TRIAL TECHNIQUES, PREPARATION & PRACTICE

Glen E. Amundsen
SmithAmundsen LLC
150 N. Michigan Ave.
Suite 3300
Chicago, IL. 60601
Voice: (312) 894-3220
Fax: (312) 894-3210
E-mail: gamundsen@salawus.com
Website: www.salawus.com

THE ART OF PERSUASION

Anyone who accepts the responsibility of being trial counsel for a client has also
accepted the burden of learning everything possible about the psychology of how
people decide contested matters. The best trial lawyers are keen observers of human
nature and understand the sometimes complex manner that humans assimilate
information and make decisions. They understand intuitively and through lifes
experiences what resonates with people. They have a feel for how decision making is
accomplished in a complex world where there are often competing interests and
sometimes no clear right or wrong.
What are the most effective means to follow in the art of persuasion? How do
jurors (and judges in bench trials) decide a case? As a general rule in close cases
juries and judges decide cases based upon who they like and trust and against
those they do not like and trust. Within that concept it is the principle of trust that
is most important. Consequently, everything that a trial attorney does in the
courtroom and in preparation of the engagement for trial should advance efforts to
secure the trust of the jury and the presiding judge in your client, in the key witnesses
essential to the case for your client and in you as the advocate for your client in court.
Among the other key principles about jury decision making I have learned in my
experience as a trial advocate are the following:

Jurors most often use deductive reasoning to sort out what they believe occurred
when there are competing versions to pick from. That is, they work backwards
from their construct of what happened to reconstruct how the end result
occurred, i.e. what really happened;
Jurors often rely on a story model to make sense of the facts narrative/story
telling by witnesses and trial counsel is good. A good trial lawyer is a story teller
from beginning to end;
Jurors tend to default to their own preconceptions determined by their lifes
experiences and their worldview when they are not sure what really happened;
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Jurors are very likely to follow their notions of the motive(s) of the key actors in
the story. They look at motives as helping determine whether it is reasonable or
not for people to behave in the manner they have testified to;
Primacy and recency are very important psychological factors when it comes to
juror recall and comprehension. That is, jurors remember best what they heard
first and what they heard last. Repetition of themes and key evidence is a good
thing (within reason);
Jurors (and judges too) make decisions much more quickly than any trial lawyer
would like to believe. In many instances jurors have made up their mind during
voir dire or before opening statements are concluded. To a large degree they
spend the rest of the trial listening for the evidence or arguments that will support
their point of view (consciously or subconsciously) when they are in the jury room
to deliberate. In other words they become advocates (knowingly or not) and may
take in the evidence as partisans. In the absence of compelling evidence to
change their initial assessment, jurors are not likely to sway from their initial gut
reaction to a case. This has serious implications for the trial lawyer especially as
it relates to getting to the point quickly and early in the case; and
Jurors are increasingly visual learners trial lawyers need to be adept at
communicating in means that are visually persuasive. Just telling the story is not
enough. Trial lawyers have to show decision makers the key evidence and
concepts too.
PREPARING A WINNING GAME PLAN

With these principles in mind, what follows are some key concepts or ideas that
should be considered when it comes to preparing a winning strategy and implementing
it at trial.
I.

Case Theme/Theory

Effective trial advocates can articulate their theory of the case within a few
succinct sentences in clear language that is easily understood. That theme or theory
must be communicated from the beginning of all interactions with the presiding
judge and the prospective jurors. If the theme cannot be written on the back of
your business card, you should consider revising it until you can. The KISS
principle applies here. Keep it simple and comprehensible. The theme should be
apparent from the questions posed in voir dire. It should be central to the opening
statement. It should be revisited and developed in the direct and cross examination of
the witnesses. Finally it should be framed at the beginning and ending of your
summation.
In almost all cases there are certain questions that must be answered positively
from the standpoint of your client in order for the jury to decide the case favorably. You
should spend time early in the case thinking about it in the context of those likely
questions. How will you marshal the available evidence to answer or address those
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questions or issues? That has to be decided before you are in the courtroom and the
opposing counsel is addressing them to the jury for you. You want to affirmatively set
the ground or issues on which the case will turn, not allow opposing counsel to set the
agenda for you. Your theory of the case should be tied in to the answers to those
questions that you feel are crucial to the outcome.
II.

Communications Strategies

Good trial lawyers think like lawyers but talk like human beings. Avoid legal
jargon and terms of art. Speak plainly about why your client should win and the
factual basis for that conclusion.
In communications with the jury you want them to be identifying with your client
about some key issues:

Common understanding of the case what happened and why it is likely that it
happened as you say in contrast to what the other side says;
Common questions in the jurys mind you want them to identify with what you
say are the issues not what the other side says is important;
Common suspicions about the opposing partys case you want them to be
asking the same questions of the other sides evidence that you are.

It is critical to plan how ideas or concepts will best be communicated to the jury.
This can be accomplished by means of testimony from the witness stand, exhibits or
documentary evidence. Decide how and when (not whether) to use graphics and visual
aides to communicate. This can include the use of Power Point, trial presentation
software and the like to call out or highlight key evidence.
Above all keep in mind the basic commandment: Thou shalt not be a bore. After
all, sleeping jurors simply will not do when it comes to persuasion.
III.

Work with Your Client and Key Witnesses on the Communication of Their
Part of the Story

Witnesses should be prepared to do well at trial not be coached. They need to be

introduced to what happens in the courtroom and how to be comfortable with their role
there. Remember your client and key witnesses must be trusted and liked by the
jury or judge. These people need to work on their communication skills (not just
you).
Witnesses should be taught the basics about communication in the courtroom
setting:

Look the judge and the jury in the eye;

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Respond openly and directly to questions do not be nonresponsive or

argumentative;
Be sincere;
Do not change your story- stay consistent with prior statements or deposition;
Keep language simple and direct - do not ramble

IV.

Prepare the Judge for the Issues in the Case

You have lived with the case for perhaps years. In all likelihood, you have given
much thought to the evidence and how it will be used by you and your opposing counsel
at trial to prove or disprove the case. Under these circumstances is not demeaning to
the presiding judge to presume that he or she has not. Make an effort at an early stage
to acclimate the court to the legal issues and evidentiary problems that you anticipate
will be raised.
Check the courts web site, the local rules, or take the time to speak with his/her
clerk. Does the judge require pretrial submissions of motions in limine, trial briefs and
the like? It is never a bad idea to prepare a simple and concise trial brief that
outlines the issues in dispute, the evidentiary issues that are likely to come up
during the trial, and to give the court the relevant authorities and rationale for the
proper ruling.
The trial brief should be clear and uncluttered. Copies of the key cases should be
supplied for the courts ease of reference. As with all filings there should be no
exaggeration or hyperbole.
This is part of the process of gaining the trust of the trial judge. Judges are
human. They want to be right as often as possible. While they do not control (to any
great degree) what evidence is going to be presented, they are looked to make rulings,
sometimes pivotal ones, on very short notice. They will come to have confidence in the
lawyer(s) that provide them with an understanding of the issues and controlling case
authorities or statutes that govern the admission of evidence and other issues they must
decide. While there will usually be no overt favoritism, it is only natural that after awhile
when there are close calls the court may tend to default to the position of the attorney
that has gained the confidence or trust of the judge. This is part of a conditioning
process that is subtle but is happening in every case as the judge becomes acquainted
with the case and the relative capabilities of the counsel working in his/her courtroom.
V.

