New episode of our video podcast, Speaking of Litigation: Behind every successful trial is a team that knows how to work under pressure—but what sets trial teams apart?
In this episode, Epstein Becker Green attorneys Shruti Panchavati, Melissa Jampol, and Diana Costantino Gomprecht share their trial team experiences, breaking down how trial team dynamics can directly affect courtroom outcomes.
Tune in as the panel uncovers signs of dysfunction that can derail momentum and explores how jury, judge, and arbitrator perceptions hinge on a team’s professionalism, chemistry, and preparation.
With practical insights, real-world anecdotes, and nods to courtroom cinema classics, this episode offers a compelling glimpse into what it takes to handle complex litigation with precision and skill. Listen now to gain a deeper understanding of the factors that drive success in the courtroom.
Podcast: Amazon Music, Apple Podcasts, Audacy, Audible, Deezer, Goodpods, iHeartRadio, Overcast, Pandora, PlayerFM, Pocket Casts, Spotify, YouTube, YouTube Music
Transcript
[00:00:00] Shruti Panchavati: Today on Speaking of Litigation, we're discussing three very critical and interesting topics. First, criteria that define great trial teams. Second, signs of a dysfunctional trial team. And third, jury perception of trial teams and why it really matters. I'm your host today, Shruti Panchavati, an attorney in Epstein Becker and Green's litigation practice here in the New York office.
[00:00:27] Shruti Panchavati: Many of you have probably heard that most cases don't go to trial, and that's very true. They're typically settled out of court or, as often happens, while the case is often pending. However, when cases do reach trial, the trial team that you have beside you and representing you could mean all the difference.
[00:00:43] Shruti Panchavati: Joining our discussion today is Melissa Jampol. Melissa Jampol is a partner in the litigation and health care groups. Prior to joining EBG, Melissa was a federal and state prosecutor. Hi, Melissa. Thanks so much for joining us today.
[00:00:59] Melissa Jampol:Thanks for having me, Shruti.
Shruti Panchavati: And next, we also have Diana Costantino Gomprecht. Diana is a partner in the litigation group. She's been an attorney at EBG her entire career with a focus on employment litigations and arbitrations. Hi, Diana.
[00:03:22] Diana Costantino Gomprecht: Hey, Shruti. Thanks for having me.
[00:01:20] Shruti Panchavati: Of course. So glad that both of you are able to join us. So I'd like to first just jump in here with our first discussion area, criteria that define great trial teams. Melissa, I'd like to start with you. What constitutes a trial team and what factors do you normally consider when building out your trial teams?
[00:01:27] Melissa Jampol: Sure, so thanks, Shruti. The first thing that I think about is who we're going to have actually in the courtroom and who's going to be outside of the courtroom. So I think it's really important to make sure that you have good, solid support back in the office for research questions that come up, for helping you schedule your witnesses, for making sure that your evidence is organized.
[00:01:52] Melissa Jampol: And then it's really important to think about who you're going to have in your courtroom. So, my bottom line is, who do I want to be up late at night and working with? Who do I want to make sure that I'm not going to kill in the middle of the weekend? And you know, looking at the overall synergies of different strategies, who's going to be really good for the opening?
[00:02:12] Melissa Jampol: Who's going to be really good for cross examining that difficult witness? And who really is going to be passionate about the matter that's under trial?
[00:02:23] Shruti Panchavati: That's really interesting. You mentioned the team that you have with you at court versus outside. What's the size of that group and does it typically matter?
[00:02:33] Melissa Jampol: So I think it just matters with what's going on in the courtroom. If you're having a case with a lot of novel issues, you're going to want to make sure that you have people with appellate background back in the office to be able to help you strategize how this is going to play out on appeal. And sometimes you're really just trying the case because you're trying it for appeal, and you want to make sure that you're preserving your record the best you can, and getting the background and the folks who are real appellate advocates to be able to help you strategize.
[00:03:04] Shruti Panchavati: And Diana, same question for you, and I know that you typically deal with arbitrators and judges, do you typically consider the size of the trial team you have, the people that you're sort of bringing with you day to day in the courthouse, or how the gender makeup relates to a subject matter?
[00:03:22] Diana Costantino Gomprecht: It's a great question, Shruti. I agree with Melissa. You want to be with people who you enjoy and respect as litigators because you're spending such an exorbitant amount of time with these people preparing for a trial. The size really depends on the case. You know, if we're handling a single plaintiff case, we may not bring in five attorneys on our side to combat that case, especially if there's a solo practitioner on the other side. Optics matter.
[00:03:47] Diana Costantino Gomprecht: So it really depends on the case itself. The folks back at the office who are on standby are critical, agree with Melissa on that as well. As we're moving along, we are always thinking about the next step. That's what litigators do. We're anticipating where could this go in a direction that we're not anticipating at this moment, but we'll need to deal with down the road.
