The Second Chair

Friday, December 19, 2014 - 09:27

Serving as second chair on a jury trial is one of the most exciting opportunities for an aspiring trial attorney. As second chair, an attorney is responsible for ensuring that everything runs smoothly during trial. That means keeping track of everything that needs to happen behind the scenes, including preparing exhibits, witnesses, pocket briefs, jury instructions and notes for closing argument – all with an eye toward properly maintaining a record for appeal. It is not just a front row ticket to a jury trial but also on-the-job training for becoming a successful trial attorney. Here is some practical advice for future second chair attorneys.

Communication

Attorneys often leave discussions about the conduct of trial to the last minute while they are busy preparing pre-trial documents. But failing to discuss overall goals and to assign projects in advance makes for a hectic, stressful and disorganized trial. Weekly meetings are a must. And at least thirty days before trial, team members should discuss their specific responsibilities before and during trial. That way, each attorney can keep track of his tasks and spot new issues as they arise.

Presentation

Jury trials are fascinating and complex performances. How a lawyer interacts with the judge, opposing counsel and co-counsel speaks volumes about her character, which in turn influences the extent to which jurors will allow her to persuade them. Always be polite, professional, and respectful in and around courthouse, including the hallways, bathrooms and elevators. Jurors glean information from everything that happens around them and are especially attuned to gestures and body language. Even when they cannot hear what attorneys are saying – as in the case of sidebars or client conferences – they are often watching more intently than ever.

Voir Dire

While the lead trial counsel is usually responsible for asking voir dire questions, the second chair’s job is to make note of the jurors’ various backgrounds, answers and reactions to the questions presented to them. This can be a difficult task, as things happen very quickly in voir dire. While the best tools to keep track of this information used to be a pencil, post-it notes and a jury selection form, there are now effective apps for keeping track of information regarding each juror in the box and the number of remaining peremptory challenges. Trial attorneys should always confer about which jurors to excuse, not only because two heads are better than one, but also because it establishes early on that the attorneys are working together as a dynamic team.

Trial Technology

Some form of technology is necessary in making an effective trial presentation. Presentational methods can run the gamut from easels with poster board blow-ups to overhead projectors to high-tech PowerPoint presentations involving computer graphics and animation.  Part of the second chair’s job is to make sure that these tools help rather than hurt the flow of trial by eliminating delays and streamlining transitions. A diligent second chair should also consider other kinds of evidence that might be used at trial, such as video deposition footage. Video footage of hostile witnesses – often not as well dressed or well behaved as they will appear in court – can be very powerful. While hostile witnesses can often explain away their testimony read by an attorney, they will often find it impossible to credibly refute themselves on video. Lastly, remember to check with the court clerk well in advance of trial about what kind of space is available and what technological constraints are present in the courtroom. Often, clerks will allow attorneys to schedule a time before trial to test their equipment in the courtroom. Preparing in advance to ensure that technology runs smoothly is certainly worth the effort.

Exhibits

Exhibits can be the bane of any second chair’s existence during, before and even after trial, especially if there are lots of them. During pre-trial conferences, attorneys on both sides should work together to eliminate and reduce duplicative exhibits. Before trial, second chairs should make sure that all the exhibits are complete and accurate, as well as determine how each document may be admitted during trial. Complete sets of exhibits should be available to each party, the judge and the witnesses. If there are a lot of exhibits, assisting attorneys should maintain them at counsel’s table in ways that are easy to access and reference, for example, with color coding and numbering. In addition, it may be useful to create special binders or folders for each witness that include only the exhibits upon which they will be questioned in the order in which they will come up.

One of the main tasks of the second chair is to keep track of when and which exhibits are introduced, marked and entered. This can be much harder than it sounds. Important exhibits may be denied entry into evidence through a particular witness, or the lead attorney may simply forget to do so. The second chair should ensure that all key exhibits have been moved into evidence.    