Have a Very Good Command of the Rules of Evidence

It is also clear that jurors take cues from the judge and court personnel about the
trial lawyers and the behavior of witnesses in the courtroom. After awhile the jury begins
to have more confidence in the validity of arguments of the lawyer who is able to get
evidence in and who is sustained when objections are made. There is greater trust in
what is being advocated by those who know how to apply the rules of evidence in
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court. Make sure that you have considered the basis for the admission of all key
evidence before it is proffered in court. Make sure that you have the ability to lay the
proper foundation for every key exhibit or opinion. Make sure that you have anticipated
the likely objections that opposing counsel will make and be prepared with the argument
or basis for your position.
Work with witnesses ahead of time as it relates to the required foundation for
introduction of testimony. Be sure there are no crossed up witnesses who do not
understand what it is you are asking when it comes to foundational matters.
Remember that the standard of review applied to a trial courts evidentiary rulings
is almost always abuse of discretion. The time to present the most cogent case for the
admission or exclusion of evidence is in trial court. It is difficult to secure a reversal of a
trial result on evidentiary grounds because of the difficulty in establishing an abuse of
discretion by the trial judge and /or the inability to convince a reviewing court that the
ruling was prejudicial even if it was wrong.
VI.

Direct Examination

Here is where the art of the story teller is most prominent. The object of the
questioning should be to tell the story in a clear, concise and uncluttered manner.
Thought should be given to the order of proofs so that proper foundation has been laid
for later evidence or witnesses. On direct examination the questioner wants to do
less of the talking and for the witness to do most of it. The tone should normally be
conversational and friendly. Now is the time to explain, justify conduct, provide
motivation for the actors and expound.
In the case of expert witnesses the most effective direct examinations are where
the expert witness assumes the role of a teacher. The proffering lawyer needs to know
how to direct the teacher onto the right topics and make sure the testimony is in a form
that meets the standards for admissibility. After that the object is to step aside and allow
the expert to gain the trust and confidence of the jury through demonstrated
competence about a subject beyond their knowledge or experience.
The basic outline to persuasively present the testimony of an expert witness is as
follows:

General qualifications background, education, training or work experience

pertinent to the case (i.e. a board certified doctor for e.g. a plastic surgeon)
Specific qualifications specific experience that relates to the issue raised in the
case (within the field of plastic surgery, the witness heads up the burn clinic at a
major hospital)
Case specific experience outline what the expert reviewed in this case
(depositions, exam of the scene, photographs, medical records, medical
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examination, review of professional literature and other things done to prepare to

give opinions)
Offer of the witness as an expert
Ask the expert for his/her opinion on the issues that require expert testimony
Ask the expert to explain the bases for his/her opinion (this is where the teaching
takes place)
Conclusion restate or sum up the opinion(s) and tender the witness for cross

The decision to redirect a witness or not is a gut decision that must be played
based on a myriad of factors. However, in my experience attorneys redirect too much
and tend to over react to the cross examination. If redirect is done it should be short and
sweet.
VII.

Cross Examination

In contrast to direct examination, on cross examination the questioner

wants to be doing most of the talking. The object is to ask tight questions that are not
subject to interpretation. Form is best when a response requires yes or no answers. The
object is to control the witnesses to the greatest extent possible. Careful thought should
go into preparation for cross examination. The questioner needs to be prepared to
establish or prove the points he/she is eliciting with means that cannot be disputed by
the witness (for e.g. prior deposition testimony, records or documents already
authenticated and in evidence).
Careful consideration should be given to the decision of whether to cross
examine a witness in the first instance. I have found that it is useful to engage in cross
examination for one of the following purposes. Reasons to cross examine a witness are:
1.
2.
3.
4.
5.
6.
7.
8.
9.

To get good stuff into the record (that opposing counsel did not bring out);
To discredit the oath taken by the witness (inability of the witness to understand
and appreciate obligation to tell the truth);
To test accuracy of the witness memory (usually with contradictory documentary
evidence or exhibits);
To test the perceptions of the witness and/or his/her ability to observe what has
been testified to;
To test the validity/accuracy of the assumptions underlying the testimony
(especially expert witness testimony);
To establish bias (preconceived opinions or position of the witness);
To establish interest in outcome (financial interest as opposed to preconceived
ideas about the outcome);
To impeach (bring out prior inconsistent statement or conduct); and
To question the character of the witness (bring out other facts that would
question credibility or cause distrust of the witness by the trier of fact).

If the questions that are being posed are not intended to do one or more of
the above then you should not step up to cross examine a witness.
I have found that it is often useful to conduct cross examination from a construct
of agreement as opposed to confrontation to the greatest extent possible. Starting out a
series of questions with the phrase Can we agree that is a very useful means to
control a witness without appearing overbearing. This can be used as a means to keep
the witness off guard or to avoid the impression that the attorney is ganging up on a
witness. It is often better than using a more provocative tone in many instances, for
example, phrasing questions with the proverbial Isnt it true that. or Isnt it a fact
that There are, of course, scenarios where it is very appropriate to be more
aggressive with the form of the question. This is a matter of style that needs to be
played consistent with the theme of the case. Too many attorneys loose the jury by
turning into a sort of attack mode when there are more subtle approaches that are just
as effective depending on the nature of the case and the witness being examined.
VIII.

Preparation and Time Considerations

The best way to prepare for trial is to prepare the jury instructions (this requires
identification of the issues in dispute and burden of proof) and to prepare the closing
argument (this requires marshaling the factual evidence to support the case theme or
theory). A more detailed checklist of the proper preparation for a trial is attached to
these materials as Exhibit A). Skilled trial lawyers also anticipate their opponent while
they are still in the planning phase of their trial preparation. Effective trial lawyers
prepare their opponents case in order to be best situated to counter the
opponents points and arguments.
The most successful trial attorneys are respectful of the time of others. They are
prepared. They are on time to court and they demonstrate that they have command of
the facts, documents/exhibits and trial process. They do not ask repetitive questions or
go over old ground excessively. It is clear from my experience that jurors are most
negatively impacted by perceptions that lawyers or the court and the lawyers are not
respectful of the time they are taking from their important affairs to do their civic duty to
decide the case. Excessive needless objections, delay in scheduling witnesses,
excessive sidebars and time outside of the courtroom should be avoided as they will
cause resentment to be visited on some or all of the parties seen to be the cause of
those delays. Counsel should be prepared to stipulate to matters that are not in dispute
in order to expedite the trial.
IX.

