I have been thinking a lot about trial techniques recently between giving feedback at Teen Court and getting my mock trial team ready for their competition on February 4. I find that participating in these activities and coaching the students not only leaves you feeling awesome, but also keeps your skills sharp in between your trials.
In teaching the students, I have discovered many growing pains a long the way. Basic things I take for granted I have to teach: where to sit in the courtroom, what to do when addressing the judge, how to argue an objection, and how to admit an exhibit. For example, I have been referred to as “Your Majesty” instead of “Your Honor” during practice. In the mock trial setting, little mistakes and misstatements can be funny to everyone involved and of no consequence to the fictional client. But, not so much in the real world.
A lot of lawyers do not actually try cases. I’ve known lawyers who have been practicing for decades and have never once had the pleasure of meeting twelve new people in a courtroom. Some lawyers do not have the opportunity because they do not practice in an area of law that is particularly conducive to allowing them to gain the experience. Maybe they do primarily research, or appellate work, or perhaps they work mainly with real estate closings. However, there are many personal injury attorneys who hold themselves out as trial lawyers and simply try their hardest not to try a case. It is my opinion that more often than not, this phenomenon arises from fear more than anything else.
A trial is scary. The prospective jury members are scared that they will get picked to sit on the case; to have to take time out of their lives to hear about someone else’s problems. The jury members selected may be afraid they will not be given all the information they need to make a decision, or that they will not make the right decision. The clients are scared; what will happen to my case? The judge may be scared. Will I get appealed? Will I make the correct rulings? The lawyers are often scared as well. Will I do the best I can for my client? Will I win, or lose? Did I forget something? Unfortunately, not facing these fears on the part of the lawyer can often be to the lawyer’s and client’s detriment. A lawyer who does not have trial experience, or who can claim to have taken cases to verdict, will not present a credible trial threat. This can cause less successful results in settlement discussions.
The fear lawyers have for trying cases does not arise out of not knowing how. Every law student will at one point (allegedly) learn how to try a case. They will learn about the rules of evidence and how to argue those pesky objections, how to give a forecast of the evidence in the opening statement, how to ask the right questions to get the right answers, and how to give a closing argument. True, it may have been quite a while since the lawyer attended law school, but I’m sure they still probably remember not to refer to the judge as “Your Majesty.” The problem I have with the way trying a case is taught, however, is that the methods taught are “by the book.” The traditional way of presenting a case is more suited for jurists rather than juries. In essence, it’s boring to the average person who is going to be seated in the box.
When it came time for me to try my first case, I was, as you can imagine, a little afraid. Getting lost on the way to the courthouse certainly did not help those fears that first morning. But, I felt a little better because I had a good trial advocacy professor in law school. My learning how to try a case did not end with law school. Before that first trial, I began preparing in earnest. I read books by James McElhaney and David Ball. I researched cases. I read John Grisham. I even sat through an entire day’s marathon of Law & Order episodes.
In the three years since that first trial, and over the course of many others, I have learned that school is not where the educations stops. Many lawyers are smart enough to recognize this, but instead they learn new “tricks” or “gimmicks” that worked for other lawyers in the courtroom. I find that people (e.g., the jury), do not like being tricked. I certainly don’t.
Whether your reading this post because you’re a member of the public wondering how we lawyers do it, or a lawyer wanting to know how others do it, or a member of one of my mock trial teams reading this because I assigned it as homework, here are six keys to success in the courtroom I have learned over the years:
- Preparation, Preparation, Preparation. Please don’t wait until the weekend before the trial to discover that you are missing documents that you need. How about figuring out your theme and theory of the case before calendar call? Know what you are going to say, how you are going to say it, and the facts and law that backs up your position well in advance of the trial.
- Relate. Lawyers are not a lovable group of people. There are volumes of books filled with jokes written about us. The word lawyer is usually precipitated by some sort of profanity or derogation. Therefore, do not act like a lawyer. Don’t get me wrong: You do not want to start calling the Judge by their first name and wearing your favorite pair of Rainbows to court. However, you do not have to be a walking stereotype either. Try not to act like you’re better than everyone else (especially your client) or that you are all-important (you are not). Be who you were before you went to law school.
- Flexibility. After you prepare, prepare, and prepare, you can rest assured of one thing: something will not go as planned. Calm down and carry on. Think fast, make a decision, and handle it.
- Creativity. Whiplash is whiplash, but no two stories are exactly the same. Don’t prepare for trial by just changing the names and places you used in your last opening statement.
- Care. About the case and what you do for a living. If you don’t seem to care, why should the jury? You are technically correct if you present evidence to the jury and argue the facts with the law in your statements. But, when’s the last time anyone who hasn’t gone to law school cares about cold, hard facts? The truth of the matter is we as people make decisions on an emotional level and then justify those decisions with rationale thought. If you do not have a passion for your case and for what you do, then your chances of persuading a jury to care and find in your client’s favor is much lower.
- Credibility. Do not try to be something you’re not. Be yourself. Have you ever met a person who you thought was a “little off?” Something just wasn’t right about them, and that made you not trust them? That’s what the jury will think about you if you try to be something you’re not in the courtroom.
Disclaimer: The views of the author are his own. This blog is designed to both entertain and inform members of the general public and the legal community concerning issues surrounding the trial of personal injury cases. As such, you should not treat this as legal advice. Legal advice normally is not entertaining. Reading this blog post also does not create an “attorney-client” relationship. The author will admit that he rather enjoyed being referred to as “Your Majesty” during that one practice. He attempted to implement this at his home, with the wife. He cannot recommend this for the husbands that may be reading. He can recommend a good brand of couch, however.