The Art, Craft, and Science of the Trial Lawyer
“It is the first great principle of growth that the thing is no mere aggregation.”
—Frank Lloyd Wright
The usual litigation seminars, magazines, and journals present a variety of topics by a variety of lawyers with little cohesion between topics, speakers, or authors. Such materials leave attendees and readers with the difficult task of integrating the techniques into a cohesive trial philosophy and set of procedures without the benefit of an explanation of how a discrete technique interrelates with the totality of a trial, much less the entire litigation process.
Successful trial work is not a disjointed series of techniques. Rather, it reflects a global understanding and cohesive philosophy of both the litigation process and its end result: the trial. Law schools begin the segregation of the elements of litigation with separate courses for civil procedure, evidence, and trial practice without teaching how they all are interrelated and, more unfortunately, without teaching how they all relate to persuasion. The result is too many litigators who understand only parts of the process and too few trial lawyers who understand not just the parts, but the whole process.
The goal of this article is to present litigation and trial work as an integral whole. I set this out as a preface to emphasize the need for a global view of the process and a cohesive philosophy of how to think and act like a trial lawyer at all steps in the process. There is obviously more to say on the topic of a cohesive global trial philosophy than can be set out in the space of a short article. This article deals with just three components: the attributes of a trial lawyer, the differences between proof and questioning outlines, and fighting off “settlitis.”
Courtroom skills and a cohesive litigation/trial philosophy have never been enough for success as a trial lawyer and especially aren’t sufficient in the time pressures and economic and technological demands of today. Skillful courtroom lawyers must manage and administer their cases to not only provide efficient and economical services, but to provide themselves with the freedom to be creative and to really practice the art and craft of trial work persuasion, evidence and procedure, while also thinking about case management and administration, and then integrating all of that into a global and cohesive philosophy of trying cases.
The Purpose of this Article
This article is not meant to elevate the trial lawyer over other lawyers; rather, it is an attempt to describe and define the psychology and traits that make for success in the courtroom as a specific niche and specialty area. One of the reasons for this attempt is to confirm for those embarking on a career as a trial lawyer that what they are doing is right and point out what they might not have discerned on their own. Another reason is to set out for those who do not enter the courtroom on a regular basis the abilities necessary for success there and perhaps to help them decide, in the appropriate circumstances, whether to bring in a trial lawyer who does spend regular time in the courtroom and who does possess the necessary traits. Another reason is to set out for those who have not yet entered the courtroom the traits they need to develop as they decide whether to embark on a career as a trial lawyer. Lastly, this article is written in hopes that others may write to refine and/or add to the description of traits set out herein.
The Top Traits of Trial Lawyers
The purpose of this section is to verbalize the traits that I’ve observed as essential to being a trial lawyer.
This trait refers to the raw intelligence necessary to appreciate what the case/trial is all about and to pull together the applicable law and reasoning and logic. All fields of the law require intelligence—the type of intelligence needed in trial law is different. In most fields, the intelligence necessary is that required to research and substantively understand the law in a given area. In trial law, it is the ability to understand not only the law, but also the substantive knowledge area associated with the facts of the case and the areas of the expertise of the witnesses and the knowledge of the people involved: witnesses, judges, and juries. It thus requires the desire and ability to learn anything—not just what the lawyer is interested in—and requires the desire to understand people and not just law. It is also the discipline which allows you to read the trial literature, keep notes, index the advance sheets, and continually hone and advance your skills and abilities.
2. Ability to Translate to the Jury: Skill in the Arts of Questioning and Communicating
This trait refers to persuasiveness on three levels: real world common sense, raw undeniable logic, and personal force. I've watched lawyers much more intelligent than me create wonderful questions absolutely right on point that would be dispositive on the facts and law for the most picayune appellate court. However, they have been absolutely worthless as questions to ask in front of a jury. Even if the expert witness could understand them and respond appropriately, the answers would be worthless to a jury. I've looked also at transcripts of questions I've asked in trials where I know that those questions either put a witness away on cross or were absolutely perfect re-direct questions completely making the point and defusing the cross, and wondered how those questions in a black and white transcript can appear absolutely worthless yet were so powerfully persuasive in court. It's easy to say that you have to talk to the level of the jury. That's not very instructive. It's also too shallow because you may have a jury with a range of education and experience from a laboratory worker with a high school education to a full professor with a doctorate. It is not so much looking for a particular level of language as it is looking for commonly accepted language (and terms that you've taken the time to define for the jury early in the trial) and creating questions that have a good single focus and which logically make the point.
