Dennis I. Wilenchik

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-Do’s and Don’ts • Ninth Annual Public Legal Seminar • Prescott, Arizona May 10-12, 2006

3. Do’s and Don’ts—Introduction

4. Do’s and Don’ts—Introduction • Do keep it simple and use common sense. • Do appear to be well prepared, confident, and in control of the trial. • Don’t bore the jury. • Don’t misstate evidence, go beyond the record, or state personal beliefs.

5. Do’s and Don’ts—Introduction • Don’t 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. Do’s and Don’ts—Introduction • 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. Do’s and Don’ts—The Jury

8. Do’s and Don’ts—The Jury • Do establish rapport with the jury. • Do try to remember names of jurors. • Don’t ever embarrass a juror. • Do appeal to the logic and emotions of jurors. • Do show the jury the way. • Don’t speak “like a lawyer” in front of the jury, but don’t talk down to the jury either.

9. Do’s and Don’ts—The Jury • Don’t 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. Do’s and Don’ts—Opening Statements

11. Do’s and Don’ts—Opening Statements • 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. Do’s and Don’ts—Opening Statements • Do introduce weaknesses early and openly. • Do tell compelling stories. • Don’t overly commit yourself to the specific facts. • Don’t make arguments. Save your arguments for later.

13. Do’s and Don’ts—Witnesses

14. Do’s and Don’ts—Witnesses • 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. Do’s and Don’ts—Direct Examination

16. Do’s and Don’ts—Direct Examination • 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. Do’s and Don’ts—Direct 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. Do’s and Don’ts—Cross-examination

19. Do’s and Don’ts—Cross-examination • Do develop your theory and theme of the case and apply them to the cross-examination. • Don’t cross-examine every single witness if you do not need to. • Do start and end strong. • Don’t ask “how” or “why” questions.

20. Do’s and Don’ts—Closing Arguments

21. Do’s and Don’ts—Closing Arguments • 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.