Defense counsel beware! Buried beneath numerous cases you take into the courtroom are a few strategic pitfalls - inherent in the defense position - that are difficult to see and easy to fall into. The challenge is to identify those land mines and carefully maneuver around them.

Pitfall Number One: Letting plaintiff set the agenda for the trial

Going first gives plaintiff the opportunity to set the agenda , if defense allows it Going first is a great advantage for the plaintiff. Jurors are most alert when a trial first starts; they remember better what they hear in the beginning. Most important, going first gives plaintiff the opportunity to create the setting out of which the whole case will be tried.

And unfortunately, the traditional courtroom format encourages plaintiff to do just that, i.e., steal the agenda for the trial. According to the traditional format, plaintiff tells his story and defense defends against it. This format works to the advantage of plaintiff and disadvantage of the defense, because it encourages the defense to focus solely on plaintiff's case. And the more attention defense gives plaintiff's case, the more attention the jurors give it. By the end of the trial, the jurors have been saturated with plaintiff's case. Consequently, when the whole trial is focused on plaintiff's case, it is difficult for the jurors to dismiss plaintiff's case as insubstantial.

Traditionally, defense counsel gets her opportunity to slam the plaintiff's case in cross-examination. The great challenge for defense counsel is to manipulate plaintiffs' witnesses under cross-examination into admitting that plaintiff's story is untrue, or has loopholes in it, or cannot be substantiated. In so doing, defense counsel continues to concentrate on plaintiff's case, in counsel's attempts to ferret out its weaknesses.

Cross-examination, according to tradition, is the time for defense counsel to come out swinging, with all her ammunition, to win the case. Often times, after a brilliant cross-examination, the defense team can be heard chuckling to themselves about how counsel outsmarted and outmaneuvered plaintiff's witness, reducing the witness to mush. But just as often, unfortunately, when we interview jurors after a trial and quiz them about counsel's cross-examination coups, they don't know what we are talking about. Often times, those flashes of brilliance have gone right over the jurors' heads; missed their target; and live as victories only in the minds of the attorneys.

Emphasize the defense's story, not the plaintiff's


Just because an exhibit is low tech and low budget does not mean it is less persuasive than a more technologically sophisticated exhibit.
One medium of preference are magnetic boards. They are relatively inexpensive to produce; they are professional, but not "slick;" they put the attorney in the center of the picture; they allow the attorney flexibility in pace and delivery; and they create suspense and drama around the attorney’s presentation.
For those who struggle within the constraints of a limited budget to represent clients in as effective way as possible in the courtroom, low tech is not only an alternative to high tech, but can be a preferable alternative.


go to printable document