[00:04:11] Diana Costantino Gomprecht: And so the folks back in the office are important to deal with the unexpected. You may think you have a great objection to keep certain evidence out, or a witness out, and you fail. And now all of a sudden you're dealing with something that's pretty heavy, pretty quickly. And we actually have, in order to make this a little more interesting for our viewers, we actually have a movie clip where that happens in a movie, one of my favorites, called My Cousin Vinnie.
[00:04:38] Diana Costantino Gomprecht: If you haven't seen it, you should, from 1992. And in this scene, we have Joe Pesci, who plays Vinny Gambini, making an argument before the judge in the case, and he's arguing to keep out testimony of an expert witness that the prosecutor has suddenly dropped on him, right? It's a surprise witness.
[00:04:59] My Cousin Vinnie Clip: I object to this witness being called at this time. We've been given no prior notice he'd testify, no discovery of any tests he's conducted or reports he's prepared, and as the court is aware, the defense is entitled to advance notice of any witness who would testify, particularly to those who will give scientific evidence, so that we could properly prepare for cross examination, as well as to give the defense an opportunity to have the witness's reports reviewed by a defense expert who might then be in a position to contradict the veracity of his conclusions.
[00:05:30] Mr. Gambini?
[00:05:30] Yes, sir?
[00:05:31] That is a lucid, intelligent, well thought out objection.
[00:05:36] Thank you, your Honor.
[00:05:38] Overruled.
[00:05:37] Diana Costantino Gomprecht: So, as you can see in this scene, Vinnie Gambini makes a great argument and, you know, the judge even seems shocked by it because he's had some struggles along the way in this movie. By the way, just a side note, in case the judge looks familiar, that is Herman Munster from the Munsters in one of his final movies.
[00:05:57] Diana Costantino Gomprecht: And in the background you'll see the accused who is in fact Ralph Macchio. And so if you watch Cobra Kai currently, that's him. If you're back from my day, he's the Karate Kid. Great cast. So, Melissa, what would you do in this situation if that's you in court? You've got this great argument, and the judge says, “overruled.”
[00:06:18] Melissa Jampol: I mean, that happens all the time.
[laughter]
[00:06:19] Melissa Jampol: I don't really view this as a unique situation. You have to go into trial with your decision trees on what you're going to win, what you're going to lose, and what you're going to do if you lose your most important argument. And so the last case I tried a year ago, the judge took all of our motions in limine and put them all in a garbage can and said, I'm not deciding any of them before we start the trial, make your objections as we go through. And you have to roll with the punches.
[00:06:54] Melissa Jampol: Our argument was if certain evidence is going to get admitted, you can't unring the bell, and it's going to be a problem, but you have to be prepared the second you set foot in the courtroom that everything's going to go wrong and you have to always be thinking what's the worst case scenario.
[00:07:11] Melissa Jampol: So, the best offense is a good defense at times, and you have to be ready for the unexpected. Which is why, back to the theme, Shruti, that you were talking about before, it's really important to have a team that you can count on, and who you like.
[00:07:27] Shruti Panchavati: Yeah, that's, it's quite fascinating, right? The idea of almost being over prepared in a trial, and not being able to go with the flow.
[00:07:36] Shruti Panchavati: For either of you, has it ever come up where either you've seen it or you've experienced it yourself, where you're expecting something to happen and it just does not happen and sort of derails the person's argument or their case entirely.
[00:07:49] Diana Costantino Gomprecht: Yeah, I mean, I had an arbitration very early in my career where it was one of the first ones I ever participated in.
[00:07:55] Diana Costantino Gomprecht: I was a very junior associate assisting a very senior and experienced litigator at the firm. And our star witness was set to testify that morning. We had prepared her. She was excellent. And when she started testifying, she was completely different from how she had been in our prep sessions. She was unfocused.
[00:08:15] Diana Costantino Gomprecht: She was nervous. She seemed distracted. The attorney, the lead attorney, took a break immediately and the witness went to the restroom and I followed. And it turned out that that morning she had received really upsetting news regarding her health. And, you know, who would anticipate that, right? You can anticipate almost anything.
[00:08:34] Diana Costantino Gomprecht: And so she was completely distracted. And she wanted to be very private about it, which presented another issue for us. But fortunately I had a really good relationship with the lead litigator and I said we need to adjourn for today. You know, I can't get into too much detail with the arbitrators, but we need to adjourn and we need to get a new witness ready for tomorrow.
[00:08:58] Diana Costantino Gomprecht: And that's exactly what we did, because she was expected to testify for at least two days. She was our main person. And so that sticks out in my mind as something, even still today, 20-plus years later, that you just never know, and you have to be quick on your feet. You can't panic.
