Critical Pretrial and Trial Checklists

Checklists are critical to pretrial and trial work. To illustrate the importance of checklists, Dr. Atul Gawande tells the true story of an October 30, 1935 airplane flight competition that the U.S. Army Air Corps held at Wright Air Field in Dayton Ohio to determine which military-long range bomber to purchase. Boeing’s “flying fortress” was the likely winner. But, after the plane reached three hundred feet, it stalled, turned on its one wing and crashed, killing its pilot and another of its five crew members. The pilot had forgotten to release a new locking mechanism on the elevator and rudder controls. The plane was dubbed “too much airplane for one man to fly.”

Nevertheless, a few of the Boeing planes were purchased, and a group of test considered what to do. They decided that the solution was a simple pilot’s checklist. With the checklist in use, pilots flew the B-17 1.8 million miles without an accident. Dr. Gawande in his book The Checklist Manifesto: How to Get Things Right (p. 34) concludes, “Much of our work today has entered its own B-17 phase. Substantial parts of what software designers, financial managers, firefighters, police officers, lawyers, and most certainly clinicians do are now too complex for them to carry out reliably from memory alone. Multiple fields, in other words, have become too much airplane for one person to fly.”

Dr. Gawande who heads the World Health Organization’s Safe Surgery Saves Lives program recounts that after the World Health Organization introduced the use of checklists for surgeons, research of nearly 4000 patients showed the following: major complications fell 36 percent; deaths fell 45 percent; infections fell almost 50 percent. Rather than the expected 435 patients expected to develop complications, only 277 did. The checklist spared 150 patients from harm and they spared 27 of those 150 from death. (The Checklist Manifesto, p. 154)

Just as checklists are critical for pilots and doctors, they are necessary for trial lawyers as well. At the end of almost every chapter in both Pretrial Advocacy, 5th Edition and Trial Advocacy 4th Edition is a checklist of matters that are essential to effective pretrial and trial advocacy. The following is an example of a checklist that follows the Closing Argument chapter in Trial Advocacy

CLOSING ARGUMENT CHECKLIST

Preparation

 Preparation begins soon after entry into the case. Counsel should keep notes of ideas for closing.

 Prior to trial, write the closing argument, with final editing during trial. Reduce closing to outline notes.

 Rehearse closing argument. Just like opening statement, commit concluding remarks to memory so they will flow smoothly.

Content 

 Case theories should serve as guides for planning closing.

 Regarding the legal theories, jury instructions, among others, serve as the core around which to craft closing argument:

 Elements of the claim or defense,

 Burden of proof,

 Issues in dispute, and

 The other side’s case theory.

 In arguing the factual theory, counsel should use jury instructions that pertain to crucial facts, as well as a story embodying those facts.

 The case theme should be incorporated into the closing.

 Closing should meet the other side’s case theory and attacks.

 Juror beliefs and expectations that could be detrimental to the case should be identified, met, or distinguished from your case.

Length

 Length of closing should be suitable to the complexity of the case, and should not run overly long.

Aristotelian Appeals 

 Closing should make all three appeals: logical, emotional, and ethical.

 Persuasive language should include:

 Words with connotations, and

 Rhetorical devices, such as postponement, concession, anti¬thesis, metaphors, similes, analogies, and rhetorical questions.

Structure 

 The closing should begin by seizing the jury’s attention.

 The body of the closing should be well organized, emphasizing the strengths of the case before dealing with case weaknesses or the other side’s attack. 

 The closing should conclude by referring to the theme and reasons for the requested verdict, thus motivating the jury to make the right decision.

 Rebuttal should refute the other side’s arguments and finish strong.

Bench Trial 

Counsel should:

 Be prepared to answer the judge’s questions during closing.

 Not spend an inordinate amount of time explaining the basic law in the case. 

 Assist the court in making findings of fact and conclusions of law.

 Make logical and ethical arguments. Do not seek to appeal the judge’s emotions, except as telling of the facts evokes emotion.

 Be concise and to the point.

 Be candid, accurately stating the facts and law, and conceding what should be conceded.

Delivery 

Counsel should:

 Project sincerity;

 Avoid distracting behavior, such as pacing back and forth;

 Maintain eye contact with jurors or judge;

 Deliver the closing with a minimal outline;

 Position her body to hold the fact finder’s attention; and

 Make purposeful movements.

Counsel should use trial visuals effectively:

 Ensure use is permissible,

 Make visuals persuasive,

 Position equipment and visuals appropriately, and

 Have a backup plan if equipment malfunctions.

Ethical Boundaries

 Counsel should not state a personal opinion.

 Counsel should not venture outside the record.

 Counsel should not introduce irrelevant matter.

 Counsel should not invoke the golden rule.