1. Colin E. Kaufman
Adam Leitman Bailey, PC
April 11, 2013

2. Investigation
Facts
Law
Opponent
Judge

3. Audience
Judge
Scholar
Pragmatist
Settler
Stickler
Jury
Venue
Demographics

4. Jury or Bench Trial
Jury Judge
 Not jaded
Receptive to moral
arguments
 Susceptible to sympathy
 Trial will run longer in one
block
Higher probability of
quirky verdict
 More scope for appellate
review
 Experienced
Receptive to legal
argument
 Focused on facts
 Trial quicker, but may be
discontinuous + delay in
judgment
Verdict generally
consistent with similar
cases
 Seldom reversed on
factual issues

5. Theory of the Case
How do the facts fit the law you need?
What is your story?
Why should I care?

6. Theme(s)
 Frame the argument
 Introduce buzz words and taglines
 Prepare the fact-finder to make a moral judgment in your client’s favor
 Juries and judges want to do the right thing – help them

7. Trials are a Unitary Whole
 Investigation and legal research lead to a consistent story, themes,
opening, testimony, summation, which leads to a verdict in your client’s
favor.

8. Bifurcated v Unified Trial
 Varies by County
 Case
 Judge
 You may influence
 Reverse bifurcation
 trifurcation

9. HOW TO WIN CASES
1)Develop facts
2)Know the law

10. What you need - Pretrial Conference
 (For Plaintiff) Marked Pleadings
 Proposed Jury Charges
 Stipulated Facts (if any)
 (Some Judges/Some cases) Trial Memorandum of Law
 Motions in Limine
 (Some State Judges + Federal) Exhibit List
 Proposed Transcript Readings, objections, fairness readings

11. Motions in Limine
• When sorely prejudicial material
• Alerts the other side
• Decisions in limine are preliminary
• When opposing, always give the judge the out – I won’t
use it in opening, let’s see how the evidence develops
• When bringing the motion – Judge, your decision here
affects the structure of my case

12. Trial Brief
• Pro
• Gives the Court an overview
• Allows the Court to prepare
• Gives the court time to research legal issues raised
• Generally makes life easier for the Court
• Con
• Give your opponent an overview of your case
• Allows opposing counsel time to prepare, to exploit weaknesses and to bolster his
case where needed
• Gives your opponent time to research legal issues
My job is not to make life easy for the Court (and certainly not for my
adversary)

13. Jury Selection
18-24 veniremen
Little room
Take charge
EVERYTHING COUNTS
Jury Questionnaires

14. Voir Dire
 Introduction
 Identify
 Matters in contention
 Don’t argue your case
 Questioning
 Open ended
 Identify prejudices (without calling it that)