1. Dennis I. Wilenchik Wilenchik & Bartness, P.C. 2810 North Third Street Phoenix, Arizona 85004 (602) 606-2810 (T) (602) 606-2811 (F) diw@wb-law.com

2. Civil Trial Practice- Dos and Donts Ninth Annual Public Legal Seminar Prescott, Arizona May 10-12, 2006

3. Dos and DontsIntroduction

4. Do keep it simple and use common sense. Do appear to be well prepared, confident, and in control of the trial. Dont bore the jury. Dont misstate evidence, go beyond the record, or state personal beliefs.

5. Dos and DontsIntroduction Dont argue with the judge in front of the jury. Do know what the judge expects of you in the courtroom. Do use visual aids to streamline evidence and issues. Do try to stipulate to admit as many exhibits as possible beforehand.

6. Dos and DontsIntroduction Do be organized and neat at your table. Do keep track of all of your documents and exhibits. Do create notebooks or folders for each witness and for the opening statement and closing arguments. Do create a proof outline showing issues needed for either your prima facie case or affirmative defenses.

7. Dos and DontsThe Jury

8. Do establish rapport with the jury. Do try to remember names of jurors. Dont ever embarrass a juror. Do appeal to the logic and emotions of jurors. Do show the jury the way. Dont speak like a lawyer in front of the jury, but dont talk down to the jury either.

9. Dos and DontsThe Jury Dont let the jury believe that anything that happens is a surprise. Do listen to prospective jurors during voir dire. Do engage in some probing voir dire in order to determine whether a prospective juror may help or hurt your case. Do make objections understandable to the jury.

10. Dos and DontsOpening Statements

11. Do start strong and create interest. Do rehearse. Do use visual aids where appropriate. Do emphasize key issues by repeating key words or phrases, pausing, modulating your voice, and creating catch phrases.

12. Dos and DontsOpening Statements Do introduce weaknesses early and openly. Do tell compelling stories. Dont overly commit yourself to the specific facts. Dont make arguments. Save your arguments for later.

13. Dos and DontsWitnesses

14. Do not call witnesses that you really do not need. Do not fight or argue with witnesses. Do end direct and cross examinations on high points. Do not object to the testimony of a witness unless you must do so. Do adequately prepare your witnesses.

15. Dos and DontsDirect Examination

16. Ask yourself: What am I trying to prove? What witnesses do I need to prove my case? Who are my best witnesses? How should I order my witnesses in order to tell my story? What can I do to make my examination more interesting to the trier of fact?

17. Dos and DontsDirect Examination Ask yourself: What are the legal requirements of getting my evidence or testimony introduced? What exhibits should I introduce and when? What demonstrative aides should I use to reach my goals? What objections should I expect? How can I overcome those objections?

18. Dos and DontsCross- examination

19. Do develop your theory and theme of the case and apply them to the cross-examination. Dont cross-examine every single witness if you do not need to. Do start and end strong. Dont ask how or why questions.

20. Dos and DontsClosing Arguments

21. Do use the closing argument as a final opportunity to persuade the jury. Do prepare the closing argument before the opening statement. Do rehearse the closing argument. Do use analogies where appropriate. Do use demonstrative evidence and/or visual aids.