Demeanor and Civility

The foremost consideration here is that good trial lawyers never let it get
personal. They do not loose their temper. It is never good to allow the jury to see you
flustered by a ruling or by provocative conduct by other counsel involved in the case.
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Likewise, it is not useful to allow a witness to get under your skin or for you to attempt to
do that to a witness or opposing counsel.
It is a matter of respect to stand when addressing the court at any time when
court is in session. Direct witnesses and your client to be compliant with all court rules
and to treat all court personnel (clerks, Sherriffs deputies, etc) with the same courtesy
and respect that is shown to the presiding judge. Ask your client and all witnesses to
rise when court is commenced and adjourned. Ask your client to refrain from excessive
communications or side bars with you while the trial is in progress. I give my clients a
note pad and ask them to write their questions or concerns on the pad if they need to
communicate with me while court is in session. All cell phones, pagers and the like
should be off and stowed away where they cannot disrupt court sessions.
All comments, objections or requests for relief should be directed to the court
while court is in session. It is never a good idea to be observed arguing or engaged in
discussions with opposing counsel in the presence of the jurors or while they are
entering or leaving the court facilities when court is adjourned.
Like many things in life the best advice for the proper conduct and etiquette of an
effective trial lawyer remains the same as what our parents preached when they sent us
off to kindergarten or preschool:

Stand up straight
Be nice
Look people in the eye
Speak up
Dont make a mess

TRIAL PRACTICE NUTS & BOLTS OF SOME KEY PARTS OF THE TRIAL
I.

Trial Subpoenas
1.

When a subpoena has been served but the trial does not proceed on the
date indicated, a motion to continue the effective date of the subpoena or
direct the witness to appear on a different date must be made. O'Brien v.
Walker, 49 III. App. 3d 940, 364 N.E.2d 533 (1st Dist. 1977).

2.

A court wilt not review the question of whether the trial court erred in
failing to compel attendance of witness where the trial subpoena is not
made part of the record. Schmitt v. Chicago Transit Authority, 34 Ill. App.
2d 67, 179 N.E.2d 838 (1st Dist. 1962).

II.

Motions in limine
1.

2.

Motions In limine are pre-trial orders used to exclude admissible evidence

and prohibit interrogation concerning the evidence. The motions should be
presented in writing and state with specificity the evidence sought to be
excluded. Lockett v. Bi-State Transit Authority, 94 Ill. 2d 66, 445 N.E.2d
310 (1983).
a.

A party waives any error in the granting of a motion in limine

where it fails to make clear to the court what the testimony would
be, what the basis for the testimony is and whether the witness is
competent to testify. Young v. City of Centreville, 169 Ill. App. 3d
166; 523 N.E.2d 621 (5th Dist. 1988); Mulhern v. Talk of the
Town, 138 III. App. 3d 829, 486 N.E.2d 383 (2d Dist. 1985).

b.

A moving party should prepare proposed written in limine orders

prior to trial rulings to avoid confusion and misunderstanding
inherent in oral rulings. Lundell V. Citrano, 129 III. App. 3d 390,
472 N.E.2d 541 (1st Dist. 1984). It is imperative that all parties
have a clear understanding of the limitations imposed by the
order. Reidelberoer v. Highland Body Shop, Inc., 83 Ill. 2d 545,
416 N.E.2d 268 (1981).

c.

There is no wavier of any assignment of error if it is clear that the

trial court understood the nature of the objection and the character
of the evidence sought to be introduced or when the questions
themselves and the circumstances surrounding them show the
purpose and materiality of the evidence. Tolefree v. March, 99 III.
App. 3d 1011, 425 N.E.2d 1247 (1st Dist. 1981).

d.

A motion in limine is an interlocutory order and remains subject to

reconsideration by the court throughout the trial. Reid v. Sledge,
224 Ill. App. 3d 817, 587 N.E.2d 1156 (5th Dist. 1992). When the
trial court reserves its ruling on a motion in limine, the party must
obtain a ruling in order to preserve the matter for review. Selbv v.
Danville Pepsi-Cola Bottling Co., 169 III. App. 3d 427, 523 N.E.2d
697 (4th Dist. 1988).

The denial of a motion in limine does not preserve an objection to the

disputed evidence later introduced at trial and the moving party remains
obligated to object contemporaneously when the evidence is offered.
Krengiel v. Lissner Corp., 250 III. App. 3d 288, 621 N.E.2d 91 (1st Dist.
1993).

3.

III.

If a party violates an in limine order, the opposing party must object

specifically on this ground in order to preserve the error. Stennis v.
Rekkas, 233 Ill. App. 3d 813, 599 N.E.2d 1059 (1st Dist. 1992). For
example:
a.

Plaintiff waived any claim of prejudicial error regarding a doctor's

references to the report of another doctor, even though plaintiff's
motion in limine sought to limit or exclude references to the
doctor's report in the testifying doctor's deposition; plaintiff's
motion did not request exclusion of all references to the report,
and plaintiff did not object to defendant's cross-examination of a
witness regarding the report and did not object to defendant's
closing argument in which defendant repeatedly referred to the
report. Reitz v. Griffin, 244 Ill. App. 3d 490, 612 N.E.2d 1054 (5th
Dist. 1993).

b.

Plaintiff waived for appellate review the issue of whether the

testimony of defendant's expert violated any motion in limine or
rule governing disclosure of expert witnesses where plaintiff
objected on specific grounds that speculation was required of the
witness and did not make any objection on the grounds that the
testimony violated the rule regarding disclosure of experts or
violated the order in limine. Baird v. Adeli, 214 Ill. App. 3d 47, 573
N.E.2d 279 (4th Dist. 1991).

4.

Failure to include the motion and order in limine in the record on appeal
results in a waiver. Pharr v. Chicago Transit Authority, 220 Ill. App. 3d
509, 581 N.E.2d 162 (1st Dist. 1991).

5.

A party is not required to object in front of the jury each time to preserve
for appeal a challenge to the admission of evidence; rather, a party may
object once, outside the presence of the jury, and ask for a continuing
objection. Romanek-Golub & Co. v. Anvan Hotel Corp., 168 Ill. App. 3d
1031, 522 N.E.2d 1341 (1st Dist, 1988).

Voir Dire Examination

1.

The record must show that peremptory challenges have been exhausted
before alleging error in the selection of the jury. Davis v. Marathon Oil
Co., 28 III. App. 3d 526, 330 N.E.2d 312 (4th Dist. 1975), rev'd on other
grounds, 64 Ill. 2d 380, 356 N.E.2d 93 (1979).

2.

The voir dire, examination of the jury must be transcribed and made part
of the record if the reviewing court is to consider any errors committed
during voir dire. Gonzalez v. Prestress Engineering Corp., 194 Ill. App.
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3d 819, 551 N.E.2d 793 (4th Dist. 1990). An attorney's affidavit detailing
what transpired is insufficient. Prochnow v. El Pam golf Club, 253 Ill. App.
3d 387, 625 N.E.2d 769 (4th Dist. 1993).
3.

Waiver:
a.

By failing to contemporaneously object to questioning of a

prospective juror during voir dire a party waives the issue on
appeal. Drews v. Gobel Freight_Lines, Inc., 144 Ill. 2d 84, 578
N.E.2d 970 (1991).

b.

