The Oklahoma Bar Journal December 2024

side and how to prevent the other side from introducing evidence damaging to the client. It is always a good practice to have a list of common objections with the rules and, if an issue is anticipated, research the case law ahead of time to address pretrial or when the evidence is presented. Even if objected prior to trial in a motion in limine , the lawyer must object again at trial to preserve the error and maybe again on demurrer. Frivolous objections can irritate a jury, but the practitioner must object to anything that is essential or prejudicial to their client with a valid evidentiary basis. It is best practice to avoid speaking objec tions and state the objection, such as hearsay, and ask to approach if further argument is necessary. A trial lawyer’s job is to zeal ously defend their client within the bounds of the law. Communication, preparation, investigation and knowledge of the rules of evidence and law applicable to the case are essential to performing that function; however, no lawyer is perfect, and in every trial, practi tioners should audit the trial and performance and look for ways to improve in the next case. As long as the lawyer follows these tips, they can be an effective advocate.

TRIAL PREPARATION

and has tried about 50 jury trials. In addition, she is an author who writes legal thrillers and nonfiction.

Communication with the client and investigation are part of trial preparation, but in addi tion, the lawyer should study the discovery material so that they know it better than opposing counsel. Another great strategy is to prepare the case – at least theoretically – from both the state and the defense perspectives to help better learn the pitfalls for each side. In preparing cross- examination topics, if an alleged victim or witness has written any reports or statements, given interviews or testified previously in a hearing, make a chart of the differences between the state ments; this will also help when moving to closing arguments. If a video or audio recording exists, develop a transcript. Many artifi cial intelligence or AI applications can assist with this. In addition, watch or listen and note time stamps of important material so that you are armed with the impeachment material and not fumbling to find it if and when the time comes. If the litigator is ade quately prepared when a witness says something new or different, they automatically know upon hearing it and will be armed with the ammunition to challenge that witness’s credibility. To be a successful trial attor ney, knowing and understanding the rules of evidence is essential. Based on the review of discovery and pretrial hearings, the lawyer should have an idea of what the major legal arguments will be and the major evidence admissibility challenges. One needs to know how to admit evidence for their KNOW THE LAW AND RULES OF EVIDENCE

David T. McKenzie earned his bachelor’s degree from Southwestern Oklahoma

State University, two master’s degrees from Northeastern Oklahoma State University and his J.D. from the OU College of Law. Mr. McKenzie has tried nearly 300 jury trials during his 37 years of practice and has served as an adjunct professor of trial practice at OCU. He has received the Clarence Darrow Award, Barry Albert Award, Golden Quill Award, Earl Sneed Award and Professional Advocate of the Year Award.

ENDNOTES

1. 602 U.S. _ (2024). 2. 466 U.S. 668, 687, 104 S.Ct. 2052, 80

L.Ed.2d 674 (1984). 3. Id., at 687. 4. Id., at 694.

5. Cullen v. Pinholster , 563 U.S. 170 (2011). 6. United States v. Rivera , 900 F.2d 1462 (10th Cir. 1990); Denton v. Ricketts , 791 F.2d 824 (10th Cir. 1986). 7. Taylor v. State, 1998 OK CR 64, 972 P.2d 864. 8. Id. ¶2. 9. Matter of D.D.F. , 1990 OK 89, n. 15, 801 P.2d 703, 707. 10. Strickland, 466 U.S. 668. 11. D-2002-534. 12. Id.

ABOUT THE AUTHORS

Shelley L. Levisay earned her undergraduate degree at Oklahoma Baptist University in 2007, her J.D. in 2011

from the OU College of Law and her master’s degree in Indigenous peoples law from OU in 2022. She is the Oklahoma Indigent Defense System contractor for Pottawatomie and Lincoln counties

Statements or opinions expressed in the Oklahoma Bar Journal are those of the authors and do not necessarily reflect those of the Oklahoma Bar Association, its officers, Board of Governors, Board of Editors or staff.

DECEMBER 2024 | 15

THE OKLAHOMA BAR JOURNAL