Today, very few cases go to trial, as most cases will settle out of court, but this past year, I had the great fortune to participate in a FINRA (Financial Industry Regulatory Authority) arbitration and three bench trials — one Superior Court trial and two Land Court trials. After speaking with Massachusetts Superior Court Chief Justice Heidi E. Brieger last fall about the Superior Court’s policy statement regarding new lawyers, which encourages lawyers to take affirmative steps to promote the participation of less senior lawyers in courtroom proceedings, I set a 2023 goal to actively seek cases that I knew were going to be tried during the year. Each trial I learned new skills to improve my advocacy skills and case presentation to the judge. I also learned the benefits and drawbacks of preparing for a trial. Thus, as a lawyer with very little trial experience before 2023, I would like to share some important takeaways to ensure that my fellow associates are positioned for success. Below are five takeaways for presenting an effective case at your first trial:
1. Know Your Audience. The first rule of a successful bench trial is to know your audience — do you know this judge’s background and experience? Do research on the judge before trial. Talk with colleagues at work or friends to discover what practice the judge likes, encourages or dislikes in lawyers (e.g., whether the judge is unforgiving with the rules of evidence in a bench trial; whether you have to follow a trial order exactly with respect to witness order, exhibits and issues; whether the judge questions witnesses; and whether the judge will want proposed findings of fact and proposed rulings of law before or after trial). You should learn the judge’s behavior ahead of time to prepare as best you can in advance of trial (and to impress your client).
2. Witness Preparation is Key. You will want to spend a significant amount of time preparing an examination outline for each witness. You will need to prepare an outline for each witness in advance. The outline should include a series of bullet points listing the evidence that you plan to introduce through the witness.
Most of your time during witness preparation sessions will be devoted to preparing each witness for direct examination testimony. You will want to carefully determine what questions and documents you want submitted into evidence through your witness. You may also want to consider bringing out weakness during the direct examination of your witness to prevent any surprises on cross-examination (e.g., addressing whether your client has had inconsistent testimony and affidavits to prevent impeachment). Remember that direct examination questions should be direct, to-the-point questions (Who, What, When, Where, Why).
To prepare for cross-examination testimony, determine what points you want to make on cross and know the evidentiary basis for each question you plan to ask before trial. You should review key exhibits and events about which you anticipate the witness will be asked. A good starting point is the deposition transcript or other recorded statements of the witness to identify inconsistent statements about which you expect the witness to testify. Cross-examination can be used to build up favorable witnesses, corroborate favorable testimony, obtain admissions, minimize the witness’s credibility, and minimize or destroy the witness’s testimony. Your cross-examination outline should include short, understandable leading questions in the form of statements.
3. Use of Exhibits and Chalks at Trial. Exhibits and chalks should be used efficiently and effectively at trial. The court will typically require the parties to exchange exhibit lists to determine whether they can agree on admissibility in advance of trial. If there is no genuine dispute as to the admissibility of an exhibit, stipulating to its admissibility will allow the parties to avoid laying a foundation for that exhibit at trial. While you can certainly raise objections to the admissibility of exhibits when an actual dispute exits, it is often the best strategy to limit your objections to documents for which legitimate objections exist and that are essential to the triable issues. Though a party agrees to the admissibility of exhibits, you should still provide some foundational information that will assist the judge in understanding the importance of the exhibit. It is all best practice to introduce an exhibit through a witness who can explain the exhibit’s importance to the case. And you should never introduce documents without testimony to support them. A disputed exhibit must be marked for identification, and you will be required to lay the foundation of the exhibit by eliciting testimony to establish the requisite foundation before formally offering the exhibit into evidence. If there is no objection, the court will admit the exhibit, but if there is an objection, the court will typically call the parties to sidebar to discuss the basis for the objection before ruling on the exhibit’s admissibility.
Chalks at trial can be extremely powerful if used effectively. Chalks such as a graphic depiction of evidence or a diagram or model can point the court to certain events or evidence. Chalks are not part of the evidentiary record and cannot be used to prove an essential element of a case. The trial judge has considerable discretion when determining the degree to which chalks can be used at trial.
4. Preserve the Record with Objections. It is important to object at trial to establish an appropriate record for appeal. You must listen to each question carefully to determine whether it is objectionable. Remember you must stand when you are making an objection. Object only when you have a good reason to keep evidence out. You should know the basis to object to the form of questions, the basis to object to the substance of testimony, and the basis to object to exhibits. Be poised to object to each question in a timely fashion, avoiding the need to file a motion to strike. Your tone of voice in making an objection is important (just as your tone is during the rest of the trial). A neutral tone is generally best. Your demeanor is also important. You may need to adjust your demeanor based upon the judge’s rulings (which sometimes can be frustrating if it is not going your way!).
5. Prepare to Be Flexible. No matter how hard we prepare, we cannot anticipate all the surprises at trial. You must be flexible enough during your planning to allow for and to incorporate these surprises. Have a plan and strategy for your case, but be prepared to modify the plan based on the judge’s suggestions, questions or direct requests, and even surprised testimony during an examination of a witness.
I am grateful for having had the opportunity to participate in four trials this past year. And I am thankful for working at a firm that encourages young lawyers to take on speaking roles at trial. Partners and associates need to be willing to work together to ensure that newer lawyers have an active, engaging and speaking role at trial and other courtroom proceedings, as real-world experience is required to master successful witness examination and persuasive arguments.
Nicole J. Cocozza is a senior business litigation associate at Prince Lobel Tye LLP who represents clients in commercial litigation, business litigation, financial services law, and other areas of complex civil litigation. She currently is a member of the Board of Directors of the Massachusetts Bar Association Young Lawyers Division, where she currently serves as chair-elect and as co-chair of the law student committee.