Whether a juror was properly permitted to serve on the jury will

not be considered on appeal where no objection to .the juror's
presence is raised at trial. Stewart v. Alvfarez, 182 III. App. 3d
698, 538 N.E.2d 646 (1st Dist. 1989).

Illinois Supreme Court Rule 234

Court shall put questions to the prospective jurors that touch upon their
qualifications.
Court shall permit the parties to supplement the courts examination by
direct inquiry subject to courts discretion as to length and scope of voir
dire.
Questions posed shall not directly or indirectly concern matters of law or
jury instructions.

Note: It is error for the court to prevent counsel from supplementing the courts
voir dire by direct oral inquiry to the prospective jurors. See Grossman v.
Gebarowski, 315 Ill.App.3d 213, 732 N.E.2d 1100 (1st Dist. 2000). This does not
mean that counsel may not ask the court to put questions to the jury so that the
questions are not posed by the counsel for a particular party. It is possible for
counsel to submit proposed areas of inquiry on voir dire to the court to be asked
directly by the presiding judge.
Challenges
735 ILCS 5/2-1105.1 (Challenge for cause)

E.g. admitted bias; pending suit in Circuit Court where case on trial is
pending; physical impairment making potential juror unable to serve;
inability to understand or appreciate the evidence; affiliation with one of
the parties, attorneys or court officers.
No limit on the number of challenges available for cause.

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Practice Tip: If motion for cause is made in the presence of the venire and
denied, a peremptory should be exercised.
735 ILCS 5/2-1106 (Peremptory challenge)

Five peremptory challenges per side.

If there is more than one party on any side, the court may allow each
additional side further peremptory challenges not to exceed three for each
additional party on the side having the greatest number.
Each side shall be allowed an equal number of challenges.
If the parties on a side of a case cannot agree as to the distribution of
peremptory challenges between them the court will allocate them between
parties.
May not exercise peremptory challenges for reasons of race or gender.
See Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69
(1985) (racial discrimination) and Edmonson v. Leesville Concrete, 500
U.S. 614, 111 S.Ct. 2077, 114 L.Ed.2d 660 (1991) (applying Batson rule to
civil cases); J.E.B., Petitioner v. Alabama, ex. rel. T.B., 511 U.S. 127, 114
S.Ct. 1419, 128 L.Ed.2d 89 (1994) (gender).

Practice Tip: Counsel should attempt to exercise peremptory challenges outside

the presence of the venire if possible.
Counsel should be prepared to articulate a race neutral or gender neutral basis
for a peremptory challenge if opposing counsel attempts to make a prima facie
case of improper discrimination in the exercise of a peremptory challenge.
Preserving Error During Jury Selection

Failure to have a transcript of the jury selection and voir dire examination
will likely result in waiver of any alleged improprieties during the course of
voir dire. See Crossman v. Curless, 178 Ill.App.3d 97, 532 N.E. 2d 1110
(4th District, 1988).
Waiver on motion to challenge for cause occurs if counsel fails to object to
a prospective juror and then fails to exercise peremptory must use up all
peremptory challenges allocated and make a record. Proper procedure is
to: (1) remove the juror who the court refused to remove for cause with a
peremptory challenge; (2) ask of an additional peremptory challenge after
all other peremptory challenges allocated by the court have been used;
and (3) make a motion for a mistrial after the court denies the request for
an additional peremptory. See Marcin v. Kipfer, 117 Ill. App. 3d 1065, 454
N.E.2d 370 (4th District 1983).

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Jury Selection Suggested Best Practice Techniques

Some general points to keep in mind

In relationships first impressions count very much - people develop quick

opinions and thereafter seek basis to support their judgments. Initial
impressions can be changed but you have a long row to hoe if you start off
with a bad impression.
Jury selection is not cross examination or inquisition. There is no answer
that you dont like in voir dire (at least insofar as you let the prospective
jurors know). Dont ever talk down to a prospective juror.
This is your only chance to hear the jurors who will decide the case before
they are explaining their verdict on the way out of the court room - it is
good to listen in voir dire more than you talk.
Like any introduction involving strangers be careful about invading their
space before they are comfortable who you are.
How to Conduct Voir Dire - Style

Stand up straight and speak in plain concise English drop the legal
vernacular and terms of art.
Move about the courtroom if you are comfortable but do not advance too
closely to the jury box or prospective witnesses being questioned.
Use the names of the people you are speaking to. Use their title such as
Mr. or Ms. and their surname. Ask for pronunciations.
Make direct eye contact when you are speaking to an individual or group.
Have someone else make written notes or, if that is not possible, save
your written notes for when you sit down and tender the panel to opposing
counsel. Instead make good mental notes and assessments of the
characteristics you feel are noteworthy about each person.
Just like cross examination, sometimes less is more. Be careful with too
much questioning and especially repetitive questioning. Understand that
many are tired and/or bored having heard the same questions and
answers many times.
Quiet confidence and competence are the order of the day. Prospective
jurors have expectations about counsel and how they should behave.
They will begin to sense who has command and control of what they are
doing. That party will gain credibility if technical competence and
confidence (or at least the perception of it) favors one attorney over the
other. You should know (generally) the type of juror that you are
attempting to select. Too much hemming and hawing about challenges is
detrimental in the presence of the jury. If time is required for reflection ask
the court for a sidebar or recess where the jury is not watching you ponder
which of them will need to be there for the next week or two.
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How to Conduct Voir Dire Substance

Have case themes or objectives in mind. Develop questions that touch

upon that theme or issue without indoctrinating. For example if the
defense theme is that the plaintiffs own conduct caused his injuries
(comparative fault) it is possible to ask prospective jurors something like:
Can you explain how your performance is measured in your job? or
What happens in your work place if required standards are not met
what are the consequences? You want to test whether they will hold
people responsible for their own conduct or give them a pass.
Make the questions open ended. Use questions that ask what prospective
jurors think or how they feel as opposed to starting out with Do you
agree.
Test bias in a manner that does not indoctrinate by using the concept of
primacy (first reaction to a set of facts). For example, if representing a
corporation ask the prospective juror: In this case an individual has sued
a corporation claiming that the corporation injured them. From that
information do you have any impressions about who is entitled to win this
case? Then follow up the answer. This is far preferable to asking for a
commitment that they will be fair to a corporate defendant. Most jurors will
understand the intent of the question and they will answer that they would
not be able to say who should prevail on that basis alone. If that is the
answer, ask them why they feel that way or what additional facts they
would need to know.
Do not ask the venire if they can follow the law or will accept the jury
instructions given by the court.
Ask questions that determine whether a prospective juror has any lifes
experience in any technical field of endeavor involved in a case (medicine,
law, automotive engineering, operating a radial saw, traffic light sequence
or familiarity with an intersection, etc.). A little knowledge is a very
dangerous thing when brought into the deliberations especially by
someone who is learning about the subject based on the biases or
perceptions of others. This applies to their spouse, children, friends, etc.
as well.
Find out what a prospective jurors hobbies, avocations are and ask them
to expound. This information is not normally available in juror profiles and
it is invaluable. Finding out what people do when they are not required to
earn a living can tell a great deal about their real passions in life. It speaks
to what their interests are and why. Proper follow up can yield a sense
about a number of other traits such as the financial standing, level of
education, degree of discipline, identification with team goals, likes and
dislikes of the person. Failure to have any aspirations, goals or activities
outside of work also says something about a person. Most importantly the
question suggests that the attorney who asked actually wants to get to
14

