Compendium of Litigation Experience A LITIGATOR’S HOW-TO GUIDE TO LITIGATION

FROM THE FORWARD:  As a litigator journeys towards the end of his or her in-court career, when more time is spent reminiscing about glorious courtroom battles than engaging in them, developing the next generation of courtroom litigators is of paramount importance. Yes, the “youngs” need to learn their lessons the same way we did—in celebrated battle, suffering the scars of defeat and occasional humiliation, while winning prestige on the backs of the triumphants. But rather than let them repeat our simplest of mistakes, let us set at least a few of them—the chosen few—on the path to outdo the “olds.”

Let us give them the secrets to early success as a litigator. We have all seen young trial counsel make the same simple mistakes over and over again, just like we did. And we have likely given the same advice in feedback sessions over and over again on every aspect of trial litigation. Your advice may be different, but what follows is my “script,” the PrimeCOLE method, repeated over and over to countless bright-eyed “youngs,” with a few “war stories” thrown in to drive home the points.

CHAPTER 0  — Readme File

A little introduction to what this is all about …

        LINK:  Ch 0 COLE ReadMe File

CHAPTER 1 — A Litigator’s Philosophy

Litigation, and being a quality litigator, is not about counting up wins and conveniently disappearing losses from the scorecard. Though over time a quality litigator will likely see more “wins” than “losses,” whatever those words mean, wins and losses are not an appropriate measure of your worth as a litigator. Here we redefine what #winning and #losing are all about and focus on the important thing–the 5P’s.

         LINK: Ch 1 Litigator’s Philosophy

                   Spotify Podcasts:  Chapter/Episode 1                  Season Two: Philosophy & Preparing a Proof Analysis 

CHAPTER 2  — Preparing Witnesses

Preparing a witness to testify at trial does not mean scripting out questions and answers and rehearsing them over and over. A properly prepared witness knows what to do and where to go when called into the court to testify and has some level of comfort beyond mere panic. Here is how you to get them to that point.

Season Two of the PowerHour Podcast talked about Victim Interviewing and preparing for the Preliminary Hearing and Motions Hearings. No equivalent Book chapter on this, but a good place to hang the podcast.  BONUS MATERIAL: Linked to a template Proof Analysis that you can use to do an initial review of any criminal case and set up for success + a completed version that explains how to use the Template most effectively. Good stuff … and FREE!!!

        LINK:  Ch 2 Preparing Witnesses          

        LINK BONUS MATERIAL: COLE Template Proof Analysis and The Perfect Proof Explainer & Example

                Spotify Podcast:  Chapter/Episode 2                        Spotify Podcast Season Two: Victim Interviews/Pre-Trial Hearings

CHAPTER 3 — Voir Dire

Voir dire … not a fan. But if we have to do it, we should do it in a way that does not tank our credibility with the members. Voir dire should not be a competition to see who can ask the most questions, or the “cutest” ones. You are not going to “win” a case in voir dire so relax and let the PrimeCOLE Hippocratic Oath guide your efforts.

         LINK: Ch 3 Voir Dire

                 Spotify Podcast:  Chapter/Episode 3

CHAPTER 3A  — Voir Dire Interlude

Now that you have efficiently exercised your obligations under the PrimeCOLE Voir Dire Hippocratic Oath, and done no harm to your credibility, you get a second chance to do just that—individual voir dire.

        LINK:  Ch 3A Interlude Individual Voir Dire

CHAPTER 4 — Opening Statement

Opening statement is crucial. Not only should it foreshadow the facts to come, but it foreshadows the trial competence of counsel presenting it. A little show-and-tell, or tell-and-show, on how to do it best.

         LINK: Ch 4 Opening Statement

                 APPENDIX:  App B — Gov Motion to Pre-Admit

                 Spotify Podcast:  Chapter/Episode 4

CHAPTER 5  — Direct “Examination”

Direct examination, really direct “conversation,” is not about crafting a questions-and-answers script that counsel and the witness practice over again in anticipation of a perfect presentation at trial. Unsurprisingly, that perfect plan never materializes. Direct “conversation” is about your role in guiding the witness through their testimony, a journey that may not be, and need not be, a straight line. Direct “conversation” emphasizes your role in the presentation, embrace it.

