Podcast - Trial Advocacy in the Modern World

Dan Small: In 1924, the great Clarence Darrow defended Nathan Leopold and Richard Loeb, the teenage sons of wealthy Chicago families who were accused of killing a 14-year-old boy in what was called the trial of the century. Darrow gave a closing argument that lasted for 12 hours. You heard me right. 12 hours. And in so doing, he succeeded in saving the defendants from execution. The closing was so popular that it was published for years afterwards. It may have been brilliant, but it sounds bizarre by today's standards. We live in a different world than a hundred years ago, or even 20 years ago. A series of technological changes, most notably the development of television, and then cable television and then the internet, have revolutionized how we communicate with each other. Somehow, though, trial lawyers have largely lagged far behind. Three trends in recent years have dramatically changed how lawyers should approach courtroom advocacy.

The first trend is the digital revolution. Developments in technology have profoundly affected the courtroom. It is dramatically easier to organize and display evidence, and there is often more evidence from which to choose. Collecting emails can be a crazy adventure. How many thousands or even millions of emails do you have?

Today's jurors are accustomed to and expect high-tech presentations and compelling imagery. And often it's the only way to go when the numbers of documents or emails or text messages are so high. The idea of standing up in front of a jury and just talking for 12 hours is unimaginable today. No judge would allow it, and no one would be listening anyway. The jury would have walked out hours and hours ago, and who could blame them? But talking for an hour, or even half an hour, without visual aids is just as out of date.

Beware, however, of getting too caught up in technology to use it effectively. For example, just because you can show lots of documents doesn't mean that you should show lots of documents. Too often we see lawyers flashing too many documents across the screen too quickly. It becomes like a strobe light or a light show, losing whatever impact the documents themselves may have had. Using technology requires just as much judgment, strategy and common sense as old fashioned paper. Maybe more, actually.

Having more options requires making more choices, which in turn requires more thought and more planning. If a document is important enough to put up on the screen, take your time with it. What is it? What does it say? What does it mean? What do we want to highlight? What do we want to emphasize? Why is it important? All those types of questions need to be dealt with.

The second trend is short attention spans. It's hard to focus anyone's attention on anything and harder yet to hold it for a length of time. After all, if you can't say it in a 140-character post, is it worth saying? Apparently not for a lot of people. Trial lawyers must examine and adapt each stage of the trial in that light. Long stretches of question and answer may be effective in a deposition, but they are often not effective with a jury.

Testimony has to be broken up into bite-sized pieces with exhibits, demonstratives or other tools to help deliver information with impact. The same applies to openings and closings. Too many lawyers seem stuck in the past, speaking in ponderous jargon, rarely interrupting with visual images and droning on well past the point at which the average juror is paying attention.

The final trend is lack of trial experience. Clarence Darrow went from corporate lawyer to labor lawyer to criminal lawyer throughout his career, and yet he still tried what today would be considered a huge number of cases, including more than 50 murder trials. Today, there are fewer opportunities and many more lawyers. Over the years, in both civil and criminal law, the number of trials has declined sharply, while the number of lawyers has increased exponentially. At least it seems so. Meanwhile, litigation has become more complex, more expensive and more risky, and trials exponentially so. So wise clients often want to avoid trials, and unwise clients often need to be advised to avoid trial. As a result, a majority of litigation attorneys have little or no trial experience, and even those who do don't have as much as they need or would like.

I was amazed years ago, when I left the government after 10 years as a federal prosecutor traveling around the country trying cases, to find that there were litigation attorneys — senior partners, excellent lawyers — who had never or very rarely gotten up on their two feet and said those magic words, "Good morning, ladies and gentlemen of the jury." In fact, I was asked by the first firm I worked for to come in and take over from a couple of those partners and try cases that they had been working on in discovery and in pretrial for several years.

It is a different world. It is a different life. A majority of litigation attorneys have little or no trial experience, and even those who do don't have as much as they need or would like. The reasons for this are many, but the result is clear. Trial experience is increasingly rare. Becoming a litigation partner at a major law firm, despite little or no actual trial experience, is now commonplace. And if we exclude the criminal bar, far too few lawyers under the age of, say, 45, have any meaningful trial experience at all. Some do. Some have lots of it. But it's not the norm anymore.

It's pointless to tell new lawyers that they need more experience. The real challenge is finding creative and productive ways to get them that experience and figuring out how to do a credible job without it. A big part of that is training lawyers to adapt to modern technology and modern audiences.

Jurors are real people snatched out of their real lives and placed into an artificial environment for a few days or even a few weeks or more. They expect and they deserve to be communicated to in ways that they can understand. To try cases in the modern world, lawyers must understand and adapt to the realities of that world. After all, you cannot persuade people if they are not paying attention.