Last week I noted that I would be assisting with the AAJ Regional Trial Competition held in Omaha. I served as a judge for what was, in my view, a very close round between two good teams. Here are some of the trial tactics I was reminded of:
- Do not assume the presiding judge knows your case as well as you do. This particularly true when responding to an objection as to relevance. In order to win the objection the judge must either independently see the relevant nature of the evidence. If not, it is up to you to explain it. Which inevitably leads me to number 2 . . .
- When making a relevance objection you should consider asking the judge to hear the opposing party’s response at the bench. In order to explain why the other side thinks an item of evidence is relevant they must, in essence, give a closing argument. If you allow the jury to hear opposing counsel do that, and the judge ultimately agrees with you and keeps the evidence out the jury may be influenced by the losing argument. If the judge disagrees with you and ultimately let’s the evidence in the jury, without having the heard the explanation, may never pick up on the relevance and may not hear about it if it does not make it into the closing argument.
- You must try to limit an adverse witness’s ability to say what they want on cross. You do this by controlling the witness who wants desperately to expand beyond the scope of what you asked. Without a doubt this is the single most difficult thing for law students and many lawyers to learn. But without doing so the evidence you want the jury to absorb is cluttered with the other side’s spin. Because it is difficult many lawyers give witnesses too much leeway; hoping, it seems, that exposition will be short. It rarely is. In fact, the longer you let it go the more it happens.
I always find it rewarding to watch trials; even pretend trials tried by law students. It can serve as a good reminder of what works and what doesn’t. It is also nice to have the perspective of observer rather than being in the line of fire.