3. Force of Personality
The meaning of this trait is not always the same. It's not necessarily physical domination. It's also rare that really soft-spokenness works. What this trait really boils down to is, "you are the message." This trait has to be used at the right time. It has to start to come out on voir dire and mature on opening, and then be used appropriately on direct and cross and in your interactions with the judge.
I've seen silk purses made out of sow's ears and silk purses made into sow’s ears by conviction and lack thereof. It works both ways. You have to watch out for the disadvantages of putting the blinders on, however. At the same time, sometimes you just flat out have to put blinders on and transfer that conviction to the jury.
5. Sense of Body/Stage Presence
At all times you must know how to use the stage of the courtroom and be able to “see” yourself and your own body language. You communicate more with your body language than with your verbal language.
6. The Inclination and Ability for Preparation
Preparation is absolute drudgery. Especially in comparison to the thrill of the actual trial: cross-exam and closings! The ability to prepare is distinct from the inclination to prepare. Although the ability to prepare varies, the inclination to prepare is under your control, and it may wax and wane as your skills in the courtroom increase, giving rise to the temptation to "wing it." This temptation must be avoided. Whether it is your 20th, 40th, or 80th trial, prepare with the ferocity you had preparing for your first trial.
7. Organization and Management
A system that makes the right things happen at the right time is an essential skill of the trial lawyer. This means you need a system to provide for the right decisions, compliance with the rules and deadlines, and the right instinctive "moves" when there is not enough time to "think it out" and to do what has to be done with the greatest efficiency. The obvious analogies are to sports and the military. Troops and teams are drilled and trained on the "basics" until they are second nature and done without conscious thought so that the conscious thinking has the luxury of being unimpeded with the mundane or basic.
Cases years ago could be handled without any particular management talents on the part of the trial lawyer. While the best trial lawyers have always had good management instincts, the art of trial work could cover over management and organizational deficiencies. Today, that isn't possible with the majority of cases that go to trial.
Organization and management can never replace courtroom skills. However, to maximize courtroom skills there must be superior organization and management of the case. In addition, clients today demand that legal services be delivered in a cost-effective and efficient manner that only organization and management can provide. Organization and management—a systematic manner of handling cases—provides the luxury of time to the trial lawyer to be able to concentrate on the creative aspects and the art of trial work rather than the drudgery of detail at the time the creative aspects are most needed: the final preparation for trial and in the trial itself.
Experience provides the ability to seize the moment—thinking on your feet—the ability to improvise—the ability to "smell"—to sense the vibrations—to know when you can go for the kill—to know how far you can push the witness. Experience allows you to make the right motions, decisions, and to pursue the right lines of questioning because of the vibrations you feel—the smell and the feel of the situation. And experience also provides the ability to understand human beings and their emotions—empathy—finding the essence of a case—knowing what you have to admit and where you can win the case. Experience is about finding the right issues—not from a legal sense, but from the human sense.
A trial lawyer has controlled passion or anger or indignation or belief that his or her cause is just one and that makes the trial lawyer want to win and to be willing to take off the gloves and not stand aloof.
10. Courage and Common Sense
Too frequently, all the research and preparation that has been done fades as the trial date nears. It takes courage and common sense to go to trial. Everything in the system is set up to push towards settlement:
(3) Your family and lifestyle; and
(4) The fear of losing. Your analysis and judgment might be proven wrong. No one likes to be second-guessed, no one likes to be wrong. It takes both courage and common sense to go to trial and win.
The strong suit of most lawyers in large litigation departments is the intelligence, logic, and writing ability to make all the necessary arguments to be able to win on an intellectual plane. Most personal injury plaintiff and defense lawyers have as their strengths controlled anger, experience, the ability to mold facts, and the ability to make common sense arguments. The lawyer that can draw out the best of each of those strengths is the trial lawyer that we each would want to represent us if we were a party in a lawsuit.
Proof Outlines and Questioning Outlines
Perhaps the best examples of the skill of translating to a jury are the proof outline and the questioning outline. A proof outline
[a] is a complete outline of the proof expected from each witness and much-favored by the litigation departments of large law firms. It is many times combined with a risk analysis tree which attempts to quantify the risks at various decision points in the proof analysis (whether decision points for the judge on admissibility or law or for the jury on fact determinations);
[b] is tailored to the legal elements and shows the sources (witness, document, etc.) of the required proof; and
[c] while valuable for a host of other reasons, is worthless in terms of actual witness questioning.
