How to succeed in the court room is an art form filed with strategy and tireless preparation. Let’s take a few minutes to give you a fast overview of the process. Perhaps you are a non-lawyer looking to represent yourself (pro se) and want a better idea of what lies ahead, or perhaps you are in law school and are embarking on a litigation skills program and want a big picture perspective. Whatever the case may be, it is helpful to understand the basics of trial advocacy. In this Insider Tips edition of The Law Insider, we will present a very high level summary of the legal process as well as an overall view of trial preparation.
A trial is, on the one hand, a battle of ideas and on the other, an involved and complex process in which the law is applied to the facts. The duty of the advocate (typically an advocate) is to artfully extract the raw facts of his or her client’s story and transform it into a logical and convincing argument. To do this, the advocate must also anticipate the claims and defenses of his/her opponent and designs a convincing counter attack. Next, the advocate must understand the burden of proof at issue in the case. The burden of proof is most easily explained through example. In a US murder trial, the prosecution has the burden to prove “beyond a reasonable doubt” that the the defendant is guilty. This means that the prosecution must present a case to the jury that leaves no reasonable doubt that the client committed the crime in question. Conversely, this means that the defense does not have a burden of proof but rather the “benefit of assumption” and therefore needs only create ANY reasonable doubt to prevail. In order to build the case and meet the burden, the advocate must decide which admissible evidence to use and which witnesses to select. The opposing side must be relied upon to do the very same thing. At least in theory, this system is thus designed to pit each idea and witness against the next, a distilling process by which the truth should emerge.
Substantive Law and the Rules of Evidence and Procedure
How do these things relate? In a courtroom, arguments with purely moral underpinnings do not survive by themselves, but rather must be tied to a statutory or legal underpinning. Therefore, the advocate must divide his or her case into legal elements or issues (i.e., substantive law). Then the advocate must link up the appropriate piece of evidence in support – or detraction of the opposing side’s – legal argument. For example, saying a defendant is often late to work can only be introduced in a traffic accident case if it can be connected to the legal claim that the defendant was likely negligent, making rushing through traffic lights a relevant piece of evidence in the case. Finally, trial procedure ensures that the case is presented in an orderly fashion. This is an important element (often neglected by television court dramas). Cases with lots of merit can be dismissed solely due to a failure to abide by the court’s procedures.
Generally, after pretrial motions are considered, and the jury has been selected, the case will begin with opening statements. This is the advocate’s first time to address the jury. Here, it is appropriate to provide an overview of each side of the case, explaining how the evidence will prove his or her side of the case. For tips on How to Deliver an Opening Statement, click here.
After opening statements are done, the testimonial phase begins whereupon witnesses are called to testify. First, the plaintiff calls witnesses for direct examination. At the completion of each direct exam, the opposing side can cross-examine the witness (limited to the scope of the direct). This is followed by a redirect by the plaintiff. The process is repeated until the plaintiff is done calling its witnesses. At this time, it is said that the plaintiff “rests.” Then the defense calls its bench of witnesses and the processes repeats.
After the testimonial phase is complete, the lawyers have a final opportunity to address the jury with closing arguments. Here, the advocate summarizes the case in the light most favorable to his/her client, reexplains the burden of proof, and makes every effort to make a logical AND emotional push for a favorable verdict.
Now you have a basic, if not crude, understanding of trial theory and process. Search The Law Insider for further detail on individual components, like How To Impeach A Witness. Amazon.com also sells some great Trial Skills videos and books.