know them and it will likely require a prospective juror to talk about
themselves to one degree or another.
The same can be said for asking about future career or employment or
educational aspirations.
Begin with some easy basic questions if at all possible and then work into
more difficult ones.
Do not ask prospective jurors if they can be fair or impartial.
It is okay to ask at the conclusion of questions whether there is anything a
prospective juror would like to add that they feel the parties should know
that bears upon their ability to be a fair/impartial decider of the facts. This
gives the prospective juror the opportunity to volunteer things that may
have not been touched upon. It is good to know if a juror is inviting you to
exclude them from the jury pool although many judges do not like open
ended questions of this sort because it allows for jurors to introduce issues
before the rest of the venire. When there is an affirmative response to this
question I often ask for the answer to be followed up outside the presence
of the rest of the venire.
Selecting the Jury How to Decide

IV.

Have a concept of who you are looking to have on the jury and who you
are not before you get to the courtroom.
It rarely helps to question that judgment in the heat of battle.
Understand that the person(s) you like the best are more than likely going
to be challenged by your opponent and make no reaction when that
happens. To the extent possible you do not want the venire, the judge and
most importantly opposing counsel to fully appreciate the qualities that you
are valuing or the type of people that you prefer over others.
Make sure that you are keeping track of your challenges and those of
opposing counsel. Periodically confirm that your tally correlates with the
court. Keep track of those excused for cause and why.
To the extent possible make challenges outside the presence of the
venire. If that is not possible thank any member you strike and do not
show any negative reaction to anyone who was stricken by either side.
Otherwise, it is necessary to follow the advice of an old Fleetwood Mac
song You have to play it the way you feel it. That is case specific.

Opening Statement Outline

1.

This is who I am and the person(s) or entity I represent (introduction).

This answers the first question in the jury's mind, i.e. who are you and who
is your client?

15

2.

This is what you are called upon to decide (issues).

This answers the next question, i.e. why am I here and what is the reason
there remains a dispute or the case has not been resolved outside of
court?

3.

Tell them what you want them to do in light of facts that you are about to
relate to them (conclusion).

This answers the next fundamental question, i.e. what does he/she want me
to do?

4.

This is what you will hear about the issues (tell the story - establish the
theme). Marshall the facts to succinctly establish (without argument) why
your theme or story is inescapably correct or represents reality.

This establishes the reason(s) why the jury should do what you are asking
them to do. In other words, it answers the next question the jury members
will have - why should I do what he/she wants me to do?

5.

Tell them thank you for their service and their attention to the evidence

(Recognize their sacrifice for you and your client.)

6.
V.

Sit down

Objections to Evidence and Preserving the Record on Appeal

1.

If evidence or testimony is received without objection, the record is not

protected, and such evidence or testimony will be treated by a reviewing
court as if it were properly admitted. Thanasouras v. The Police Board of
Chicago, 33 III. App. 3d 1012, 339 N.E.2d 504 (1st Dist. 1975); Little v.
Tuscola Stone Co., 234 Ill. App. 3d 726, 600 N.E.2d 1270 (4th Dist.
1992).

2.

In order to protect the record, a specific objection must be made. A

general objection will not preserve the question for review or appeal
except with respect to relevancy. Insist that opposing counsel's general
objection be made specific so that any error in the offer of the evidence
may be corrected. Lawing v. Chicago Transit Authority, 142 Ill. App. 3d
119, 491 N.E.2d 145 (1st Dist. 1986).
16

3.

4.

a.

A specific objection waives all other grounds of objection not stated

(Cates v. Kinnard, 255 Ill. App. 3d 952, 626 N.E.2d 770 (3d Dist.
1994)) unless the ground is so obvious from the context as to be
apparent. OKeefe v. Lithcolor Press, Inc., 49 III. App. 2d 123, 199
N.E.2d 60 (1st Dist. 1964).

b.

A specific objection to the admission of evidence is unnecessary

where it is clear that the offered proof has no probative value; the
general objection raises the question of relevancy and materiality,
only. Johnson v. Bennett, 395 Ill. 389, 69 N.E.2d 899 (1946).

c.

An objection must be made and not just indicated. Schaffer v.

Veach, 61 III. App. 2d 168, 209 N.E.2d 373 (4th Dist. 1965).

An objection must be timely under the circumstances of the case.

a.

A party waives any objection to the late disclosure of an expert or

opinions as beyond the fair scope of the expert's deposition
testimony where the trial court reserves ruling on an objection, the
party agrees to interview or depose the expert, and thereafter
acquiesces in the expert testifying without procuring a ruling on the
objection. Flynn v. Cohn, 220 III. App. 3d 393, 581 N.E.2d 30 (1st
Dist. 1991); Kosinski v. Inland Steel Co., 192 III. App. 3d 1017, 549
N.E.2d 784 (1st Dist. 1989).

b.

A motion to strike evidence made at the close of the case or at the

close of the opponent's opportunity to present his case is untimely.
Johnson v. Hoover Water Well Serv., 108 Ill. App. 3d 994, 439
N.E.2d 1284 (2d Dist. 1982).

c.

Where the jury fails to comply with instructions regarding the

completion of verdict forms, the objection is untimely when made
only after the jury is dismissed. Eckel v. O'Keefe, 254 Ill. App. 3d
702, 627 N.E.2d 166 (1st Dist. 1993).

Offer of Proof: The trial court's refusal to permit the making of an offer of
proof is error. In re Marriage of Strauss, 183 Ill. App. 3d 424, 539 N.E.2d
808 (2d Dist. 1989).
When an objection by opposing counsel is sustained, the party attempting
to admit the evidence must make an offer of proof in order to
demonstrate, both to the trial and appellate courts, the admissibility of the
testimony which was foreclosed by the sustained objection. People ex rel.
Fahner v. Hedrich, 108 Ill. App. 3d 83, 438 N.E.2d 924 (2d Dist. 1982). An
17

offer of proof is the key to preserving the error of improperly excluding

evidence. Little v. Tuscola Stone Co., 234 Ill. App. 3d 726, 600 N.E.2d
1270 (4th Dist. 1992).
a.

An offer of proof is unnecessary:

(i)

when the nature of the evidence is obvious. In re Marriage

of Passiales, 144 Ill. App. 3d 629, 494 N.E.2d 541 (1st Dist.
1986).

(ii)

where questions to which objections were sustained would

not have produced relevant testimony. In re Marriage of
Strauss, 183 III. App. 3d 424, 539 N.E.2d 808 (2d Dist.
1989).

b.

An attorney has a right to insist upon making an offer of proof. In

re Marriage of Strauss, 183 Ill. App. 3d 424, 539 N.E.2d 808 (2d
Dist. 1989).

c.

An offer of proof is proper only after an objection is sustained.

Harman v. Indiana Grave Drainage Dist., 217 Ill. App. 502 (1920).

d.

