Trials are the ultimate test of a litigator’s skill, where case preparation, evidence strategy, and courtroom performance converge to win over judges or juries. This article discusses the elements of a civil trial and important considerations one should keep in mind each step along the way.
Understanding the Trial Format
Whether a case is tried before a jury or a judge (bench trial) significantly impacts how lawyers present their arguments. Jeff Leon, senior counsel at Karon LLC, notes that judges are typically more legally savvy and familiar with the case from earlier proceedings, which means lawyers can be more technical and concise.
In contrast, a jury trial requires simplifying complex legal issues and avoiding jargon. For example, terms like ‘proximate cause’ or ‘fiduciary duty’ may need plain English explanations. The best practice for attorneys is to use common-sense language that conveys legal principles without alienating lay jurors. After all, juries are made up of everyday citizens, not legal experts.
Pretrial Procedures
Pretrial procedures set the stage for trial. As Jeffrey Tenthoff of Goldberg, Miller & Rubin explains, every jurisdiction, and sometimes individual judges, have specific pretrial requirements. Tenthoff suggests starting with the pretrial order. This order often sets deadlines for pretrial statements, exhibit and witness lists, ‘motions in limine,’ and jury instructions.
Pretrial Preparation
Crafting a Trial Theme
A trial theme is more than a catchy phrase — it’s the cohesive story that ties your evidence and arguments together. Trial themes are often built early, sometimes as soon as the case is filed. They guide discovery requests, deposition questioning, and case strategy. By the time the trial arrives, the theme should be clear, concise, and integrated throughout the opening statements, witness examinations, and closing arguments. The narrative you choose to tell should resonate with the factfinder emotionally, logically, and morally. In jury trials, themes should be simple and understandable across different education levels and backgrounds.
As Andie Cox, co-chair at Luks, Santaniello, Petrillo, Cohen & Peterfriend, explains, the purpose of a trial theme is to emphasize important facts and persuade the factfinder, either the jury or judge, that your client’s case is stronger. Cox emphasizes that repetition is important throughout a trial, because people remember what they hear more than once.
Selecting Evidence Strategically
A critical task for trial counsel is identifying what evidence proves the elements of their legal claim or defense. Timothy Pastore, partner with Montgomery McCracken Walker & Rhoads LLP, emphasizes the importance of narrowing your evidence through a winnowing process. As part of this process, attorneys need to evaluate which evidence is admissible under the Federal Rules of Evidence.
The ‘motion in limine’ is a pretrial motion that allows counsel to attempt to exclude certain evidence from trial. These motions aim to prevent the factfinder from hearing testimony or seeing documents that may be inadmissible, inflammatory, or irrelevant. These motions must be used strategically; courts may revisit them during trial depending on how issues unfold.
Exhibit Management
Exhibits are pieces of evidence submitted as part of the official record of the trial. As such, each exhibit should support your theme and reinforce your narrative — not overwhelm or confuse the factfinder. Pastore suggests seeking stipulations with opposing counsel to admit certain documents by agreement. “Courts like it when parties agree on exhibits,” he notes. “It speeds up the trial.”
When no agreement is possible, attorneys must lay proper ‘foundation’ for exhibits. That means introducing testimony to show the exhibit is authentic, relevant, and not hearsay (or meets a hearsay exception). The Federal Rules of Evidence govern these processes.
Preparing Witnesses To Testify
Witnesses bring the case to life, and their testimony must align with the trial theme. “Start by making sure the witness understands the theme,” Cox recommends. This can include providing an outline of the questions in advance and conducting mock direct and cross-examinations. Witnesses must also be familiar with any exhibits they will be asked to authenticate or explain. A poorly prepared witness flipping through documents in front of the jury can undermine credibility and momentum. Preparation helps reduce nerves and prevents surprises in open court.
Tenthoff adds that defense attorneys often face the challenge of having their client called by the plaintiff early in the trial. “Be ready from day one,” he warns. Preparation is critical even if your formal case won’t start for days.