Witnesses

Trial witnesses are often the most unpredictable part of trial, and preparing them can be extremely stressful and time-consuming. They are, of course, vitally important, as they shape the presentation of evidence to the jury. Lead counsel should confer before and throughout trial as to what witnesses should be called, in what order they should be called, and any notice requirements or agreements that should or have been made with opposing counsel. Trial subpoenas should be served well in advance of trial, as some potential witnesses may be difficult to reach or intentionally evading service. Once witnesses have been served, assisting attorneys should have them enter into on-call agreements so that they appear when needed rather than on the first day of trial. The time it takes to elicit testimony from witnesses is difficult to anticipate, so it is important for second chairs to keep witnesses fully apprised of events as they happen.

Objections

The second chair’s role is not to make objections; nonetheless, she can and should do several things to assist lead counsel. If the court has overruled the lead attorney’s objection, the assisting attorney should immediately inform lead counsel of any alternative basis for an objection. Diligent second chairs should have a cheat sheet of potential objections and the elements needed for a proper offer of proof.

In addition, assisting attorneys should be vigilant of instances in which, as is often the case, courts deny or defer their rulings on objections. For example, a judge may deny a motion in limine without prejudice or overrule an objection subject to opposing counsel establishing a proper foundation for the evidence. In these circumstances, the second chair’s role is to remind lead counsel to renew the objection or to obtain a ruling from the court, and if necessary, to make a motion to strike at the appropriate time. Also, it is important to ensure that objections made off the record – such as during sidebar or in chambers – are made part of the record for appeal. Second chairs should therefore maintain a list of objections that must be renewed and rulings that have been deferred.

Jury Instructions

As second chair, a young attorney should not assume that she may simply use the model jury instructions. Instead, she should anticipate legal issues that are likely to come up during trial beyond the basic elements and defenses of the claims. Pocket briefs prepared in advance on contested special jury instructions are often a great idea. And if the judge refuses to give a legally correct, well-drafted instruction, the second chair should ensure that both the judge’s refusal and the proposed instruction are part of the record for purposes of appeal.

Special Verdicts

Second chairs may also have to research and prepare special verdict forms. Verdict forms must require the jury to determine every controverted element of each claim. Keep them simple, clear and easy to follow. Resist the temptation to draft the forms in a biased or preferential manner, because doing so is not only ethically dubious but also raises unwanted appealable issues.

Closing Statements

While attorneys have plenty of time to prepare before the beginning of trial, summations often get thrown together during and near the end of trial. This is unfortunate because they are primarily about organizing the evidence – which for the most part is presented to the jury during trial in a messy, disjointed manner – into an easy-to-understand and persuasive argument. It is often up to the second chair to take exhaustive notes throughout trial in preparation for closing arguments, categorizing points of evidence by their relevance to the jury instructions and special verdict forms and considering their effect on the credibility of witnesses. 

Above all, closing arguments must clearly and definitively outline the legal elements of the claims and defenses at issue. An attorney has failed to do her job if she allows a jury to walk into the deliberation room without understanding how the law – specifically applied to the evidence – results in a verdict in favor of her client. Summation also presents the opportunity for an attorney to demonstrate how she proved the story that she told during the opening statement, and how opposing counsel failed to fulfill his promises during his opening statement. Therefore, during the trial, the second chair should remember to keep track of how the evidence stacks up to the opening statements for use in the closing argument.

Conclusion

Although taking on trial as a young attorney can seem overwhelming, the experience can be extremely rewarding. Attorneys who “second chair” trials are not expected to know everything, but they should be well prepared, anticipate issues that may come up, be nimble enough to resolve the ones that they cannot anticipate, and never be afraid to ask questions. Mistakes will probably happen, but they are all a part of becoming an experienced trial attorney. 

Jeffrey Huron is a Member of the Business Litigation Group in Dykema's Los Angeles office. With more than 25 years of experience litigating and arbitrating business, real estate and entertainment disputes, he has tried and won several multimillion dollar, high-stakes cases for a wide range of clients. He is a Member of the National Trial Team. Phu Nguyen, a Los Angeles-based attorney in the firm's Business Litigation Group, focuses her practice on civil business litigation including trial, motion, appellate and discovery practice. She has significant trial experience as well as expertise in copyright and trademark litigation. She has served as second-chair on multiple occasions, including trial of a commercial real estate dispute against a major financial institution resulting in a seven-figure jury verdict.

Please email the authors at jhuron@dykema.com or pnguyen@dykema.com with questions about this article.