In 2005 the Legal Services Commission received the current equivalent of $1.6 billion in government grants for performing civil legal services on behalf of needy citizens in England and Wales, according to its annual report. For that same year, the Congress coughed up $335 million for our Legal Services Corporation, upon which legal aid bureaus around the U.S. heavily rely. Based on these numbers, I estimated at the time that the United Kingdom, with its population of about 60 million, spends more than $26 per person on legal aid. The U.S. spends just over $1 per person.

Saliently, the front page of today's Post includes a headline that reads: "Recovery's Missing Ingredient: New Jobs." "Despite signs that the recession gripping the nation's economy may be easing, the unemployment rate is projected to continue rising for another year before topping out in double digits, a prospect that threatens to slow growth, increase poverty," the story reads. That's as good a reason as any to do all we possibly can to enhance the ability of cash-strapped legal aid organizations to fulfill their critical mission.

(If you're interested in supporting the Maryland Legal Aid Bureau, of which I'm a board member, click here.)

To do so in an opening, you may want to invoke a dramatic statement that shifts attention to your case, the theme of which is compellingly distinct from that of the opposing counsel’s. For example, in a case alleging sexual harassment the defense began as follows: “Ladies and gentlemen, this case will demonstrate that just as it is important to eliminate sexual harassment in the workplace, it is equally important to eliminate false claims of harassment, which is exactly what we have here today.”

Other techniques of introduction include clearly stating your purpose or asking a question central to the case. For example: “The government is going to ask you to take away the freedom of Sergeant Smith for defending our freedom. … Now, what crime did he commit? His military working dog barked at people.” (The Baltimore Sun, March 14, 2006, quoting Capt. Jason Duncan in the opening for the defense of Sgt. Michael J. Smith in the Abu Ghraib prison case.) You can also begin by paying a compliment to the jury or appealing to the jury’s sense of self-importance: “In deciding this case you will be establishing the industry standard for the next 20 years.” Avoid introducing your case by stating that the opening cannot be considered as evidence. This only suggests that the jury should not listen to you and that what you are about to say is unimportant.

Because your listeners’ impressions of you bear on your persuasiveness, within the first five minutes of the opening you should ingratiate yourself with the jury. This isn’t hard to do. A courteous smile and a word of gratitude can help you establish much-needed rapport. There are different opinions about whether you should thank the jury for its attention during the opening, but I believe doing so can help humanize you and your client. A little courtesy can go a long way.

Ideally, within the first few minutes of your opening statement, each juror will have a favorable impression of you and a clear understanding of your overarching theme. Such themes are vital. In addition to drawing attention to your case, they can give the jurors a figurative lens through which to view all the information that is to follow and help them organize it as you wish them to.

Trial lawyers should familiarize themselves with the research Brooks cites. It matters to our profession, though I question whether it will change how we argue cases. Skilled advocates know, and have known for centuries, that a key component or persuasion is pathos. In speaking to juries, we always appeal to emotions. As Abraham Lincoln said during his trial lawyer days, to persuade a person, one first has to capture the heart. If a case concerns a traffic accident, we describe the wreckage in vivid detail or speak movingly of the plaintiff's struggle to walk afterwards. This is common, effective if not overwrought, and often wins verdicts.

But some lawyers concentrate primarily on logos. If the research Brooks cites stands the test of time, logic in legal argumentation may come to be seen as merely the "window-dressing" for what we know by instinct to be right or wrong.

The task is accomplished in small steps over a long period of time. If you are a litigation associate focusing on discovery, learn everything there is to know, and then some, about discovery problems. Once you master the nuances of interrogatories, requests for production of documents and privilege logs, seek experience in taking and defending depositions. Start second-chairing in trials and work your way forward to assuming more responsibility.

Don’t wait for colleagues or partners to lead you to the water. Improve yourself at every opportunity. Read all you can about the areas of law you wish to master. Talk to more experienced lawyers, attend educational programs, and study the work product of those you respect.

In other words, pickle yourself in the subject. Day by day, your expertise will grow--and so will your reputation.