        LINK:  Ch 5 Direct Examination

                Spotify Podcast:  Chapter/Episode 5

CHAPTER 5A — Interlude Act II – Preparing Witnesses

Remember back in Chapter 2 – Preparing Witnesses I left out Act II (the actual-practicing-testimony bit) and promised that another article would talk about how to structure that part of the pretrial interview? Well I did. And guess what? .., 

         LINK: Ch 5A Interlude Act II Witness Prep

CHAPTER 6  — Objection Credibility

Remember this from A Few Good Men –  Jo: “Your Honor, we re-new our objection to Commander Stone’s testimony. …” Judge: “The objection’s overruled, counsel.” Jo: “Sir, the defense STRENUOUSLY objects ….” Judge: “Noted.” There may be a better way to object, even strenuously. Though this is an old article, written when PrimeCOLE was merely a young pup, the guidance remains true now that he is an old dog.

        LINK:  Ch 6 Objection Credibility

CHAPTER 7 — The Objection Challenge

Shall We Play a Game?

         LINK: Ch 7 Objection Game

                Spotify Podcast:  Chapter 6-7/Episode 6 – The Objection Game

                APPENDIX: The Objection Challenge Scenario —  THE OBJECTION CHALLENGE Scoresheet — xAppendix A Objection Game Key  

CHAPTER 8  — CASE STUDIES: Cross Examination I

The first of a number of chapters demonstrating how the theories of litigation can expertly be put into “battlefield” practice … we start with a review of the key cross examination from United States v. Lt Col James Wilkerson—that of Beth Wilkerson, the Accused’s spouse.

        LINK:  Ch 8 CS1 Cross Examination

           Spotify:  Cross Examination

CHAPTER 9 — CASE STUDIES: Cross Examination II

Part II continues the public review of a lengthy cross-examination in a real case, examines similar themes developed in Part I, and adds some additional practical tips on how to actually prepare a cross-examination, from start to finish.

         LINK: Ch 9 CS2 Cross Examination

CHAPTER 10  — Closing Argument

It’s showtime! Unless you are eight years old, Ringling Bros and Barnum & Bailey Circus is not THE GREATEST SHOW ON EARTH®. No, when you stand up to give your closing argument in your hotly contested trial, you better be THE GREATEST SHOW ON EARTH®. Not the clown, not the strongman, not one of the trained animals, not the trapeze act … though those all sound like awesome jobs. But the ringmaster … and maybe a bit of a juggler.

        LINK:  Ch 10 Closing Argument

         Spotify Podcast:  Closing Argument

CHAPTER 10A — Interlude: The Perfect Closing

Remember when I said that I had never given a “perfect” closing argument? That was not exactly true. This one time, long ago, when the stars aligned and inspiration overtook commonsense, I gave the most perfect f#$*!@g  closing argument of all time.

         LINK: Ch 10A Interlude The Perfect Closing Argument

CHAPTER 11  — The COLE Train Interview Series

One of the best ways to become a good litigator (besides devouring this Compendium) is to learn from good litigators. In 2015, Joint Base Charleston was able to corral one of the Air Force’s top litigators for a wide-ranging, question-and-answer training session. Here is the wisdom of Lt Col Matt Neil (now the Ft Meade Staff Judge Advocate, after attending Air Command and Staff College in residence). If you do not know Lt Col Neil, read his answers at hyperspeed and you’ll get the idea (he’s a fast talker).

        LINK:  Ch 11 COLE Train Interview Lt Col Neil

CHAPTER 12 — CASE STUDIES: Sentencing Argument

Sentencing is about maintaining the momentum of findings and then, for the prosecution, continuing the strategy (the theme and theory) that got you to that point. And again, public review of an actual case—sentencing on a murder conviction.

         LINK: Ch 12 CS Sentencing

          Spotify Podcast:  Sentencing

CHAPTER 13  — Civility

“Can’t we all just get along?” No? Well then at least don’t be a jackass about it. Credibility and civility are not mutually exclusive qualities. In fact, they are co-dependent—you cannot be credible if you are not civil. In the rough-and-tumble world of trial litigation, it can feel like remaining civil is an impossible goal, but it is not. Here are some thoughts, some of them random, on how you can exercise civility even in the face of harsh personal attacks.

        LINK:  Ch 13 Civility

         Spotify Podcast:  Civility