When a material part of an offer of proof is inadmissible, an

objection to the entire offer may be sustained. Romine v. City of
Watseka, 341 Ill. App. 370, 91 N.E.2d 76 (2d Dist. 1950).

e.

An offer of proof as to documentary evidence must include the

document itself. O'Brien v. Walker, 49 111. App. 3d 940, 364
N.E.2d 533 (1st Dist. 1977). For example, a party may waive any
objection to the disclosure of opinions at trial as beyond the fair
scope of the expert's discovery deposition where the deposition is
not included in the record. Chiricosta v. Winthrop-Breon, 263 III.
App. 3d 132, 635 N.E.2d 1019 (1st Dist. 1994).

f.

Form of offer of proof required to be used: A formal offer of proof is

defined as interrogation of the witness on the subject of the offered
evidence outside the presence of the jury. Simon v. Plotkin, 50 III.
App. 3d 603, 365 N.E.2d 1022 (1st Dist. 1977). An informal offer of
proof is defined as "counsel's statement on the record as to what
the witness would have been asked and what the witness' answers
would have been. Hession v. Liberty Asphalt Products, Inc., 93 III.
App, 2d 65, 235 N.E.2d 17 (2d Dist. 1968).
(i)

Most cases state that an informal offer of proof may suffice

under certain circumstances:
18

where opposing counsel was likely to make repeated

objections. Slezak v. Girzadas, 167 Ill. App. 3d 1045, 522
N.E.2d 132 (1st Dist. 1988).
where it is obvious that the witness is competent to testify to
a fact and what his testimony will be, a brief statement by
counsel may suffice. Scaggs v. Horton, 85 III. App. 3d 541,
411 N.E.2d 870 (5th Dist. 1985).
where there is no statement by the court, opposing counsel,
or any other witness disputing remarks of counsel. Wright v.
Stokes, 167 III. App. 3d 887, 522 N.E.2d 308 (5th Dist.
1988).

5.

(ii)

Some cases hold that only a formal offer of proof is

sufficient to protect the record. Austin Liquor Mart, Inc. v.
Department of Revenue, 18 Ill. App. 3d 894, 310 N.E.2d
719 (1st Dist. 1974).

(iii)

Some cases state that a formal offer of proof is preferred.

Miller v. Chicago Transit Authority, 78 III. App. 2d 375, 223
N.E.2d 323 (1st Dist. 1966).

(iv)

An informal offer of proof must be specific and not merely

summarize the witness' testimony in a conclusory manner or
the error will not be preserved. Mulhern v. Talk of the Town,
138 Ill. App. 3d 829, 486 N.E.2d 383 (2d Dist. 1985).

g.

It is not necessary to make an offer of proof on cross-examination.

People v. Kailas, 72 111. App. 3d 445, 389 N.E.2d 1382 (1st Dist.
1979).

h.

An offer of proof should be made if the court denies a request to

reopen the case. Gunderson v. First National Bank, 296 III. App.
111, 16 N.E.2d 306 (1938).

In some instances, it is necessary to make a motion to strike in order to

preserve the record.
a.

A motion to strike must be made when a proper question is posed

by opposing counsel but the answer given by the witness is
objectionable. Schoolfield v. Witkowski, 54 Ill. App. 2d 111, 203
N.E.2d 460 (1st Dist. 1964) (ambiguous answer); McGraw v.
19

Gavin, 27 Ill. App. 2d 62, 169 N.E.2d 171 (2d Dist. 1960)
(speculative answer).
b.

A motion to strike must be made when a witness answers a

question before there is an opportunity to object to it. Darling v.
Charleston Community Memorial Hospital, 50 Ill. App. 2d 253, 200
N.E.2d 149 (4th Dist. 1964), aff'd, 33 Ill. 2d 326, 211 N.E.2d 253
(1965).

c.

Where evidence is admitted subject to later connection and proof

of that evidence is presented, the party that opposes the evidence
must both object to lack of proof at the time the evidence is
introduced and later renew the objection by making a timely motion
to strike the evidence, Gillespie v. Chrysler Motors Corp., 135 III.
2d 363, 553 N.E.2d 291 (1990).

d.

If an objection is overruled, a motion to strike the admitted

testimony need not also be made to preserve the record. Pellico v.
E.L. Ramm Co., 68 III. App. 2d 322, 216 N.E.2d 258 (1st Dist.
1966).

6.

A motion for a mistrial should be made even after a favorable ruling on an

objection is obtained if the question posed is of such a prejudicial nature
that the trial court's ruling will not obviate the error. Schoolfield v.
Witkowski, 54 III. App. 2d 111, 203 N.E.2d 460 (1st Dist. 1964); Gaffner v.
Meier, 336 III. App. 44, 82 N.E.2d 818 (4th Dist, 1948).

7.

An objection made by one party does not inure to the benefit of another
unless the latter party joins in the objection. Bunch v. Rose, 10 Ill. App. 3d
198, 293 N.E.2d 8 (4th Dist. 1973); Nelson v. Union Wire Rope Corp., 39
III. App. 2d 73, 187 N.E.2d 425 (1st Dist. 1963), rev'd on other grounds, 31
Ill. 2d 69, 199 N.E.2d 769 (1964). While ordinarily each party must make
his own objection to preserve a point for appeal, where a nonasserting
party is a codefendant with a unified interest in a contested evidentiary
issue, the trial court is not required to hear an objection from each party.
Country Cas. Ins. Co. v. Wilson, 144 Ill. App. 3d 28, 494 N.E.2d 152 (3d
Dist. 1986).

8.

In certain instances the trial lawyer may waive the right to make a
successful objection.
a.

A party may waive the right to object to evidence if he himself

previously introduced similar evidence. Hopwood, v, Thomas Hoist
Co., 71 Ill. App. 2d 434, 219 N.E.2d 76 (1st Dist. 1966).
20

b.

A party may waive the right to object to evidence if he or she

objects and then later introduces evidence on the same point.
Hedge v. Midwest Contractors Equipment Co., 53 Ill. App. 2d 365,
202 N.E.2d 869 (1st Dist. 1964).

c.

A party may waive the right to object to evidence if he or she

previously failed to object to similar evidence. Sullard, v. Barnes,
112 III. App. 3d 384, 445 N.E.2d 485 (1983), aff'd, 102 Ill. 2d 505,
468 N.E.2d 1228 (1984).

d.

If opposing counsel introduces evidence for a limited purpose, the

trial attorney must ask for an instruction confining it to that
purpose; otherwise, the evidence is admissible for any purpose
and the objection is waived. Eizerman v. Behn, 9 III. App. 2d 263,
132 N.E.2d 788 (1st Dist. 1956).

e.

It may not always be necessary to repeat an objection to evidence

or testimony if an earlier objection as to similar evidence or
testimony has been overruled. Fullerton v. Robson, 61 Ill. App. 3d
93, 377 N.E.2d 1044 (1st Dist. 1978).

9.

If there is an objection on the ground of a variance between the pleadings

and proofs, it must be made in the trial court. Nikolooulos v. Balourdas,
245 Ill. App, 3d 71, 614 N.E.2d 412 (1st Dist. 1993).

