TOP TEN TIPS TO IMPRESS A CHANCELLOR AT TRIAL: #8

May 17, 2012 § 1 Comment

This is the third in a series counting down 10 common-sense practice tips to improve your chancery court trial performance. If you’re a long-time reader of this blog, some of these will be familiar. That’s okay. They bear repeating because they are inside tips on how to impress your chancellor, or at least how to present your case in a way that will help her or him decide in your favor.

TOP TEN TIP #8

Know the law and have it handy.

Know the law that applies in your case. It’s never a bad idea to check on what the appellate courts have said most recently about whatever it is you are getting ready for trial. Even if you are an experienced, battle-scarred litigator, you can get blindsided by a rank, newly-minted lawyer if you don’t keep up. Complacency is stupidity in the guise of arrogance; it is intentional ignorance that often proves embarrasing, or worse.

Read the COA decisions every Tuesday afternoon and Supreme Court decisions every Thursday afternoon. When you run across something pertinent to a pending case, print out the decision, highlight the language you need, and stick the decision in your file. That way you’ll have it handy when you need it at trial. If you are too lazy to make time to read the decisions, subscribe to either the Ole Miss or MC law school briefing service and receive summaries via email after each handdown.

Even if you are convinced that you know what the law is, re-read your cases before going to trial. Sometimes you will spot a fatal distinction or even a point in your favor you had overlooked or forgotten.

Often when you are researching one point in a givn case, you will stumble on something that will help in another case. Stop right then and copy the material you found, or make a note of the case citation, and insert it into the appropriate client file.

If you know that your case will involve an issue that is out of the ordinary, have your authorities copied and ready to give the judge. Don’t just read off a few case cites; have copies of the decisions to hand the judge. Some judges require you to give a copy to opposing counsel. When you have authorities at hand, it not only aids the judge in making the right decision, it also communicates to the judge in not-so-subtle fashion that you know you are on sound ground and have confidence that the law supports your position. Contrast that with the lawyer who, when asked what authority supports his position, replies “Well, I know there’s a case out there on point, judge, and if you give me about 10 days, I might be able to find it.”

Have your trial factors printed out and handy, with case cites. Use them as checklists to question your witnesses.

Don’t ever misquote a case or argue that a case says something that it does not. I have heard lawyers make arguments citing cases that I know for certain do not support their position. Those lawyers may have impressed the client with their apparent erudition, but it likely won’t get past the judge, because most of us tend to read the cases before we cite them.

Read the statutes every now and then, even statutes that you think you’re familiar with. You’ll be amazed at what you find there. If a statute applies in your case, have a copy of it to hand the judge. Most court rooms do not include a code, and if you don’t have your statute(s) handy, you will have to wait until the judge can get back to chambers or, worse, back to her office in a neighboring county, before the judge can decide the point.

Get a copy of Deborah Bell’s book and use it.

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