01/05/2026
Read till the end 😂
THE ATTRIBUTES OF A GOOD TRIAL LAWYER.
By Atty. Florante A. Zagada.
Are you a litigation lawyer? As lawyers, it is imperative that we should not only prepare for our cases in court, but we must also communicate well to the fact-finder—the judge.
Every movement and sound you make in a courtroom communicates a message to the factfinder. Perhaps judges will determine that you are prepared, professional, and intelligent. Perhaps they will listen intently to your every word and ponder your arguments.
But what if they do not? What if the judge perceives you to be tired, bored, unconvinced, uninteresting, and, ultimately, not persuasive? It is up to you to make sure that your message is heard by communicating effectively at trial.
In this reflection, I will share with you the attributes of a GOOD LITIGATOR.
One: A LITIGATOR MUST HAVE CONFIDENCE.
Think of yourself as a walking billboard with a different message appearing each time you move and speak. What message appears when you talk softly in a courtroom? “I’m sorry, I’m nervous.” How about when you mumble? “I’m sorry, I’m not very sure about what I’m saying.” How about when you slouch in your seat or walk tentatively from one side of the courtroom to the other? You get the point.
When you act and speak without confidence, you are apologizing to everyone around you. Do not apologize in the courtroom; there is no reason for it, no one enjoys watching it, and it only interferes with your ability to persuade the factfinder.
Demonstrate confidence during trial by knowing and operating within the rules of evidence, procedure, and ethics; by understanding how the judge wants the trial to proceed; and by demonstrating your mastery of the facts of the case.
Confident lawyers enter the courtroom knowing what they want to accomplish, why they want to accomplish it, and how they intend to do it; they have prepared their examinations, are ready to call and cross-examine witnesses, and can argue evidentiary objections at any time.
Confident lawyers are also well organized and well prepared; they know where their exhibits can be found, how they are to be numbered, and which witnesses will introduce them. And, finally, confident lawyers follow the rules of the trial; they understand which documents can be used to impeach which witnesses, they have chosen their objections ahead of time, and they know how to explain their objections to the court.
As you can see, competence leads to confidence—and confidence is apparent to the factfinder. Unpreparedness, incompetence, and disorganization lead to insecurity, which is also obvious and can be damning at trial.
Two: A LITIGATOR MUST HAVE INTEGRITY.
The word “integrity” comes from the Latin integritas, meaning wholeness or soundness, complete in itself. Thus, our concept of integrity has come to mean unsullied, unbroken, and undivided moral principle. In other words, it is a quality of the whole and honest lawyer.
The most important thing you can do to demonstrate integrity in the courtroom is to follow the court’s ethical and procedural rules. Good lawyers, lawyers with integrity, do not break these rules or even attempt to dance around them. Likewise, honest lawyers do not overstate their case, do not promise evidence that they cannot deliver, and do not make arguments that they cannot support.
Demonstrating integrity also requires that you treat everyone in the courtroom with respect. This includes your opponent, the witnesses, and especially the judge. You do not have to like them, their words, or their actions, but you should respect them by not interrupting them without good cause and by giving them your full attention when it is requested.
Do not use bullying tactics to intimidate your opponent or their witnesses. Do not attempt to distract the fact-finder during your opponent’s case. And do not try to disrupt opposing counsel’s legitimate presentation or to use facial expressions, grimaces, or gestures to “argue” your case while other arguments or examinations are proceeding. Each time you fail to show respect to others at trial, your credibility weakens, and with it your persuasiveness.
You also demonstrate integrity by learning to lose gracefully. Without likening a trial to a war, remember that you can lose a few battles and still prevail. So, when a witness does not testify exactly the way you predicted or an exhibit is not allowed into evidence, do not take it out on others or display your frustration—let go and move ahead. Being a good loser has the added benefit of not highlighting your loss for the trier of fact.
A final word about integrity: it cannot be faked. It is not a face or costume that you put on and take off. If you are truly committed to trying a case with integrity, it will show; if you are not, the trier of fact will see that as well.
Three: A GOOD LITIGATOR MUST DEVELOP NONVERBAL COMMUNICATION TECHNIQUES.
There are two kinds of communication: nonverbal and verbal. Nonverbal communication refers to vocal variation, body movement, facial expression, and the use of space, among other factors.
All forms of communication that do not include the spoken or written word fit into the category of nonverbal communication.