Here's one familiar pointer: find a mentor. Seek out a relationship with a senior lawyer or two. Discussing legal issues and your professional life with a role model can be invaluable, especially as your career changes over time. A good mentor will take an interest in helping you succeed and spend time explaining aspects of his or her practice, specific skills and techniques, and case strategies. You might find mentors within your firm or outside it. Bar associations and Inns of Court are good places to meet people who can counsel you on developing your career and perhaps, down the line, refer clients your way.

At trial, this becomes extremely important. During the first moments of an opening statement, your audience of judge, jury members and arbitrators will be forming key impressions of you and your case. I generally recommend conservative attire that is compatible with your personal style and the audience’s expectations. A couple of opinions on attire and appearance:

* Avoid bow ties. Keep to traditional suiting if at all possible.
* Choose jewelry carefully. Sparkles are distracting — including those in cuff links. And, expensive jewelry can create a gulf that interferes with having the jury “identify” with the lawyer.
* Arrange your materials in an organized and controlled manner. If you are constantly groping for exhibits, you might lose credibility.
* Use the space in the courtroom. Consult the rules and judge’s staff before trial on where and how freely you can move.

There is room to disagree about what to wear and how to look at trial, but there is no disagreement on the importance of appearing natural and comfortable. Whether or not you leave the bow tie at home, your appearance engenders confidence through projecting a powerful and controlled image.

As technology has evolved, there are now more ways than ever of showing exhibits in a courtroom. In my view, though, it is not the sophistication that counts, but how well the imagery persuades. Lengthy presentations, no matter how elaborate and well done, may bore the audience. Perhaps the most effective way to work with video at trial is to weave imagery into witness examinations, so that the oral testimony is reinforced by the visual, the abstract becomes concrete, and everyone in the room can see what the witness is reviewing as he responds to questions. Particularly during long direct or cross examinations, use of audiovisual aids helps keep the jury engaged in your story.

In civil litigation, objection-free depositions are unheard of. Attorneys pepper the transcripts with interruptions. In truth, though, they often make unnecessary objections or fail to make them properly. Conversely, attorneys sometimes waive objections by failing to raise them in a deposition. Here are some helpful guidelines for knowing when and how to object.

1. What objections are necessary?

At a deposition, an attorney is required to object to those defects that are immediately curable--that is, irregularities that opposing counsel can correct at the deposition. Such defects include procedural matters, such as the manner of taking a deposition, the form of questions or answers, the oath or affirmation, and the conduct of the parties.

Timely objections are necessary, for instance, where a question is leading, vague or unintelligible, mischaracterizes prior testimony, calls for speculation, or constitutes a compound question. Problems can also arise with answers. If the attorney taking the deposition believes the witness has not provided a responsive answer, that attorney should object accordingly.

Not all “immediately curable” defects relate to matters of form or procedure. Generally speaking, the rules place value on resolving problems as soon as they arise, and many substantive defects can be corrected simply by rewording questions. Consider this example, in which a plaintiff in an auto tort cases is being deposed:

Defendant’s counsel: Was the traffic light at the intersection red, yellow, or green at the time your car was struck by defendant’s car?

Plaintiff’s counsel: Objection, lack of foundation.

Defendant’s counsel: As you approached the intersection where your car was struck, did you have occasion to observe the traffic light facing you?

Plaintiff: Yes.

Defendant’s counsel: And what color was the traffic light?

Plaintiff: Green.

Many substantive objections cannot be resolved by a simple rephrasing. If an attorney asks about irrelevant matters, the questions will usually be objectionable no matter how the attorney poses them. For such an “incurable” defect, a timely objection is not necessary under Maryland Rule 2-415(g).

Where the interrogating lawyer asks a question that contains a substantive, “incurable” defect, opposing counsel can raise the objection when the deposition testimony is offered at trial, or as an exhibit to a motion. Might there be advantages of waiting until trial to raise objections? In some instances, yes. If the objection cuts to the heart of the adversary’s case, lodging it at trial could help diminish the opposing counsel’s courtroom ethos.

3. Privilege

If the deposing attorney asks a question that invades a witness’s privilege, such as the attorney-client privilege, the opposing attorney may instruct the witness not to answer. Maryland Discovery Guideline 6 states that where an attorney asserts a claim of privilege at a deposition, the attorney “shall identify during the deposition the nature of the privilege (including work product) which is being claimed” and shall provide certain information about the allegedly privileged communication, including the date and general subject matter of the communication.