10.

Plain Error Doctrine:

a.

As a general rule, the court is not obligated to exclude evidence

unless there is an objection. However, under the doctrine of plain
error,
"If a litigant or his representative engages in conduct so
prejudicial and reprehensible that the other party cannot
receive a fair trial and the judicial process stand without
deterioration, this court will review and consider assignments
of error even though no objection was made and no ruling
made or preserved in the trial court."
Taylor v. Village Commons Plaza, Inc., 164 III. App. 3d 460, 517
N.E.2d 1164 (2d Dist. 1987) citing Muscarello v. Peterson, 20 Ill. 2d
548, 170 N.E.2d 564 (1960).

b.

If the prejudicial error was so egregious that it deprived the party

of a fair trial and substantially impaired the integrity of the judicial
process, only then will the court review the error in this "rare" and
21

"limited" circumstance. Allison v. Stalter, 251 Ill. App. 3d 127, 621

N.E.2d 977 (4th Dist. 1993).
VI.

Jury Instruction Conference

1.

Instructions
a.

In order to preserve the point for review, the record must show that
a 'specific objection was made to a given instruction or that a
tendered instruction was rejected. Aguinaga v. City of Chicago,
243 III. App. 3d 552, 611 N.E.2d 1296 (1st Dist, 1993). A party's
general objection will not suffice to preserve the issue for the
reviewing court's consideration. Gonzalez v. Prestress Engineering
Corp., 194 Ill. App. 3d 819, 551 N.E.2d 793 (4th Dist. 1990).

b.

The correct legal grounds of a specific objection must be stated; the

reviewing court will only consider whether the instruction was
properly given in light of the stated objection. Soderquist v. St.
Charles Mall Associates, Ltd, 177 III. App. 3d 207, 532 N.E.2d 903
(2d Dist. 1988).

c.

A party cannot complain that there was a failure to give an

instruction on a particular point unless the record shows he or she
tendered an instruction on that point. Ono v. Chicago Park District,
235 Ill. App. 3d. 383, 601 N.E.2d 1172 (1st Dist. 1992).

d.

Any objections to a tendered instruction must be specifically

renewed in a post-trial motion to avoid waiver. Grothen v. Marshall
Field & Co., 253 Ill. App. 3d 122, 625 N.E.2d 343 (1st Dist. 1993).

e.

(i)

Merely listing the numbers of the challenged instructions

does not satisfy the specificity requirement. Matter of Estate
of Mooney, 117 III. App. 3d 993, 453 N.E.2d 1158 (3d Dist.
1983).

(ii)

Simply including argument in a post-trial motion where no

objection was made at trial is inappropriate. Burnham v.
Lewis, 217 III. App. 3d 752, 577 N.E.2d 922 (5th Dist. 1991).

A court reporter should be present to provide the reviewing court

with a transcript. Chicago Housing Authority v. Rose, 203 Ill. App.
3d 208, 560 N.E.2d 1131 (1st Dist, 1990).

22

f.

2.

3.

Under the Federal Rules of Civil Procedure, jury instructions must

be objected to before the jury retires to consider the verdict in
order to preserve the issue for appeal. Fed. R. Civ. P. 51.

Special Interrogatories: If special interrogatories are submitted, the

record must show that each, standing alone, is complete in itself and that
the answer to each would nullify an inconsistent general verdict. Hollis v.
Terminal R.R. Association of St. Louis, 72 III. App. 2d 13, 218 N.E.2d 231
(5th Dist. 1966).
a.

The record must show a specific objection was made to a special

interrogatory when it was submitted. Saldana v. Wirtz Carthage
Co., 74 Ill, 2d 379, 385 N.E.2d 664 (1978).

b.

Failure to submit special interrogatories results in waiver of the

issue on appeal. Qovle v. White Metal Rolling and Stamping Corp.,
249 Ill. App. 3d 370, 618 N.E.2d 909 (1st Dist. 1993). Once the
special interrogatory is submitted, the party must also object if the
court denies the request in order to preserve the issue. Soderquist
v. St,_ Charles Mall Associates, Ltd., 177 Ill. App. 3d 207, 532
N.E.2d 903 (2d Dist. 1988).

Verdict form: In drawing up verdict forms, make sure that they cover
every possible finding the jury may make under the evidence from the
point of view of each plaintiff and each defendant. Eggimann v. Wise, 41
Ill. App. 2d 471, 191 N.E.2d 425 (2d Dist. 1963).
a.

If there are multiple plaintiffs or defendants, individual verdict

forms and judgments should be used. The court does not have a
duty to submit separate verdict forms but, rather, a party must
make a motion for the court to direct the jury to find separate
verdicts, and the party who fails to do so waives its right to object
on appeal regarding such an omission. Schumacher v,
Continental Air Transport Co., Inc., 204 Ill. App. 3d 432, 562
N.E.2d 300 (1st Dist. 1990).

b.

Failure to tender the proper verdict form results in a waiver of the

issue on appeal. Wheeler v. Sunbelt Tool Co.. Inc., 181 III. App.
3d 1088, 537 N.E.2d 1332 (4th Dist. 1989) (plaintiff waived claim
that verdict did not differentiate between economic and
noneconomic loss).

23

VII.

CLOSING ARGUMENT
1.

The record must show an objection to any alleged error in the closing
argument. Simmons v. University of Chicago Hospitals and Clinics, 247 Ill.
App. 3d 177, 617 N.E.2d 278 (1st Dist. 1993), aff'd. 162 Ill. 2d 1, 642
N.E.2d 107 (1994).

2.

The closing argument must be transcribed and made part of the report of
proceedings. An affidavit of counsel as to what was said in closing
argument is not sufficient. Hoffman v. Wilson, 60 III. App. 2d 396, 208
N.E.2d 607 (2d Dist. 1965).

3.

It is improper to inform the jury that a defendant is or is not insured against

liability on a judgment that might be entered against him. Lenz v. Julian,
276 Ill. App. 3d 66, 657 N.E.2d 712 (2d Dist. 1995).

4.

It is improper for counsel to vouch for the character or veracity of a

witness. Kerns v. Lenox Machine Company, Inc., 74 Ill. App. 3d 194, 392
N.E.2d 688 (3d Dist. 1979); Koonce v. Pacilio, 307 Ill. App 3d 449, 718
N.E.2d 628 (1st Dist. 1999).

5.

Generally speaking it is error for counsel to request that the jury place
themselves in the shoes of a party. Drews v. Gobel Freight Lines, Inc.,
197 Ill. App. 3d 1049, 557 N.E.2d 303 (1st Dist. 1990), affd. 144 Ill.2d 84,
578 N.E.2d 970 (1991).

6.

Avoid references to opposing counsel. Cecil v. Gibson, 37 Ill. App. 3d 710,

346 N.E.2d 448 (3d Dist. 1976).

7.

Generally, it is improper closing argument to suggest a per diem or

mathematical formula for calculating the damage award. Caley v.
Manicke, 24 Ill.2d 390, 182 N.E.2d 206 (1962); Ramirez v. City of
Chicago, 318 Ill. App. 3d 18, 740 N.E.2d 1190 (1st Dist. 2000).

