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Tips From My Mentors.

Much is written about trial strategy, jury selection, and the art of persuasion. But practical advice can be just as important. Over the years, I have made note of some gems of wisdom I have learned from my mentors. Some are funny, some are outrageous, and some are simple common sense. Hopefully, they will come in handy to guide your day-to-day decisions.

On Mediation

You need jacks or better to open. In poker, a player needs a decent hand to open. Use the same rule for mediation. Do not agree to mediate until the defendant makes a legitimate opening offer. Unless, of course, you enjoy being trapped in a room for hours on end while the defendant calls its insurance carrier for the first time, going to mediation without first having a decent offer on the table is a waste of your time.

You never get more unless you ask for it. Don't be bashful. So long as you have a credible justification for your demand, go for it. You can always reduce your demand, but it's very hard to increase it.

On Pretrial Practice

It makes the point. When drafting documents, keep efficiency in mind. If the brief makes the point, move on to the next task. Especially when working on trial teams, too much wordsmithing can be counterproductive.

Stop when you're ahead. If the court excoriates your opponent and then asks if you have anything to add, the answer is no. Stop talking when you're ahead. Do not risk adding a remark that causes the court to deviate from its favorable position toward your client.

The same is true if your motion for a mistrial is granted. If you win a motion for mistrial, vacate the courtroom--then it is too late for your opponent to attempt to overturn the ruling. The court cannot reconsider what has become a fait accompli.

The enemy of good is perfect. This rule is the corollary to "stop when you're ahead." It applies to many situations, even during trial. (Remember the "one question too many" rule on cross-examination.) Once you obtain results you can be satisfied with, do not risk undoing what you have accomplished by going for perfection. The more arguments you make, the more things can go wrong.

Always schedule three things for the same time, because the odds are at least two will be canceled. This is an important rule when counsel pull out their calendars to schedule trial 18 months down the road. Other than a long-planned vacation, do not worry if you have a scheduling conflict. Take the risk of being overbooked, and keep your schedule full.

Always give them a notebook with tabs. First impressions matter. Whether you arrange a meeting with a group of cocounsel, expert witnesses, or opposing counsel, show them that you are organized and in command. A simple rule for conducting the big meeting at the boardroom table is to always give them a notebook with tabs. Attendees go home with a parting gift that proves something important happened that day.

On Trial

Don't ask to continue your trial date. As we all know, trial dates are hard to come by. If you have a trial date and it looks as though there is not enough time to prepare, then work harder, and get yourself ready. Somehow the work always gets done in the amount of time you have to do it. All you gain from postponement is that you will spend more time to achieve the same result.

Tidy the well. When it is your turn to question the witness, pause and clear the courtroom of any exhibits or other items left behind by opposing counsel. Crafty counsel will often prop up an exhibit or leave an image on a screen to haunt you throughout your questioning. Calmly walk up, remove the exhibit, clear the screen, clean up any items left around the podium, and then begin your questioning with a clean slate.

Beware hot microphones. Don't forget that the microphones on the counsel tables stay on during breaks at trial, and the audio is often piped into chambers. Comments not intended to be overheard will be picked up and broadcast to many listeners, potentially even the judge. Microphones are also placed outside the door of chambers in many courthouses, so the same rule applies. And if you're remote, don't forget to mute yourself when you're not speaking and during breaks.

Janet G. Abaray is a shareholder at Burg Simpson Eldredge Hersh & Jardine in Cincinnati and can be reached
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Title Annotation:Special Issue: Discovery & Depositions
Author:Abaray, Janet G.
Date:Jun 1, 2021
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