4. Grounds

How should an objection be made? To be effective, an objection cannot be vague or unclear. Although Maryland Rule 2-415(g) states that the grounds for an objection “need not be given unless requested by a party,” this language presents a trap. If counsel objects to a deposition question that can be immediately cured, the lawyer must state the grounds to avoid waiving it. The objecting attorney must give enough detail to “provide the questioner with the opportunity to obviate the mistake while the deposition is taking place.” (See Davis, 117 Md. App. at 403-04.) This protocol affords the party taking the deposition the chance to re-word the question and cure any problems in it.

Objecting attorneys should be careful not to say too much, however. So-called speaking objections are improper under both the Maryland Rules and Federal Rules of Civil Procedure. When an attorney in a deposition objects, he or she must state the objection concisely, in a non-argumentative and non-suggestive manner.

What does a “suggestive” objection look like? To answer that question, we can turn to a recent decision, Faile v. Zarich, 2008 WL 2967405 (Conn. Super. 2008), in which a Connecticut trial court sanctioned an attorney for making suggestive objections. The opinion identifies several instances of improper interjections. Plaintiff’s counsel was deposing a non-party witness, Dr. Mitchell Driesman, when the following ensued:

Plaintiffs' counsel: And how would gaining access cause a branch of the femoral artery to be sheared off? What mechanically would have to happen?

Defense counsel: I am going to object. This is completely hypothetical. Are we talking about in this case, under a particular set of circumstances?

Plaintiffs' counsel: In the process of gaining access to a femoral artery.

Defense counsel: I just think that is beyond what-Dr. Driesman didn’t perform that part of the procedure. He wasn't there when that part of the procedure was performed.

To ensure full compliance with the rules, an attorney should keep objections short and to the point. The Committee Note to Rule 2-415 gives examples of concise, non-suggestive objections, which include: "objection, leading;" "objection, asked and answered;" and "objection, compound question." If an attorney believes a more detailed objection is necessary but could improperly coach or guide the witness, then any party can have the deponent excused during the making of the objection.
Given the complexity of the protocol governing objections, lawyers should periodically review the ground rules. Questions fly quickly during depositions, and attorneys can easily miss or bungle opportunities. Though they may be long and tedious, depositions often form the foundation upon which trials are won or lost, and a waived objection may allow damaging testimony into evidence.

John J. Lovejoy is an associate in the litigation department of Shapiro Sher Guinot & Sandler. Paul Mark Sandler, a partner at the firm, is the author Anatomy of a Trial: A Primer for Young Lawyers (MICPEL, 2008). They may be reached at jjlovejoy@shapirosher.com and pms@shapirosher.com, respectively.

In her article she discusses various social sites--Facebook, Linked In, MySpace—and strategies for culling information from each. This “due diligence” goes above and beyond a simple Google search when conducting research on the 6-12 people who will be making decisions about your case. And the point is well taken. The statistics speak for themselves: at least half of your jurors will have a social networking page.

Given the increasing popularity of these sites, it would be foolish to ignore them when doing jury research. Beware, though, that you can’t trust all the information potential jurors post about themselves on their Facebook or MySpace pages. With the public becoming increasingly concerned about online security, users are rightfully wary about posting potentially identifying information on the internet. And, of course, it’s easy for people to bend the truth or lie on such sites for whatever reason.

If we can take a lesson from a social networking site, it should be from Match.com, where we learn that “seeing is believing”. There is intrinsic value in laying eyes on a person and asking them specific questions tailored to your specific needs. No matter how revealing social networking pages may be, voir dire will still be crucial. When voir dire is permitted, take extensive time to evaluate your case and determine the types of people you think would be best suited and most harmful to your case.

Before attempting to show a video it is imperative to advise the opposing side of your intention to use the video and show it to them. This should be done with enough time before trial to obtain a court ruling. In most instances the applicable discovery rules will govern this situation. Additionally, when using videos it may be helpful to obtain testimony from a family member first and then introduce the video exhibit, which will corroborate key points. Once such a video has been viewed, you can ask the witness to review and explain the video, which will serve as a memory anchor for the jury.

Litigators should use caution, however, as histrionics are never appropriate. Avoid overly emotional appeals designed to manipulate the jurors. Such presentations may end up hurting your credibility.