Jury Selection
Voir dire — jury selection — is more than just weeding out biased jurors. It’s the first opportunity to frame the case. As Pastore explains, “You can begin to frame your case during voir dire, depending on your jurisdiction.” Questions can be designed to test jurors’ alignment with your trial theme and values.
Jurors can be removed ‘for cause’ if they admit bias or a conflict. Attorneys also get ‘peremptory challenges ’— strikes that don’t require a reason. However, peremptory challenges cannot be used discriminatorily. For example, using peremptory challenges based on race violates the Equal Protection Clause of the Fourteenth Amendment to the Constitution — a principle established in Batson v. Kentucky, 476 U.S. 79 (1986).
The Trial
Setting the Stage with Opening Statements
Opening statements give attorneys a chance to present their theory of the case. “It’s a statement, not an argument,” Jeff Leon reminds. As such, attorneys should avoid making direct assertions and instead preface their remarks with the phrase ‘The evidence will show.’
Leon also emphasizes the danger of overpromising. If you tell the jury they’ll hear something that doesn’t materialize, it damages credibility. Stick to what you know you can deliver. Keep it simple, chronological, and connected to your theme.
Direct and Cross-Examination
On direct examination, attorneys must avoid leading questions and let witnesses tell their story. As Tenthoff explains, the goal is to gently guide the witness to share the facts that support your narrative. Exhibits should be organized and easy to reference — fumbling in front of the jury breaks flow and trust.
Cross-examination, by contrast, is controlled and surgical. “Have a theory for each witness,” advises Cox. Whether the witness is lying, mistaken, or irrelevant determines your strategy. Attorneys should avoid over-outlining their cross-examination strategy to give them the space to adapt based on how the witness performs.
Objections
Trial objections are tools to enforce the rules of evidence and protect the record for appeal. They are also vital to preserving appellate rights. If you fail to object during trial, you may forfeit the ability to challenge that issue on appeal.
“During the trial you have to decide quickly if something is worth objecting to,” Pastore notes. Strategic objections should be timely, relevant, and grounded in the rules. Frivolous or overly technical objections may annoy the judge or jury.
Closing Arguments
Closing arguments are persuasive. Here, attorneys should use plain language and rhetorical impact. A good closing argument takes the factfinder on a journey — from what they’ve heard to why it means they should find in favor of your client.
Post-Trial Motions
Directed Verdict
In the case of a jury trial, a party may sometimes ask the judge to rule in its favor regardless of the jury’s decision. Jeffrey Tenthoff explains that a motion for judgment as a matter of law (also called a ‘directed verdict’) is made when one side believes the other hasn’t met its burden of proof. These are typically made at the close of evidence.
JNOV
If denied, the party can renew the motion after the jury’s verdict, seeking judgment notwithstanding the verdict (JNOV). These motions argue that no reasonable jury could have found otherwise. It is governed by Rule 50 of the Federal Rules of Civil Procedure.
Motion for New Trial
When legal errors or procedural issues undermine a trial’s fairness, parties may seek a new trial under Rule 59 of the Federal Rules of Civil Procedure. Andie Cox explains such motions may be reasonable due to evidentiary mistakes, flawed jury instructions, or juror misconduct. Such motions must be filed promptly, usually within 28 days of judgment, and often serve as a precursor to an appeal.
Final Tips
Presentation during trial is essential: be respectful, be polished, and be clear. Use visuals effectively, but don’t let them become a distraction. Leon adds that jurors are always watching — even when you’re not speaking. “Don’t let your body language betray you,” he warns.
Tenthoff encourages young attorneys to gain as much experience as possible — watch other trials, participate in arbitrations, and learn from others’ mistakes. “This is a practice,” he said. “Even senior lawyers are still learning.”
Trials aren’t just about knowing the law — they’re about telling a compelling story that persuades a factfinder to side with your client. Whether it’s framing your case, choosing evidence, examining witnesses, or delivering the final word, every piece matters.
To learn more about this topic, view Litigation Basics / Anatomy of a Trial. The quoted remarks referenced in this article were made either during this webinar or shortly thereafter during post-webinar interviews with the panelists. Readers may also be interested to read other articles about litigation.
This article was originally published here.
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