You have undoubtedly heard the expression “Actions speak louder than words.” This sentiment holds true in trials as well; nonverbal messages are more believable than verbal messages. Therefore, be constantly conscious of the nonverbal messages you send during a trial.
The following are nonverbal techniques that, if followed, will make you a more persuasive advocate
A) STAY IN ROLE AT ALL TIMES.
During trial, assume that the trier of fact is watching your every move and facial expression.
Make a positive first impression by paying particular attention to your physical appearance, including your grooming and dress. Your posture and voice also influence how others perceive you. As a litigator, you are a professional advocate who has agreed to represent your client to the best of your ability; slouching and mumbling will not do.
Each time you stand, stand fully erect. Each time you speak, speak loud enough so that every person in the courtroom can hear you. In short, demonstrate the purpose and intent of each action and sound you make during the trial so that your poise befits your professional role.
This leads to an important corollary: be cautious that your posture and voice do not overstep the bounds of your professional role. Yes, you should appear comfortable and confident during the trial, but do not allow your comfort or confidence to translate into informal or arrogant behavior. It is never appropriate to lean back at the counsel table with your hands behind your head, and, especially, not with your feet elevated.
Also, do not lean on the counsel table, chin in hand, or lay your head on the table. The same goes for the other solid structures in the courtroom; do not use them as a crutch, seat, or leaning post. At all times, remember that you are in the courtroom in a professional capacity and that the fact-finder is watching.
B)BE CAREFUL NOT TO UPSTAGE YOUR WITNESSES.
All actors know the rules about upstaging another performer. The same rules apply in the courtroom. As your client’s advocate, never detract attention as your witnesses testify; the opposite holds true for the opposing witnesses whose testimony you hope to diminish.
Stand near your witness during direct examinations to encourage your witnesses to make eye contact with the judge and to speak loudly enough that the judge can hear their testimony. Stand in the middle of the courtroom—during cross-examinations to better control opposing witnesses and to draw attention to yourself, upstaging the adverse witness.
C) MAKE EYE CONTACT WITH THE WITNESSES AND FACTFINDER.
Actors also understand the value of eye contact. You have undoubtedly learned that the best way to convince someone that you are sincere and honest is to look them in the eyes when you are speaking. A trial is no different. A lawyer who looks at jurors while addressing them is more likely to be believed than one who does not.
A particularly powerful use of eye contact during witness questioning is to look at the fact-finder and pause for a moment when one of your witnesses gives important testimony during a direct examination, as if to say, “Did you hear that?” Or, shoot them a knowing glance when you make a particularly damning point on cross-examination, as if to say, “Can you believe this guy?” Of course, as with any trial technique, overuse will backfire.
Eye contact is much more than a useful tool of persuasion; it is also a great way to make sure the jurors are listening to, and understanding, your case. In other words, do not just look at the jurors occasionally—make it your habit to watch them throughout the trial. Just as the jurors will be evaluating your actions and reactions throughout the trial, study theirs to determine whether they are following and understanding the testimony.
This advice is not meant to be taken too literally, however. Jurors do not know you personally and will respond with discomfort if they notice you staring intently at them too often or for too long. Moreover, if you are going to act as if the jury is on your side, be absolutely sure it actually is. By all means make eye contact with jurors from the beginning of your trial and check in with them frequently to see how they react to important pieces of testimony and evidence, but focus the vast majority of your energy on doing the best job possible of presenting your case.
D) USE BODY MOVEMENT TO EXPLAIN AND EMPHASIZE THE POINT.
Like your eyes, your body can be a valuable tool of persuasion throughout a trial. Use your fingers to signal numbered points in your argument by lifting them one at a time as you argue. Hold out each of your hands with your palm facing up when comparing two arguments and asking the factfinder to weigh one more heavily than another. Move from one place in the courtroom to another during your argument to signal a transition or to differentiate between items in a list.
A strong cross-examination technique is to walk closer and closer to a witness during each series of questions. A strong cross-examination technique is to walk closer and closer to a witness during each series of questions.
Three cautions about movement:
First, never invade a witness’s or the jurors’ personal space. As a rule, avoid getting closer than about four feet to any other person in the courtroom while presenting.
Second, be sure your movements in the courtroom are deliberate, since that is the best way to concentrate the factfinder’s attention. Pacing is an example of ineffective movement during trial, since it distracts the factfinder from your verbal presentation.
Third, pick your moments. Emphasizing every point you make through the use of movement is the same as emphasizing nothing. If you are constantly moving, the judge or jury might think you need a bathroom break, or they might daydream about gluing your feet to the floor. These techniques—just like the use of eye contact—are meant to be used judiciously.