[00:09:17] Diana Costantino Gomprecht: You have to be sort of wired like a litigator. Not everyone is, but as long as you can kind of roll with it, think of next steps, get your next witness ready. And sometimes you can't continue for the day. Very unusual. Right. But that was an instance in my career that I'll never forget.
[00:09:33] Shruti Panchavati: That's a really important, I think, advice.
[00:09:36] Shruti Panchavati: Don't panic, because I do think so many of us are constantly used to being overprepared, you know, have a script written out for any time you enter a courtroom, and those moments of just a judge overruling you or a witness not being present or saying the wrong thing, that's when it seems like litigators ultimately shine.
[00:09:55] Shruti Panchavati: Melissa, do you have a different perspective? Did something similar happen to you?
[00:09:59] Melissa Jampol: So I grew up in the Manhattan DA's office where the cases we were trying, we never knew if we would actually get our witnesses. And I actually had a really funny thing happen, which was I had a case that was a robbery of a delivery man in northern Manhattan, and we could not find him.
[00:10:17] Melissa Jampol: And the only way I could get him to come to court was to call his employer at the restaurant. And then the restaurant, this is pre-cell phone days, pretty much. So the restaurant guy would tell his employee, you need to go down to court. So trial comes, we can't find the guy. He comes very late. He testifies.
[00:10:39] Melissa Jampol: I then about two months later get on the subway and right in front of me is the guy, the witness, is standing on the subway, waving at me, going, hi, Miss Melissa. Hi, Miss Melissa. So, you know, I never thought that I would find one of my witnesses in the giant city of New York City just standing in front of me in Manhattan.
[00:11:00] Melissa Jampol: But it is an example of, you know, you have to be able to know where your witnesses are, which was pretty much never what we had when I started in the DA's office. And you have to be ready, I think Diana's story is really instructive, you have to be ready with your next witness. You can't just say, oh, we're not going to prep the next person because this person's going to be on the stand for two days.
[00:11:23] Melissa Jampol: You just never know. And you have to have a clear idea of how you can keep things going. The proceedings go faster or slower than you think. And you have to have a team that you can depend on to be able to help you be nimble for the unexpected.
[00:11:39] Shruti Panchavati: That's fascinating, especially, we all think about trial teams as being just the partner, the associate, but it's fascinating to know that, you know, a lot of the unpredictability in trials really comes from everything surrounding you, and having a trial team be able to react to those things.
[00:11:54] Shruti Panchavati: One thing that's interesting that we haven't talked about yet are these third parties like witnesses, vendors often are something that trial teams use pretty frequently for technology, courtroom technology use, when you want to have something projected, exhibits, during openings, closings, or cross examinations.
[00:12:13] Shruti Panchavati: I'm often reminded of that video in the recent show Jury Duty, if any of our viewers have seen it where the defendant has an iPad that he's holding to show his client going from one location to the other and everything that could possibly go wrong in that technology goes wrong.
[00:12:31] Jury Duty Clip: As you can see here, uh, my client showed up for work on the day of the incident and this is… just a second. I'm going to have to have a talk with my nephew…Let’s wait, whoa whoa whoa, you know what, I want to see it … The video is not … show it to me … It's not, it's not working, your honor. I don't, I don't understand, um. … Is this what the jury just saw?
[00:12:58] Shruti Panchavati: So, Diana, I want to throw you this question about technology in a courtroom, and how vendors especially sort of play into that scenario. For you, either what you've seen or what you've experienced.
[00:13:10] Diana Costantino Gomprecht: Vendors have become a core part of our trial team, and not in every case. And we can talk about that. And I can't wait to see that clip you just mentioned also, because it's fantastic. But vendors are critical because they're being used more and more and you don't want to be left out and look sort of behind the times, but at the same time you want to balance the optics between you having a client who can afford such technology and use it throughout a trial as opposed to maybe a plaintiff who does not have those resources.
[00:13:42] Diana Costantino Gomprecht: So that's the first decision to be made. Do we do that in the first instance? Once we bring a vendor on board, as I said, they really become part of our trial team. And so we're in a sense at their mercy because if technology goes wrong, we need them to very quickly fix it and not lose our jury. But they are true masters at distilling very complex information into something manageable, especially for people who are not familiar with some of the topics that are being discussed in a trial.
[00:14:12] Diana Costantino Gomprecht: Melissa, I know that you have some interesting stories that you probably would want to share on this topic.
[00:14:18] Melissa Jampol: Yes. So, a case that we tried a year ago, we had made an application to the court to permit a witness to testify from Florida, we were in New York, and to prevent her from having to come up here because she was full time care for her husband, and it was not going to be logistically possible for her to leave him unattended.
