The Making of an Effective Trial Attorney
For most individuals, litigation is an unnerving prospect that demands a good deal of perseverance and investment to reach a positive conclusion. In all cases, retaining a skilled and well-prepared trial attorney is also essential.
Experienced trial attorneys Lee Previant and John Noland speak with us in this article, outlining the work and training necessary for a lawyer to become truly effective in the courtroom.
To begin with, what are the essential elements of solid trial preparation?
The essentials to effectively trying a case are: 1) preparation (there is no substitute); 2) authenticity (everyone, including the storyteller, in your client’s story must have this); and 3) competency (you must be able to get evidence in and keep evidence out).
Preparation begins at the onset of the case. Even though most cases settle, you must assume every case is going to trial. In fact, the more prepared you are for trial, the more likely the case will settle. Every attorney should have a trial binder template. A trial binder is the instruction manual for your client’s trial. It should have all the relevant case information, case pleadings, research and investigation, evidence, witnesses, court orders, stipulations, voir dire information, opening statements and closing arguments. Some trial binders cannot be completed until much closer to the trial. However, if you start building the trial binder at the onset of the case, you will be more prepared and organized, allowing you to focus on the substance of the case.
Authentic is credible, and credible is believable. Once a client retains you, you should begin thinking about how to tell your client’s story (their message). The story must be authentic: do not make your client something they are not. No one is perfect; that is fine. Neither are members of the jury. The story must leave the jury believing that your client’s compensation is not only needed, but necessary, because the jury will write the next chapter. Attorneys tend to overuse adjectives and sell the story instead of telling the story. If a jury thinks a witness is embellishing or the attorney is overreaching, they won’t believe the story. You must be yourself.
The ability to get the evidence you want and need to be admitted at trial is critical, clearly. During discovery, the attorney should ask themselves: ‘Do I need this evidence? If so, can I get it admitted?’ At the same time, there is evidence that should not be admitted at trial, and if an attorney does not know the rules of evidence, they will miss an objection.
The story must be authentic: do not make your client something they are not.
Equally important is the understanding that trial requires active practice. You get rusty or out of shape if you are not consistently trying cases. This can be very taxing and stressful, since trial and trial preparation is a massive commitment of time, energy and money.
In the past you have distinguished between professional trial firms and ‘paper mills’. What is the distinction here and how does it manifest?
Despite handling a high volume of clients, some law firms do not try cases. Or, if trial is unavoidable, they refer the case to trial attorneys. In some areas of the law, such as personal injury, the insurance carriers learn and keep track of those firms that take cases to trial and those that do not take cases to trial. This has a direct impact on the settlement offers extended by the carriers. That is, the attorneys known not to try cases will often receive lower settlement offers. Insurance companies know firms that will make them spend money to defend the case.
As all attorneys know, there are no guarantees, and no matter how strongly you may feel about your chances of success at trial, there is always the risk you could lose (or get less money than your client deserves). The elimination of that risk (certainty) comes with a cost. By their very nature, settlements are less than full compensation because your client is taking less money in exchange for the certainty of compensation.
On the other hand, trying a case may be the only way to get fair compensation for your client, and that compensation may be significantly higher than any settlement offer. If an insurance company knows that an attorney will try a case to verdict, then the insurance company must account for the potential verdict far over any settlement offer. This leads to higher settlement offers for your clients because the insurance company must account for the risk.
You have also spoken in the past about how the discovery stage can show a lawyer’s experience at trial. Why is this?
Depending on the case, discovery may need to be broad or limited. Discovery should be pointed in cases with limited causes of action and few witnesses (excluding experts). The information you need in a product liability or toxic tort case is far more expansive than the information required for a rear-end motor vehicle crash.
In addition, a seasoned trial attorney can usually tell early in the litigation process if the opposing counsel is preparing a case for trial. Many defence attorneys know when a plaintiff’s attorney is filing suit to protect the statute of limitations. This is often apparent in how discovery is conducted. Is the attorney requesting information that will matter in front of a jury, or is the attorney requesting information that has little to no relevance to the elements of the case and appears to be a fishing expedition? Juries have short attention spans; only the information necessary to prove your case should be sought and presented. As discussed below, the information required to prove your case sometimes goes beyond just the elements of a cause of action.
If an insurance company knows that an attorney will try a case to verdict, then the insurance company must account for the potential verdict far over any settlement offer.
During deposition, with an eye towards trial, do not impeach a witness (unless you do not expect them to appear at trial). Inexperienced attorneys will often impeach during the deposition, losing the trial value and permitting planned rehabilitation. The power of impeachment lies in revealing in surprise what should have been voluntarily shared from the beginning.
How can focus groups also aid in trial preparation?
Focus groups are great issue spotters. They will highlight questions you did not think were important but, if unanswered, will nag a jury and distract them. Sometimes these questions do not even go to an element of a cause of action but must be answered. It is also an opportunity to practice some of the phraseology you want to use for the case – how things sound.
Focus groups can be compared to practice sessions that a football team might do: walking through plays to see what works, or in the case of a focus group, what resonates with the jury members. The more times you can put on your case before you actually put on your case, the more confident you will be when the time comes actually to present the case to a jury, because you are searching for the most effective way to tell your client’s story. And make no mistake, it is just that to the jurors: a story.