E) MINIMIZE YOUR RELIANCE ON YOUR NOTES.
Trial attorneys nearly always refer to their notes when questioning witnesses and addressing the finder of fact. They do this because they have an obligation to their client to try the case to the best of their ability.
If a lawyer forgets to elicit a crucial fact during the testimony, real and serious consequences may result. Most obviously, an innocent defendant could be wrongfully convicted, or a guilty defendant could be erroneously set free. Good lawyers, therefore, take concrete steps to ensure that they do not forget anything important at trial.
On the other hand, experienced trial attorneys recognize that overusing notes detracts from their ability to persuade the factfinder.
Relying on notes reduces an attorney’s ability to make eye contact with the witnesses and with the finder of fact. Eye contact is essential to persuasion. When a lawyer reads every question they ask a witness on direct, the examination looks more like a recitation and less like a conversation.
Also, relying on notes inhibits an attorney from effectively moving in the courtroom to explain and emphasize essential points. In short, if more than a minute or two of a lawyer’s presentation at trial is read directly from notes, the lawyer will appear stilted, less confident, and, ultimately, less persuasive.
The first thing all trial attorneys learn is not to write detailed notes. For instance, if each question in a direct examination appears in a lawyer’s notes in this form, “Please tell us, Dr. Harris, what sort of clinical training you have,” the lawyer will be tempted to read each question in that form at trial. The better way for counsel to remember to ask the doctor about clinical training is to simply write “Clinical Training?” in their notes. This form provides direction at a quick glance and forces counsel to ad-lib the question, which will make it seem more conversational and sincere.
Another solution is simply practice. As you might have learned through participation in music or sports, practice makes permanent. Attorneys who practice their direct and cross-examinations and their opening statement and closing argument enough will only need to resort to notes occasionally to check to make sure they have covered every necessary topic. These attorneys are better off leaving their notes at the counsel table and referring back to them only when necessary or when they are about to finish and want to make sure every important point was covered.
Four: A GOOD LITIGATOR MUST DEVELOP VERBAL COMMUNICATION TECHNIQUES.
While closely monitoring your nonverbal communication at trial, be sure you are also getting the most mileage out of your verbal communication. Verbal communication refers to all spoken and written language.
Follow the steps outlined below to become a more persuasive speaker.
A. Show Respect to the Judge
Always address the presiding judge with deference. Address the judge as “Your Honor” and always stand when you do so unless directed otherwise. Likewise, honor every ruling the judge makes and do not attempt to argue with the court. If you leave the court after hearing your case, always say, “PERMISSION TO LEAVE, YOUR HONOR.
B. Use Powerful Speech
The powerful speech is more persuasive than powerless speech. Powerful speech is free of vocal pauses, qualifiers, intensifiers, and dull adjectives. As with any skill, learn to speak more persuasively by training yourself to use only powerful speech.
c) Take the Lead Out.
Vocal pauses or fillers, such as “um” and “uh,” are sounds speakers use to avoid silence. First, become aware of your use of vocal pauses. Then, practice isolating your vocal pauses and consciously eliminate them from your speech. Eventually you will notice how effective and dramatic long pauses can be. What seems like an eternity of silence to you while speaking will sound like a natural pause to the listener.
d) Say what you mean and mean what you say.
Another technique is to say what you mean and mean what you say. Qualifiers and intensifiers are used in speech to soften or strengthen the meaning of language. In ordinary conversation, people tend to qualify or temper their ideas as a matter of politeness or convention and exaggerate or intensify their ideas to signify emphasis.
Examples of qualifiers are “probably,” “sometimes,” “perhaps,” “maybe,” and “sort of.” Examples of intensifiers are “really,” “very,” “highly,” and “especially.” During casual exchanges, qualifiers and intensifiers hardly raise an eyebrow.
Trials are different. Trials are about persuasion. Trials are about certainty. Trials are about asking the fact-finder to reject the other party’s claims and to enter a verdict in your client’s favor. Whenever you use qualifiers or intensifiers in your speech during trial, your credibility decreases, and the trier of fact is less likely to be persuaded by your words. Using powerful speech also applies to witness testimony.
BOOK REFERENCE:
Mock Trials: Preparing, Presenting, and WINNING Your Case.
Jill Kostner & Steven Lubet, Third Edition. National Institute for Trial Advocacy.