[00:14:39] Melissa Jampol: So, as soon as we made the application, the plaintiff's counsel decided that they also wanted to call her, and the judge decided that he was not going to allow her just to testify in one straight shot. That plaintiff's counsel could call her first remotely and then in our case, the defense case, we could call her, recall her back to the stand.
[00:15:00] Melissa Jampol: So when the plaintiff's counsel put her up, the court technology worked great. They were able to quickly get her on the TV screen in front of the jury and she was able to testify. Fast forward a couple of weeks to our turn, we then recall her back to the stand, and the same exact TV and the same exact equipment completely did not work at all.
[00:15:22] Melissa Jampol: And we had a jury that was sitting there in a courtroom that was particularly hot, so it felt like a giant sauna in the middle of the winter. And we had a really long time before she was able to testify. So, we had her on the stand. She testified. I was able to use that as part of my summation, when I was referring to the evidence that she had testified to when she was recalled, by pointing out to the jury that she was worth the wait.
[00:15:51] Melissa Jampol: When I referred to her, I said, remember her? She's the one who testified twice in this case. She's the one who you had to wait for to hear what she had to say. Well, by the time you heard her, she was worth the wait, and she gave you this key evidence that really impugned the credibility of one of the key plaintiff’s witnesses.
[00:16:10] Melissa Jampol: And I think that was pretty effective, as we did get a defense verdict in that case.
[00:16:15] Shruti Panchavati: That's amazing. That's also an example of technology that goes wrong, but you kind of try to use it in your favor and figure out how you can spin it to the jury. Because actually Melissa, you know, while you were talking, it kind of reminded me of a trial that we did about two years ago in the Southern District where a witness appeared via video conference from France because they didn't want to show up.
[00:16:37] Shruti Panchavati: And it was on a very dull topic, on accounting. And at the same time, the video was blurry, the background was bad for the defense, she was talking in a very hushed voice where the jury couldn't really properly hear what she was saying, especially through the accent, and on top of that, an interpreter that was here in the U.S.
[00:16:55] Shruti Panchavati: And you just come to realize how much technology, while it can really help your case, it can also really impede your case at times. Had the witness just been here in the U.S. and traveled, it would have been a far more effective just testimony to give.
[00:17:07] Diana Costantino Gomprecht: Sometimes we have situations where technology really isn't the best way to get our view across, where the topic is so serious or personal and you really rely on the litigator to perform, right? To reach the jury on a different level.
[00:17:20] Diana Costantino Gomprecht: And I think one of the movies that depicts this really well is from 1993, Philadelphia, which starred Tom Hanks and Denzel Washington, two of the greatest. And I think the opening statement made by Denzel Washington in that movie is one of the best you'll ever see, so let's take a look at that clip.
[00:17:44] Philadelphia Clip: Forget everything you've seen on television and in the movies. There's not gonna be any last minute surprise witnesses. Nobody's gonna break down on the stand with a tearful confession. You're gonna be presented simple fact. Andrew Beckett was fired. You'll hear two explanations for why he was fired, ours and theirs. It is up to you to sift through layer upon layer of truth until you determine for yourselves which version sounds the most true. There's certain points that I must prove to you. Point number one, Andrew Beckett was, is, a brilliant lawyer, great lawyer. Point number two, Andrew Beckett, afflicted with a debilitating disease, made the understandable, the personal, the legal choice to keep the fact of his illness to himself. Point number three, his employers discovered his illness, and ladies and gentlemen the illness I'm referring to is AIDS. Point number four, they panicked.
[00:18:49] Melissa Jampol: I think this is a really great example of storytelling and the power of just being an oral advocate for your client in the courtroom, without bells and whistles, and really speaking to jurors as real people, and not forgetting, because you're in a fancy courtroom, or there's all the ceremony, that common sense is going to be the way in which most jurors are going to look at things.
[00:19:10] Melissa Jampol: And I think the clip does a really good job of distilling that and of bringing out the emotion that accompanies a lot of the issues that do make their way to trial. You know, sometimes they are dull accounting issues as Shruti was just saying, but sometimes they're, you know, really, really matters of extreme importance to the litigants, whether they're in a company capacity or an individual capacity, and there's a lot of emotion that accompanies actually being, setting foot in the courtroom as a litigant.
[00:19:47] Shruti Panchavati: It really goes to this idea that simple is sometimes best. So we've talked a lot about what makes a good trial team, what you really need next to you when you're going into these type of situations. I want to turn slightly to the flip side of it, which is our second topic, of what makes a dysfunctional trial team.
[00:20:08] Shruti Panchavati: I think a lot of us have seen clips in movies and have an idea of it, but you know, experiencing it and seeing it in person is very different. So, Melissa, just starting off with you, I know you've done tons of trials in your career. What are the signs or patterns of a typical dysfunctional trial team?