Focus groups can also assist the trial lawyer in preparing the client for trial. Having the client testify in the focus group and having the client watch the jury deliberate the case can have a tremendous impact on the client. Many clients think they want their day in court, but when they see how it feels to tell their story to strangers and then watch those strangers talk about the case and the client, it helps to ground the client for the reality of trial.
What technologies can be effective when brought to trial? How far does this extend?
Trial preparation software can greatly help organise the presentation of evidence and keep the jury engaged. Juries expect graphics and interactive displays. Static displays, like a simple slide show, can be counterproductive. Active visuals like animations of the incident and human anatomy can be very effective. A good visualisation presentation is a must if you expect to keep a jury engaged. We must utilise the best and newest technologies, including artificial intelligence, to our client’s advantage.
To excel as a trial attorney, what skills should be cultivated?
Public speaking, first and foremost. Becoming a good storyteller is also crucial. This involves engaging and spending a significant amount of time with your client. The better you know your client, the better prepared you will be to tell their story. Jurors can tell if there is a connection between the attorney and the client. If they feel you are credible and authentic, they will adopt your client’s story and want to help the client.
Focus groups are great issue spotters. They will highlight questions you did not think were important but, if unanswered, will nag a jury and distract them.
Finally, you have spoken about the importance of attorneys giving back to their community in ways other than pro bono work. How should they do this?
There are many ways that a trial attorney can give back to the community. Examples include getting involved with the local bar association, local schools, and various charitable organisations. It is not enough to write a check and walk away. You have to engage. Getting involved and being a part of community programs is essential.
The two of you come from very different professional backgrounds. What was it that prompted you to establish NP Law?
We met while working at a large law firm in Los Angeles. The national personal injury firm required attorneys to carry a large caseload. Both of us had positive experiences at this firm. However, we made the decision that we wanted to establish a law firm that was dedicated to the practice of trial advocacy.
Lee was raised in a rural farming community in Minnesota and eventually made his way to California, where he worked as a commercial real estate appraiser for several years. As a lawyer, he spent considerable time representing plaintiffs in asbestos litigation nationwide. Lee left the asbestos litigation world and volunteered in Africa. Upon his return, he began working at the firm when he met John.
For John, his current position as a trial attorney was the culmination of several careers that he would say were the stepping stones to the present. After serving as a combat medic in the United States Navy, John joined the civilian world. He served as an emergency paramedic with the Los Angeles Fire Department for approximately 10 years. While serving in the fire department, He went to school and earned a bachelor’s degree in fine art with an emphasis in medical illustration. Many of his early assignments as an illustrator were for trial lawyers and it was then and there that he made the conscious decision to become a trial attorney. Because of his extensive training in anatomy and medicine, personal injury law was a perfect fit for John.
Is there a particular principle or philosophy that motivates your work?
Any professional or business should be able to answer three questions:
- Who are we?
We are legal professionals. Being a professional means that we have taken an oath to abide by a standard of ethics and conduct that, among other things, requires us to put our client’s interest above all others, including our own.
- What do we do?
We accept the representation of clients who come to us with various problems and personal crises. When we accept the representation, we explore every option and remedy available to our client for the best possible outcome. In civil litigation, this requires a thorough risk analysis.
- How do we do it?
We treat every case as a separate ‘mission.’ In doing so, we develop a plan or strategy to reach the desired outcome. The eye of the mission is on trial. We treat each case intending to present the case to a jury. The entire staff is part of this planning, and every team member has a separate and identifiable role in obtaining success. We prepare, prepare, and prepare. We obtain and examine all the evidence available and thoroughly analyse and practice how we will present the evidence to a jury at trial.
Fewer and fewer cases are going to trial, and fewer and fewer attorneys have actual trial experience. We believe in sharing what we have learned as trial lawyers and teaching anyone who wants to learn how to try cases.
If there is a single (paraphrased) quote that sums up our ethos, it is this: “We choose to… do [these] things not because they are easy, but because they are hard. Because that goal will serve to organise and measure the best of our energies and skills, because that challenge is one that we’re willing to accept.” – John F. Kennedy.
What are your plans for the rest of 2023 and further?
Our plans for 2023 and beyond are to continue to help those that are referred to us or seek our representation. We will continue to improve as trial lawyers and advocates for this profession, and we will expand our community outreach and connect with as many lawyers as possible to help develop their skills as trial lawyers.
Lee Previant, Founding Partner
John Noland, Founding Partner
28494 Westinghouse Place, Suite 311, Valencia, CA 91355, USA
Lee Previant has worked for several large national law firms, accruing years of experience in complex litigation as a trial attorney, particularly in the field of asbestos litigation. He has battled nationally renowned law firms with a track record of success and is also a Certified Information Privacy Professional, capable of steering businesses to success in the digital age and helping individual clients to protect their personal information.
John Noland has worked as a trial attorney for the past 24 years, prior to which he served in the United States Navy as a medic assigned to the Fifth Marine Reconnaissance Unit. After leaving the Navy and finding employment with the LA City Fire Department, he went on to become a trial lawyer specialising in personal injury. Today, John has tried over 40 cases.
NP Law Firm focuses on civil litigation with an emphasis on taking cases to verdict. The firm primarily serves the greater Los Angeles area and handles cases throughout California. NP Law’s team boasts a comprehensive breadth of experience and particular expertise in trial prep, utilising focus groups and mock trials to bring a fully informed perspective to every case.