complicated and sophisticated decisions and your narrative should be presented to them from that perspective. The second is context. Launching into a story that starts the day of the critical events leaves the jury with no understanding of the parties’ lives or circumstances or of the chain of events which brought them to trial. A juror cannot empathize with someone they do not know. Finally, a good narrative must move progressively along the human scale of time (i.e. minutes, hours, days, weeks, months, years), not the case scale of time (i.e. Event A, Event B, Event C, etc.). A successful narrative should therefore order the case events along the human time scale. A good barometer as to whether you have successfully accomplished the task of creating a successful narrative is to get two or three non-lawyers from your office (or a few non-lawyer friends if you are a solo practitioner) together and tell them your story of who your client is, what happened in the case, and why this chain of events leads to them making a decision in your client’s favor. If they give you a bunch of puzzled looks, or if they start asking you to define words that you used or explain gaps in your story, you still have some more work to do.

Now that you have developed your narrative, you can start organizing your evidence to support it. First, identify the relevant evidence supporting your narrative. Next, identify the weaknesses in your evidence and evaluate the best way to address them in the narrative. If the evidence all lined up in your client’s favor you probably wouldn’t be going to trial. Every trial for which I have ever prepared, and every trial that I have observed as a judge, has involved at least one unfavorable fact for each party or one significant gap in the evidence that they need to prove their case. Many lawyers tend to avoid discussing these issues with the jury at the outset of their trial presentation. However, jurors are individuals who have made serious, complicated decisions in their lives and have often done so without all of the information that they would have liked to have had at the time. If the issue is an evidentiary gap, identify circumstantial evidence that supports your client’s position and include that in your narrative. If the issue is unfavorable evidence, provide an explanation, in common-sense terms, as to why it exists. Acknowledging to the jury at the front end of the trial that you do not have an “air-tight” case or that your client is a human being who has made mistakes is generally a much easier conversation to have with them than trying to explain in closing argument why you gave them a highly selective rose-colored version of the facts that your opponent successfully undermined with evidence or inconsistencies that you consciously ignored.

Now that you have developed your case narrative and organized your evidence, the two need to be integrated into an effective opening statement. While the jury may have learned a bit about your client in voir dire the opening statement is your first opportunity to introduce your client and your case to the jury. A good opening statement narrative therefore should focus on your client, their situation and the reasons why they should prevail. Your opening statement should also explain how the evidence that will be presented at trial supports the narrative. This will provide the jury with some sort of understanding as to what evidence they will be seeing, why they will be seeing it and how it supports your case. Also, be sure to save any explanation of the law governing the case for closing argument because any attempt to explain the legal justification for your client’s position at that point may confuse the jury (because they have not yet been instructed in the law) and potentially earn you an admonition from the judge about waiting until the jury instructions are read before discussing the law to apply to the case.

After developing a good case narrative and presenting it to the jury at the time of opening statement, you next have to get the evidence to the jury that supports your story. If you tell a jury in your opening statement that you will show them a piece of evidence that is critical to your narrative and that piece of evidence doesn’t get admitted, you have some serious explaining to do during closing argument. One of the more effective ways of avoiding this situation is to confer with opposing counsel prior to trial regarding stipulations as to the admissibility of non-expert evidence. Some attorneys don’t like to confer because they believe doing so may prejudice their client’s case by providing the opposing party with a preview of the evidence that they will present at trial. This however ignores the fact that both parties usually have identical sets of discovery in front of them at the time of trial. Conferral which results in most of your evidence being admitted unchallenged will eliminate the need for you to develop a bunch of unnecessary admissibility arguments. If conferral isn’t successful, it may still improve your chance of getting your critical evidence admitted by giving you a more accurate understanding as to the level of preparation that you will need to do to get critical evidence admitted. Either way, pre-trial conferral on evidentiary objections will maximize the probability that you will be able to efficiently present your critical evidence to the jury with as few evidentiary objections as possible.

If pre-trial conferral on evidentiary objections is not successful, consider resolving disputes on admissibility prior to trial. In my experience, jurors can get a bit peevish if they are not kept informed as to the progress of a trial particularly when it involves them being repeatedly removed from the courtroom for what appears to be no good reason at all. If you have a significant number of evidentiary issues to address, or believe that your opponent will raise a significant number of evidentiary objections at trial, consider filing a pre-trial motion in limine in order to address as many evidentiary issues as possible. If you have identified numerous potential evidentiary objections that are not suitable for a motion in limine, have a conversation at trial with the judge and opposing counsel regarding explaining to the jury the reason for evidence-based delays.

After determining the admissibility of your evidence, you must decide how much evidence to present to a jury and when to present it. This requires considering two competing goals. The first is to keep the jury focused on the testimony of your witnesses. The second is to maximize the impact of any admitted evidence by relating it to live witness testimony. An ideal balance is to present critical evidence to the jury contemporaneous with relevant witness testimony. If done successfully, jurors will consider the witness’s testimony and the evidence presented to them during that testimony as one seamless stream of information. While the precise method for developing this balance, like the method development of a good case narrative, is beyond the scope of this post, there are some important issues that should always be considered. The first is how to integrate evidence with witness testimony. If the evidentiary document is not too long or complex to allow a juror to review it without distracting them from the witness’s testimony publish it immediately. This will improve the probability that they consider it during their deliberations in the context of the witness’s testimony. As a general rule of thumb I recommend that an attorney always publish photos and never publish contracts. Everything in between is pretty much a judgment call. In those situations where a large number of complex exhibits are necessary, create a binder of those exhibits for the jury with an index. During witness testimony refer to the documents consistent with the title of the document in the index as jurors may make a note of your reference which will allow them to easily access the document once they retire for deliberation.

The next consideration involves determining the amount of information to present to the jury. Jurors are human beings with the same limitations that we all have for assimilating information. This means that even live witness testimony supporting relatively uncomplicated evidentiary exhibits is subject to a law of diminishing returns. If you have ten photos of the car accident or crime scene and only three or four of them are necessary to give the average person a complete understanding of the information that you are trying to convey, providing all ten to the jury, even with witness testimony, runs the risk of jurors missing critical details that may be buried under a mass of redundant information.

Having presented your case narrative and evidence to the jury, you now have to tie everything together in your closing argument. If possible take a break after the presentation of evidence (or after the presentation of jury instructions if you are in a jurisdiction which presents jury instructions prior to closing argument). Confer with your client and discuss the big issues that you think need to be addressed at closing argument. After conferring with your client, review your opening statement to ensure that you address all of the evidentiary points that you previously raised. In your closing argument, confirm the presentation of evidence mentioned in your opening statement and explain how it fits into your opening statement narrative. Discuss any evidentiary gaps in the context of circumstantial evidence and have a conversation with the jury as to how they should interpret those gaps consistent with the laws of circumstantial evidence presented at trial (assuming, again, that you are in a jurisdiction that presents jury instructions before closing argument). If the evidentiary documents submitted are voluminous walk them quickly through your theory of the case as it pertains to the critical exhibits, being sure to tie the most relevant exhibits to testimony whenever possible. You also may want to re-publish critical evidence admitted contemporaneously with witness testimony in order to give them an opportunity to review it in the context of your legal argument.

In providing the advice above, I am not advocating for creating a one-size-fits-all approach to presenting evidence at trial. Every trial attorney must develop their own method of explaining their case and presenting evidence to a jury. However my observations in the courtroom have demonstrated that these issues are frequent and persistent barriers to attorneys effectively and persuasively presenting and explaining their evidence to a jury. I therefore believe that an attorney should at least give them consideration when preparing for trial.