[00:20:24] Melissa Jampol: First of all, I've never been part of a dysfunctional trial team, so let's just be clear on that, but I've certainly have been on the sidelines for plenty of them, and I think that, you know, one of the signs of it is that when there's a difference in the theme or difference in the key strategies. And a lot of it is that a lot of things in the law are not clear.
[00:20:46] Melissa Jampol: I always say, if you ask five lawyers, you're going to get seven different answers. And I think people do have very different ideas of what's the proper way to prepare a witness or what's the proper way to do an examination outline, what's the proper way to present an opening or closing. And so you really have to get on the same page with your team before, well in advance of the trial, so that you don't get a dysfunctional trial team.
[00:21:12] Melissa Jampol: And I did have, as I said, some experience seeing dysfunctional trial teams on the sidelines when I was at the U.S. Attorney's Office in particular, because things were tried often in pairs or more than pairs. I saw people who were fighting over who was actually doing the closing. Or trial partners even refusing to speak to each other unless they really had to and not fully communicating and becoming part of a team with a common goal, but just more getting very focused on who was doing what.
[00:21:45] Melissa Jampol: And I think that it's hard. There's a lot of stress accompanying being on trial. But that you have to create a way to manage that stress well in advance of setting foot in the courtroom.
[00:21:56] Shruti Panchavati: I mean, the stress of a trial, I think, is something that most people talk about but never really get to experience or handle until they're there in that moment.
[00:22:05] Shruti Panchavati: Diana, what about you? Have you seen or experienced these kind of dysfunctional trial teams that just cannot get it together? And how does that typically manifest itself into, you know, a day to day and how they appear in front of a jury?
[00:22:18] Diana Costantino Gomprecht: Yeah, I mean, I think what I've witnessed the most of is an adversary being very disorganized and unprepared, and it's almost painful to watch.
[00:22:27] Diana Costantino Gomprecht: And so, you know, it can be very uncomfortable for a jury to see that, a judge is a little bit more used to it. So you never want to see that. I also think that having a good trial team allows for even the non-active participants to watch what's going on around you. So that, you know, if what Melissa described is happening, that you can make maybe the lead trial attorney aware of it, to say, look, you know, the jury's noticing when you're crumbling up paper and throwing it or whatever might be happening, because you're in a different position.
[00:23:02] Diana Costantino Gomprecht: You're not in the spotlight focused on the next witness. You're there oftentimes to observe and see how the jury is taking it in. So even though it's not dysfunction, it's really great to have a team of observers, frankly. And so, just because you're not in the moment cross examining a witness or taking direct testimony, you're still present and you're still looking and reading everybody, reading the room, so very important to have a team like that.
[00:23:31] Shruti Panchavati: You know, Diana, when you mentioned that, it kind of reminded me of my last trial that we did, where there were three senior partners on the other side of the team. And at one point, I think they just started arguing with each other, especially during jury selection. And the judge actually pulled them to the side, outside of the purview of the jury, but still in front of us, and yelled at them about their behavior and how it was really impacting not only the progress of the trial, but overall just made them seem so disorganized.
[00:24:01] Shruti Panchavati: So it's interesting, things that you think people don't pick up on. Everyone's just always watching you. Melissa, I want to ask you, you know, thinking about these dysfunctional trial teams and how they play out at trials. When these things do happen and ultimately, you know, everyone gets stressed.
[00:24:18] Shruti Panchavati: It's long nights, long days. We're all together. What advice would you typically give? I know Diana mentioned try to talk to the more senior people involved, trying to make them aware. Any advice you might give to people in that kind of situation on how to handle it?
[00:24:32] Melissa Jampol: I think everyone has to understand that when you're on trial sometimes, you shouldn't take things so personally when you are dealing with your colleagues.
[00:24:40] Melissa Jampol: So that I think is something that you have to get a bit of a thick skin. Just like, as we were talking about getting a ruling that is not going to go your way, is that stuff is going to happen along the way that you can't anticipate and that nobody's going to like, or nobody's going to like the way someone spoke to them or something like that.
[00:24:59] Melissa Jampol: It's just inevitable, going to happen. So I think that that is there. I mean, you want to obviously be within the bounds of legality of how you treat your colleagues. And you want to also talk about, you know, things that if somebody does feel particularly slighted, you need to acknowledge that.
[00:25:21] Melissa Jampol: But I think that in terms of ways in which to work things out, you know, when you're done for the day, or you're having dinner together or things like that, finding a way to bring people together is the way that I would recommend.
[00:25:36] Diana Costantino Gomprecht: I think the end of a long day of trial is sometimes critical to starting on the right foot the next morning because that's when the team comes together to debrief.
[00:25:48] Diana Costantino Gomprecht: We're usually eating a meal together. The stress is not at the same level as it is in the courtroom or the arbitration room. And you do, Melissa's right, you do sort of have to put the past behind you and move forward. If someone was a little triggered during the day because stress levels were high, it's not personal, and it's just part of the process.
