2. A Solid Knowledge of the Law of Evidence.
You have to know the facts. But mere knowledge of facts doesn’t do your client much good. You have to know how to get those facts before a factfinder. In other words, you need to understand the law of evidence.
The relative paucity of trials makes it difficult to keep current on the law of evidence. And simply keeping current on case law doesn’t do you much good – there are relatively few civil cases that discuss evidence issues. (Criminal law is another matter.)
Nevertheless, great trial lawyers anticipate evidence issues and know how they are going to get facts and documents into the record. Great trial lawyers critically examine the potential proof of their opponents and look for ways to encourage the trial judge to force opponents to meet the evidentiary requirements necessary to get potentially damaging proof before the factfinder.
That being said, great trial lawyers stipulate matters that are not reasonably in dispute and do not force their adversaries to jump through unnecessary hoops to prove what can be readily proven with the expenditure of time and money. Of course, great trial lawyers may not accommodate another lawyer in this regard if the lawyer has not extended a similar courtesy or has not made the request in a timely manner.
A great trial lawyer thinks about motions in limine and makes judgment calls about which issues to raise before trial and which to raise at trial.
Great trial lawyers use objections with care at trial. They understand how to make a record to persuade the judge to rule in their favor and also how to create a record for an appeal.
Great trial lawyers understand the appellate standard of review of evidentiary issues and act accordingly when advising their clients on the appellate process and when preparing issues and briefs for appellate review.