8.

Argument can exceed the bounds of propriety and be construed as

reversible error if it improperly appeals to the passion or prejudices of the
jury. For example, it was reversible error to suggest that the jury should
act as a consumer advocate so that the lawnmower industry would
improve safety of their products and spare others from similar injuries in
the future. Hubbard v. McDonough Power Equipment, Inc., 83 Ill. App.3d
272, 404 N.E2d 311 (5th Dist. 1980). It was improper for defense counsel
to argue that a verdict against his client, a physician, would affect her
professionally and personally. Kass v. Resurrection Medical Center, 316
Ill. App. 3d 1108, 738 N.E.2d 158 (1st Dist. 2000).
24

VIII.

THE JURY
1.

2.

Waiver:
a.

Insist upon being present for any communications between judge

and jury; otherwise, any objections to the court's communication
may be waived, Thompson v. City of Chicago,, 128 Ill. App. 3d 59,
470 N.E.2d 47 (1st Dist. 1984), rev'd on other grounds, 108 Ill. 2d
429, 484 N.E.2d 1086 (1985).

b.

Absence of trial counsel during jury deliberations waives any errors

arising by the judge's response to the jury's questions unless the
judge's conduct amounts to an affront of the judicial process.
Allison v. Stalter, 251 III. App. 3d 127, 621 N.E.2d 977 (4th Dist.
1993).

c.

A party waives any possible error in the removal of a juror by failing

to move for a mistrial when the juror was removed. Veach v.
Cross, 178 III, App. 3d 102, 532 N.E.2d 1069 (4th Dist, 1988).

Polling The Jury:

a.

The right to poll the jury should not be waived; avoid sealed
verdicts when possible. Gille v. Winnebago County Housing
Authority, 104 III. App. 2d 470, 244 N.E.2d 636 (2d Dist. 1969),
aff'd, 44 Ill. 2d 419, 255 N.E.2d 904 (1970); Sangster v. Van Heche,
67 Ill. 2d 96, 364 N.E.2d 79 (1977).
When polling the jury, the appropriate question to be posed to each
member of the jury, individually, is "Was this and is this now your
verdict?".

c.

During the polling of the jury, if a juror gives an answer which

seems to indicate that he or she is uncertain, insist that the judge
inquire further. People v. Bennett, 154 Ill. App. 3d 469, 507 N.E.2d
95 (1st Dist. 1987) (where the trial court assumed concurrence in
the verdict from the mere fact that the juror signed the verdict).

d.

Insist that the trial court continue the jury poll and direct the jury to
retire for further deliberations or discharge it, if necessary, where it
discovers a juror is equivocal about the verdict in order to avoid
isolating and possibly coercing the juror. Bianchi v. Mikhail, 266 Ill.
App. 3d 767, 640 N.E.2d 1370 (1st Dist. 1994).

25

3.

A party is entitled to a mistrial where one juror is unable to continue and

the party has not stipulated on the record to proceed with less than 12
jurors. Hartgraves v. Don Cartage Co., 63 III. 2d 425, 348 N.E.2d 457
(1976).

December 2, 2006

26

Trial Preparation Checklist

Glen E. Amundsen
SmithAmundsen LLC
150 N. Michigan Ave.
Suite 3300
Chicago, IL. 60601
Voice: (312) 894-3220
Fax: (312) 894-3210
E-mail: gamundsen@salawus.com
Website: www.salawus.com

*This presumes that proper investigation of the facts and discovery has been conducted
before trial and that facts have been marshaled by trial counsel (abstracts of
depositions, etc.).
I.

Review the Current Pleadings confirm what factual issues are in dispute.

II.

Draft the Jury Instructions know the applicable law regarding the issues raised
by the pleadings.

III.

Decide Upon the Theme or Theory of your Clients Case if you cannot write it
out on your business card it is too complex. (This should be something that you
have been contemplating and evolving since first contact with the dispute.)

IV.

Sift the Factual Evidence and contrast to the contested issues determine what
evidence (testimony or exhibits) will be required to meet the burden of proof on
the issues that are germane to your theme or theory.

V.

Issue Trial Subpoenas be sure that relevant testimony or exhibits can be

produced at trial.

VI.

Issue S. Ct. Rule 237 Request to Produce at Trial be sure to use Section 21102 to call for production of adverse witnesses under control of the opposing
party.

VII.

Consider & Anticipate the Evidentiary Issues that Will Arise

27

VIII.

Draft motions in limine;

Draft trial brief for the court explaining the evidentiary issues and proper
ruling;
Secure a copy of the relevant case authority supporting admission or
exclusion of the evidence in dispute;
Be prepared to lay the requisite foundation and/or argue for the admission
or exclusion of every critical exhibit or segment of testimony (assume that
you will get an objection).

Prepare Exhibits for Maximum Persuasive Impact

Prepare Exhibit List (see materials for exemplar);

Determine if you will use trial presentation software, Power Point or other
graphics for visual persuasion purposes;
Determine if enlargements, treatments, or other modification of the exhibit
is required to improve communication/persuasive effect;
Determine how the exhibit will be published to the jury;
Make a copy of all exhibits for the court and opposing counsel. Provide
them at the outset of the trial or as required by the case management
order.

IX.

Prepare Direct and Cross Exam of Expected Witnesses make sure that keep
theme and required proof in mind. Less is better.

X.

Prepare Client and Key Witnesses for Trial

XI.

Provide them their deposition testimony;

Acquaint them with key documentary evidence anticipating likely direct
and/or cross examination;
Acquaint witness with the required foundation and other requirements to
admit evidence through their testimony;
Acquaint witnesses with the procedure, dress and behavior expected in
the courtroom;
Review scene of key events or actual visit.

Prepare Other Written Submissions

Motions for directed verdict;

Proposed voir dire questions;
Statement of the case.
28

XII.

Prepare Trial Notebook (see materials for exemplar table of contents)

XIII.

Prepare Opening Statement

XIV.

Prepare Closing Argument

Exhibit A
29

TRIAL NOTEBOOK INDEX

Smith, Jane v. Sallys Bar and Grill
No. 07 L 0000
Our File No. 0000000-GEA
1)

Contact List
Name, address, phone number of the following:
(a)
(b)
(c)
(d)
(e)
(f)

2)

your client;
opposing counsel;
trial judge;
insurance company personnel, if applicable;
all witnesses;
your private investigator

Pleadings
a.
b.
c.
d.
e.

Current Complaint
Current Answer & Affirmative Defense(s)
Third Party Complaint
Counterclaims or Third Party Complaints
Answer to Counterclaim or Third Party Complaint(s)

3)

Table of Motions In Limine

4)

Deposition Abstracts (in alphabetical order)

5)

Exhibits in numerical order

6)

Trial Subpoenas

7)

Returns of Service on Trial Subpoenas

Exhibit B
30

Plaintiffs Exhibits

No.

Description

Obj.

Exhibit C
31

In

Out

Defendants Exhibits

No.

Description

Obj.

Exhibit D
32

In

Out