[00:26:08] Shruti Panchavati: Yeah, it seems like at the end of the day, sometimes you sort of black out what people are like during a trial experience. So now I'd like to shift gears and talk about our third discussion topic. I think we've touched on this a little bit as we've been talking, but the idea of how juries, arbitrators, and even judges perceive trial teams and why it really matters.
[00:26:31] Shruti Panchavati: I know we've talked about poor communication, people viewing stress, things like that, maybe even how you present your case. Diana, starting with you, I've heard generally that everything you say in a courtroom, from how you dress to how you interact with your colleagues, matters. Can you speak to that a little bit and why that matters and how the jury might even perceive that differently depending on how you're interacting?
[00:26:58] Diana Costantino Gomprecht: Sure, sure. I mean, juries are people just like us. And so the most important thing I think is to make them feel like they're being treated with respect. And so they're dedicating their time. I mean, we're all required to do it as citizens and it's part of our duties to serve on juries, but, you know, they're spending their time, we want them focused.
[00:27:17] Diana Costantino Gomprecht: We don't want anyone feeling uncomfortable. And so, you know, dress is important, right? You want them to know, as well as the judge, that it's a serious process. People's lives, businesses, integrity, all of that could be at stake, and that you respect that they're there in the room with you listening, paying attention, and ultimately going to be the finders of fact for your case.
[00:27:42] Diana Costantino Gomprecht: So I do think it's important to dress the part, wear suits, don't look like you just rolled out of bed as hard as that is sometimes when you're pulling in all nighter to prepare for the next day. Look like it matters and that it's important to you. The rules on dress have definitely changed over time.
[00:28:02] Diana Costantino Gomprecht: But I am a firm believer that business suits before a judge, jury, and arbitrator are mandatory.
[00:28:12] Shruti Panchavati: One partner, a long time ago, once told me that, you know, because judges and sometimes even your jury members are of a different generation, it's important to sort of dress as expected, where that's not the time to be creative with your outfit necessarily.
[00:28:30] Shruti Panchavati: Do either of you have an opinion on that? You know, you have people who are judging you, looking at you every day, that might expect you to be in a… women to be in a skirt suit first, and men to be in a blue and black suit. Is that something you normally discuss with your trial team, or how do you think that plays out?
[00:28:46] Melissa Jampol: So I don't discuss it with my trial team. By the time you set foot in the courtroom, you have a professional team that knows the way that they're supposed to look. I think, you know, I grew up in the DA's office in Manhattan, and there were certain rules back 26 years ago when I started, white shirts or blue shirts only for men.
[00:29:06] Melissa Jampol: And I remember that we had a rookie who joined us from Utah, rookie meaning new assistant district attorney, and he showed up to the office in a black shirt with a tie and he was sent home to change. So, you know, some folks have, in those days, had strong views on facial hair for men, whether that was permissible or not, we call them New York Yankees rules.
[00:29:33] Melissa Jampol: Most people get a trial haircut before they start a trial, so their hair is relatively normal looking. I think that's probably a good idea. Thinking about those things before you actually step foot in the courtroom shows the proceedings the respect that they're entitled to. Diana, your thoughts?
[00:29:51] Diana Costantino Gomprecht: No, I agree.
[00:29:52] Diana Costantino Gomprecht: And I have no issues with women, you know, wearing pants suits, of course not. We've come at least that far, hopefully, that women are treated the same as men. And we don't have to wear skirts. We can, if we want to. I once went to a hearing, not a jury trial, with a partner, and it was very serious, huge client.
[00:30:12] Diana Costantino Gomprecht: And on our way to the courthouse, he spilled coffee all over himself. I thought he was going to have a nervous breakdown as we were sitting in the taxi, you know, and we were trying to clean him up. And I had us, it was winter and I had a scarf. And so we tried to, we were trying to work magic in the back of a taxi cab covering up this coffee spill.
[00:30:31] Diana Costantino Gomprecht: And at the end of the day, we walked into the courtroom and he said, your Honor, I didn't look like this when I left the office. We had an issue with a short stop in the taxi and the judge, you know, kind of laughed. And this was a very well known judge in the Southern District who did not laugh that much.
[00:30:49] Diana Costantino Gomprecht: And so it broke the ice. It was human. You know, everyone's been in that situation where the worst that could possibly happen at the worst time happens and he just owned it. And fortunately it wasn't before a jury, although maybe he would have been more endearing had that happened.
[00:31:05] Diana Costantino Gomprecht: But it might be a good time to show another clip from My Cousin Vinny, by the way, which as everyone knows is one of my favorite movies, in case you haven't figured that out, where a mishap similar to the one that I just described happened. And in that movie, the judge was very much a believer that attorneys had to look a certain way.
