One of the cornerstones in trying a good case is pacing. The attorney who proves everything proves nothing. It’s imperative that your case be pared down to its essential elements and presented concisely.
Here (concisely) are some ideas for improving your trial pacing:
1. Use summaries of writings. As a general rule of thumb, any element of proof that requires more than ten documents to prove should be summarized. See Fed R of Evid §§1006, 1523(d) (authorizing use of summaries).
All you need to do is to make the underlying documents available to your opponent (they don’t even need to be put into evidence). You can:
- Have a witness (usually your paralegal) provide an oral summary; and
- Prepare summary charts and admit them into evidence.
The state rule, Evidence Code §1523(d), permits summaries of numerous accounts, but also less-than-numerous other writings that would cause a great loss of time if they were required to be produced and examined in court.
The use of §1523(d) is only limited by the imagination of counsel. Generally, if you find in discovery and trial rehearsal that any of your case bogs down because there are too many documents, figure out a way to summarize them for the jury. Keep in mind that your written summaries are admissible into evidence and can go into the jury room.
2. Limit what you prove. Paring down your case has two good effects:
- The jury will be grateful; and
- If your ancillary causes of action were weaker than your main cause of action, you may avoid losing credibility with the jury by coupling a strong claim with weaker claims.
Some attorneys believe you should never waste time proving weak claims, using weak proof to buttress your claims, or anticipating opposing counsel’s case by disproving it in advance. Although this can be taken too far, it’s worth thinking about.
3. Organize your documents. The longest five minutes in the world is the five minutes you spend looking for a hard-to-find document in the jury’s presence. The solution is hardly unique: Get yourself organized in advance of the trial. Make sure you have a well-organized trial notebook.
Organization boils down to one cardinal rule: In advance of trial, list in writing all your proposed exhibits (premark them if the court permits) and arrange them chronologically. Have an original and four copies in court with easy-to-list tabs, and keep one copy back in the office.
Get more practical advice on mastering various trial skills in CEB’s Effective Direct and Cross-Examination, chap 13.
Other CEBblog™ posts you may find useful:
- Key to Conducting an Effective Trial: Organization
- Your Trial Notebook Starts with Your Files
- Logging Your Exhibits Without Getting Logjammed
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