The Trial Lawyer's Handbook

Holland & Knight

The Trial Lawyer's Handbook is a Courtroom Preparation podcast series brought to you by Holland & Knight. This series is hosted by litigation attorney Dan Small and is based on a longstanding article series he co-authored with Judge Dennis Saylor for Massachusetts Lawyers Weekly. Listeners of this series will gain a fresh perspective on how attorneys can address various trial preparation issues and set themselves up for success in and out of the courtroom.

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Direct Examination: Looping and Bookending

Direct Examination: Looping and Bookending

In this episode of "The Trial Lawyer's Handbook" podcast series, litigation attorney Dan Small discusses the real-world challenges of direct examination, emphasizing that while the ideal scenario would be a perfectly coherent narrative, reality demands strategic storytelling. Drawing from his book, Lessons Learned from a Life on Trial, Mr. Small offers insights into making complex cases understandable, focusing on the techniques of looping and bookends for effectively keeping jurors engaged and informed. These strategies highlight the need for clarity and skill when guiding the jury through the often-convoluted paths of legal narratives.

Episodes

Direct Examination: Looping and Bookending

Direct Examination: Looping and Bookending

In this episode of "The Trial Lawyer's Handbook" podcast series, litigation attorney Dan Small discusses the real-world challenges of direct examination, emphasizing that while the ideal scenario would be a perfectly coherent narrative, reality demands strategic storytelling. Drawing from his book, Lessons Learned from a Life on Trial, Mr. Small offers insights into making complex cases understandable, focusing on the techniques of looping and bookends for effectively keeping jurors engaged and informed. These strategies highlight the need for clarity and skill when guiding the jury through the often-convoluted paths of legal narratives.

Direct Examination: Getting Rid of Clutter

Direct Examination: Getting Rid of Clutter

In this episode of his "The Trial Lawyer's Handbook" podcast series, litigation attorney Dan Small highlights the impact of verbal clutter in legal proceedings. He stresses the importance of asking concise, clear questions, urging lawyers to avoid unnecessary phrases that add ambiguity. Mr. Small presents practical strategies for effective and efficient questioning, ultimately enhancing the trial process and reducing confusion for both witnesses and the jury.

Direct Examination: Asking Questions in the Right Order

Direct Examination: Asking Questions in the Right Order

In the latest episode of the "The Trial Lawyer's Handbook" podcast series, litigation attorney Dan Small shares insights on strengthening direct examinations. He stresses that every question should advance testimony in a logical flow. Mr. Small also explains the importance of establishing adequate foundations before delving into substantive details. Listeners will learn to avoid "how do you know" questions that risk sounding leading or casting doubt. He notes proper order and phrasing also matter when introducing documents or physical evidence.

Direct Examination: Controlling a Friendly Witness

Direct Examination: Controlling a Friendly Witness

In this episode of "The Trial Lawyer's Handbook" podcast series, litigation attorney Dan Small goes over how to avoid leading questions on direct examinations while still maintaining control. Mr. Small outlines six important steps to help ensure direct examinations go the way lawyer want it to: preparation, mistakes, pace, pieces, narrative and listen. These steps help both to control the witness and guarantee that the testimony is clear, effective and engaging for the jury.

Direct Examination: To Lead or Not to Lead

Direct Examination: To Lead or Not to Lead

In this episode of "The Trial Lawyer's Handbook" podcast series, litigation attorney Dan Small explores how to avoid asking leading questions during direct examination. The Federal Rules of Evidence state that lawyers should not use these types of questions when examining a witness, except when necessary to develop the witness' testimony. Mr. Small recommends using concise and straightforward "W" questions — who, what, when, where, why and how — to allow witnesses to freely share their story without shifting the jury's focus to the attorney.

The Basic Elements of Direct Examination

The Basic Elements of Direct Examination

In this episode of "The Trial Lawyer's Handbook" podcast series, litigation attorney Dan Small outlines the basics of an effective direct examination. He walks listeners through the six key elements of a well thought out, well delivered direct examination.

Opening Statements: Some Common Challenges

Opening Statements: Some Common Challenges

In this episode of "The Trial Lawyer's Handbook" podcast series, litigation attorney Dan Small discusses the complexities attorneys face in crafting an effective opening statement during a trial. He tackles common challenges such as introducing key legal concepts without crossing any lines, skillfully anticipating opponents' arguments, addressing your case's weaknesses from the outset and thanking the jury. Mr. Small meticulously explains how to use minimal legal language, deal with opponents' points before they're made and make a good first impression without coming off as insincere.

Ep. 27 - Opening Statements: Common Mistakes

Ep. 27 - Opening Statements: Common Mistakes

In this episode of his "The Trial Lawyer's Handbook" podcast series, litigation attorney Dan Small discusses some common mistakes that lawyers tend to make in opening statements. As he explains, although there’s no such thing as a perfect trial, or anything close to it, some mistakes are easier to avoid than others.