[00:31:25] Diana Costantino Gomprecht: So when the trial first started and Vinnie Gambini showed up in a leather jacket, he was held in contempt of court and was told he couldn't come back to the courtroom in that outfit. And so let's take a look at the clip and see what happens.
[00:31:40] My Cousin Vinnie clip: Mr. Gambini, are you mocking me with that outfit?
[00:31:45] Mocking you? No. I'm not mocking you, Judge.
[00:31:48] Then explain that outfit.
[00:31:54] I bought a suit. You've seen it. Now it's covered in mud. This town doesn't have a one-hour cleaner, so I had to buy a new suit. Except that the only store you could buy a new suit in has got the flu. You get that? The whole store got the flu. So, I had to get this in a second-hand store. So, it's either wear the leather jacket, which I know you hate, or this. So, I wore this ridiculous thing for you.
[00:32:31] You on drugs?
[00:32:31] Diana Costantino Gomprecht: Certainly dress matters and even the dress of your client or witnesses matter. It shows that you're being respectful or disrespectful. Your body language matters. How do you sit in your seat? You know, if you're slouched over, if you're like, oh, look bored, juries notice that, judges notice that, and so I want to now show another scene from another movie called The Social Network, which is from 2010, so a little bit more recent, and in that movie, which many of our viewers and listeners have probably seen since it's pretty well known, Jesse Eisenberg is playing a young Mark Zuckerberg.
[00:33:10] Diana Costantino Gomprecht: And in this scene, he's been brought before Harvard's administrative board for breaching the school's security policy, violating individual privacy rights, among other things. And he's really being asked to explain his actions. And normally you would expect someone to be nervous, to, you know, try to please this administrative body.
[00:33:31] Diana Costantino Gomprecht: And we'll see in this clip that he's not really successful in doing that. So let's take a look at that.
[00:33:37] The Social Network clip: This is an administrative board hearing. Before we begin with our questioning, you're allowed to make a statement. Would you like to do so?
[00:33:45] I've, you know, I've already apologized in the Crimson, to the ABHW, to Fuerza Latina, and to any women at Harvard who may have been insulted as I take it that they were. As for any charges stemming from the breach of security, I believe I deserve some recognition from this board.
[00:34:05] I'm sorry?
[00:34:07] Yes.
[00:34:08] I don't understand.
[00:34:10] Which part?
[00:34:11] Melissa Jampol: So I think that this scene summarizes, you know, the difficulties with having a witness who is convinced that they are completely in the right and oblivious to the proceedings around them. And you could do all the prep in the world you want with some folks.
[00:34:28] Melissa Jampol: And you're still not going to get to a point where they might be, in any way, folks that people in the jury or in this case the administrative body, at all have any sympathy for. And I think that is one of the difficulties of being a trial lawyer is how do you navigate that? But in this particular case, you know, Jesse Eisenberg is wearing just completely casual clothes.
[00:34:52] Melissa Jampol: Not appropriately dressed for the situation, and really is being very, not in any way kowtowing to the seriousness of the proceeding, which they, of course, in true Hollywood style have made an enormous table with many people around him sitting in judgment of him.
[00:35:09] Shruti Panchavati: It's also another great example of what Diana and you were mentioning earlier about what not to do in front of a jury, right?
[00:35:15] Shruti Panchavati: The disrespect, almost, that people perceive. And I think it's meant to, at least in that scene, to show that disrespect. Sort of going off of that topic, I wanted to ask you both, court days, as both of you said, are long, so you're sitting there with your trial team, quite a lot of the time hungry because you haven't eaten breakfast or drank enough coffee, and the jury is probably experiencing the same thing.
[00:35:38] Shruti Panchavati: Do either of you have an opinion on whether what you eat or drink in the courtroom actually matters? I know courts typically have different rules on it. Have you both experienced whether there's a right way or a wrong way to handle that situation?
[00:35:51] Melissa Jampol: As I said, I was trained in the DA's office and the rules of my criminal court supervisor, my first supervisor out of law school, certainly ring in my head, which is, he said, you are not allowed to have at trial anything that jurors cannot have.
[00:36:04] Melissa Jampol: You can't bring in coffee because the jurors are not allowed to have their own coffee in the courtroom. And some courtrooms now, I think years later, do permit people to bring them in a, you know, sealed container or something like that, but some courtrooms don't. So, that means no food at counsel table.
[00:36:21] Melissa Jampol: The last case I tried, the plaintiff's counsel had a Starbucks continually brought in throughout the day and handed to him by his assistant while he was in mid-questioning, just a Starbucks would appear in his hand. And again, there was no Starbucks anywhere near the courthouse, none of the jurors could get the Starbucks, and that just violated the first rule of thumb for my criminal court supervisor.
[00:36:48] Melissa Jampol: That is ingrained in my brain.
[00:36:50] Shruti Panchavati: That's amazing. You know, Melissa, when you said that, I'm reminded of the last trial we did. Someone spilled an entire energy drink on the very, very nice court tables. And I think the entire jury probably missed the testimony that happened in that half an hour between the spill and the actual cleanup.
[00:37:08] Shruti Panchavati: So that is amazing, that those little things really do matter. And the jury, when they're bored, they will pick up on it. Diana, do you have a similar experience or do you have a particular rule that you follow?
[00:37:20] Diana Costantino Gomprecht: Yeah, I totally agree. I think all that stuff, you certainly don't want the jurors to be envious of your Starbucks, right?
[00:37:26] Diana Costantino Gomprecht: And to wish they had one while you're sipping away on a never ending Starbucks that are being brought in by your associates. But I agree that it's also a distraction, right? So if something spills, anytime you're doing something, you know, it's very hard for a jury to sit and focus and think for such long periods of time.
[00:37:47] Diana Costantino Gomprecht: So they will almost look for anything to distract them is what I have found over time. Right? Same thing with an arbitration panel, you know, and it's human nature. We all do it, right? When you're sitting in the same spot, looking at the same thing, seeing the same people.
[00:38:03] Diana Costantino Gomprecht: It's part of the reason why we switch up who does a direct or a cross because we don't want to create that atmosphere of, oh, this is the same thing as yesterday. We're just sitting here. So anything to distract them, they will gravitate towards it for the most part, just like anybody would who's sitting in the same seat for long periods of time. So we want to distract them in a positive way by either creating a catchphrase or elevating our voice in an animated way so that we break their staring, right? We're noticing we're losing the jury so now we speak a little higher, maybe.
[00:38:32] Diana Costantino Gomprecht: I think food and drink is a distraction and can cause a mess. So I avoid it and then that includes in arbitrations. I take a break, go to your breakout room, go to the cafeteria if you need to, go to the water fountain if you're thirsty. But that's generally my rule of thumb as well.
[00:38:55] Shruti Panchavati: No one really talks about that boredom in a courtroom. I think everyone imagines when they see on TV, which is, you know, that flash of a witness conceding that they're wrong or admitting fault, the boredom of a day to day, 9 to 5 courtroom experience is long and fascinating. Well, Melissa, Diana, thank you so much.
[00:39:14] Shruti Panchavati: I'm sure we could keep talking about this for hours. I think there's so much to unpack here, but I know you both have things to do. And one thing I want to end on is something that we ask most people on our podcast. And for listeners who might be preparing for a trial in a few months or in a few years, what is one thing that they should start practicing today or looking at today?
[00:39:35] Shruti Panchavati: And why is that critical? Melissa, I'll start with you on this one.
[00:39:39] Melissa Jampol: So if you're getting ready for a trial, the one thing you should do first is read the jury instructions, and base your trial strategy around what are the actual words that the judge is going to be giving the jurors that are going to determine the fate of your client's case and build your case around that. That's where I always start.
[00:40:01] Diana Costantino Gomprecht: For me, if you're fortunate enough to live the life of a case from day one, you're thinking about what happens if this ends up at trial? So you're planning from the very beginning, even from the moment you answer the complaint through discovery, you're building this record, right?
[00:40:17] Diana Costantino Gomprecht: And planning for the ultimate, which may never happen and likely will never happen, but maybe you'll have a motion for summary judgment. The other thing I would recommend to more junior attorneys who maybe haven't done many trials or arbitrations is to get as much experience speaking in front of an audience as possible.
[00:40:35] Diana Costantino Gomprecht: And if you don't have that opportunity, just do it when you're home alone and getting ready to come to work, pretend you're talking to a judge and just get used to the sound of your voice. Try to eliminate the filler words, which, you know, we're all guilty of. I just did it, you know, but practice makes perfect.
[00:40:53] Diana Costantino Gomprecht: And speaking is one of those things, speaking in public before a jury, before a judge, which are stressful situations. Generally, they get easier with time as we do them more and more. But if you pretend that you're doing it all the time and just talk out loud, it's a great way to practice. It's what I do for oral arguments.
[00:41:10] Diana Costantino Gomprecht: I just constantly start speaking, sometimes you end up memorizing them. Same concept for a jury and a judge, practice, practice, practice, and just talk. Your family will think you're crazy, your dog will look at you funny, but it's really helpful.
[00:41:26] Shruti Panchavati: Well, Diana and Melissa, thank you so, so much for joining us today.
[00:41:29] Shruti Panchavati: And thank you to all those in the audience for watching and listening. Please subscribe to Speaking of Litigation on YouTube or wherever you get your podcasts.
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