Opening Statements: The Prohibition Against Argument

Opening Statements: The Prohibition Against Argument

In this episode of his "The Trial Lawyer's Handbook" podcast series, litigation attorney Dan Small discusses the frequently stated rule that an opening statement is intended to be only a summary of the facts, not an argument. He examines types of statements that may be used in an opening that appear to blur the line between facts and argument, showing how the distinction between the two can be difficult to discern, especially for new lawyers. Mr. Small then explains how to structure an opening statement that goes beyond a mere summary or recitation of the anticipated evidence while still remaining on the right side of the rule.

Opening Statements: Telling the Story

Opening Statements: Telling the Story

In this episode of "The Trial Lawyer's Handbook" podcast series, litigation attorney Dan Small outlines the importance of connecting with jurors from the beginning of the trial. He explains that an important aspect of drawing the jurors in is by making them care about what you have to say, comparing presenting opening statements to telling a story.

Openings of Openings

Openings of Openings

In this episode of his "The Trial Lawyer's Handbook" podcast series, litigation attorney Dan Small describes different approaches to opening statements in a trial, outlining three common styles: dramatic, theme-oriented and sequential. He emphasizes the importance of capturing jurors' attention from the start and recommends avoiding unnecessary details, focusing on the theme and facts to keep jurors engaged. Mr. Small also cautions against making the facts fit the theme and encourages prioritizing truth and credibility to ensure the jury's attention and respect.

The Basics of Opening Statements

The Basics of Opening Statements

Litigation attorney Dan Small continues his insightful "Trial Lawyer's Handbook" podcast series with a new episode focused on opening statements. Drawing from his extensive trial experience, Mr. Small offers practical tips for crafting a narrative that draws jurors in and sets the stage for your side's case. From understanding courtroom customs to anticipating opposing arguments to staying authentic, his primer offers practical guidance for effectively introducing a case to jurors.

Effective Trial Language Part 3: Jargon

Effective Trial Language Part 3: Jargon

In this episode of his "The Trial Lawyer's Handbook" podcast series, litigation attorney Dan Small discusses the use of jargon within a courtroom. Mr. Small goes over the negative impact that it can have on the jury and explains why it's important to try to keep it at a minimum. He also illustrates how jargon can be used to one's advantage if there is no way to avoid it.

Effective Trial Language Part 2: Legalese

Effective Trial Language Part 2: Legalese

In this episode of his "The Trial Lawyer's Handbook" podcast series, Holland & Knight litigation attorney Dan Small discusses the use of legalese in the courtroom. He advises attorneys to avoid excessive use of legal jargon when speaking to jurors in a trial because such language can be confusing and distance the lawyer from the audience. Instead, he suggests using plain English as much as possible in order to effectively communicate with jurors.

Effective Trial Language Part 1: Noise

Effective Trial Language Part 1: Noise

In this episode of his "The Trial Lawyer's Handbook" podcast series, Holland & Knight litigation attorney Dan Small explains the importance of being concise in the courtroom. He describes how to eliminate unnecessary words and noise so the audience, whether it be a judge or jury, can focus on the substance of the material being presented.

Dealing with Evidence of Time, Distance and Speed

Dealing with Evidence of Time, Distance and Speed

In this episode of his "The Trial Lawyer's Handbook" podcast series, litigation attorney Dan Small delves into the critical importance of establishing and relaying accurate measures of time, distance and speed in the courtroom. Mr. Small discusses the usefulness of demonstrative aids – such as stopwatches, tape measures or diagrams – and analogies or references to everyday objects to ensure the jury understands and believes your evidence.

Why Demonstrative Aids Are Critical in Every Case

Why Demonstrative Aids Are Critical in Every Case

In this episode of his "The Trial Lawyer's Handbook" podcast series, litigation attorney Dan Small discusses why demonstrative aids are critical in every case. Mr. Small shares why he believes simple demonstratives, when properly used, can deliver powerful messages.

Using Technology in the Courtroom

Using Technology in the Courtroom

In this episode of his "The Trial Lawyer's Handbook" podcast series, litigation attorney Dan Small discusses the pros and cons of using technology in the courtroom. Mr. Small provides six helpful tips on how to put the electronic tools at your disposal to proper use as well as the importance of always having a backup plan.

Showing Exhibits to the Jury

Showing Exhibits to the Jury

In this episode of his "The Trial Lawyer's Handbook" podcast series, litigation attorney Dan Small highlights seven basic ways to effectively show a document or other exhibit to the jury. Mr. Small shares why the implementation of these skills is necessary for trial lawyers in order to successfully communicate in court.

Exuding Credibility in the Courtroom

Exuding Credibility in the Courtroom

In this episode of his "The Trial Lawyer's Handbook" podcast series, litigation attorney Dan Small sits down with Frank Vecella, principal at McKool Smith and former head of litigation for Ericsson, for an in-depth discussion on their experiences in trial law. Mr. Vecella provides insight into his years hiring trial counsel for Ericsson, why exuding credibility in the courtroom is so important, how to be the best trial lawyer you can possibly be, witness preparation and more. Listen to this episode for invaluable advice on how jurors and trial lawyers alike can thrive in the legal field.