Questioning outlines come from the facts themselves. They are designed to present proof in the most persuasive way. They must be built as the questioner goes over the transcripts, statements of witnesses, documents from the witnesses, exhibits, the "paper" of the case, etc.
[a] To develop questioning outlines you must focus on each specific witness.
[b] Set up a folder just for that witness and as questions occur, throw them into the folder.
[c] Put whatever exhibits might be used with that witness in the folder.
[d] Put the witness's statements and deposition transcripts in there. Have the transcripts summarized for fast skimming at least a month before trial.
[e] Go through every part of the ring binders and source materials, pulling off questioning for each witness first.
[f] Then, with just the single witness's folder on the table, organize and develop the lines of questioning that occurred from the review of the source materials.
Next, look at the portion of the proof outline relative to this witness and see if those areas are already covered in the questions in the folder. Then, do "blank sheet of paper" thinking for this witness. Consider, without looking at any source materials, depositions, etc., what can be done with this witness, how the witness fits into the larger theme of the case, and what psychology you will use with him or her. Lastly, lay out all the scraps of paper, ideas, etc., and put them in an order that makes sense with the witness so that the questioning will start on a high note and end on a high note, while putting the chancy areas in the middle. Give each group of questions a subject and title.
Now, put the subjects together in an outline and see if the outline makes sense and flows and, if so, order the questions and, depending on the amount of time available, rewrite or type or dictate the questions. Be sure to leave room to add, subtract, or remold.
The facts and the non-facts should be molded and presented in indisputable fashion—i.e., in such a fashion that they cannot be contested or impeached.
In sum, when preparing for trial, the process has four parts:
[a] Legally, what do I have to do. Start with:
- jury instructions and verdict forms;
- essential elements of the claims being asserted.
[b] Focus by getting rid of file "stuff" and getting to each individual trial segment.
[c] Do blank sheet of paper thinking.
[d] Back yourself out and away from the microscope and see the big picture.
Develop the ability to understand and discern that you don't have to ask questions on everything or prove everything. The absence of proof in your opponent's case can give you the "proof" or inferences you and the jury need. Similarly, you need not ask everything at a deposition. There are things that you know the witness cannot deny when asked at trial.
Lastly, Avoiding "Settlitis”
What follows is a memo I wrote to an associate two weeks before trial analyzing the dynamics associated with the opposing counsel's sudden willingness to settle.
Your comment about our opponent wanting to settle (now that we are two weeks from trial and yet have substantial discovery left) is very instructive, not just for this case, but in general.
First, in this case, what you need to do now with both our client and our opponent is to keep a menu of settlement choices out there that they can select from—so it is not whether to settle but "which one should I choose?"
Granted, in this case we want it to settle as much as our opponent, but this is instructive in that this happens to most attorneys as they face a trial date and if not them, then their clients or a combination of both. Not many rational people really want to go to trial—it's hard work and it involves substantial second guessing of yourself, your prior decisions in the case, your judgment, your ability in court, as well as the great imponderable of what a jury will do.
It's instructive not so much in the sense that this is something that only happens to other attorneys and that it won't happen to attorneys like us who can beat on their chests like "Tarzan." I don't particularly want to go to trial next week either—there are new interesting cases to start work on, I would like to go up to the cabin, there's a paper that needs to get written for an upcoming seminar, I have tons of work to do on the program I'm running at the end of the month, et cetera, et cetera, et cetera. What makes this instructive is that this psychological pressure to settle that builds as a trial date approaches is on the one hand a unique opportunity for a trial lawyer to force a settlement on their terms, if the pressure on the opponent can be turned up in the right way, as well as an opportunity from a self-defense standpoint—the trial lawyer needs to build in a protection so that the same thing does not happen to them.
This is why a case management system and especially the 100 Days to Trial System is so crucial. From our standpoint, that system will alleviate much of the second-guessing of ourselves because we will be on the offensive and generating positive feelings about the case at the same time that we are turning up the heat gradually on the opponent. When the week before trial comes, the opponent realizes what a box they are in at the same time that the psychological pressure to settle has built to the highest point. That recent case we had provides an excellent example: as we neared trial, you were on the offensive against not just the plaintiff, but the co-defendant as well, and we felt we were controlling much of what was going on and could stand pat. The pressure to cave was on the plaintiff and the co-defendant and not us. I don't think that the reason why this is so is that increased activity distracts you from or allows you not to think about the various possibilities because that is just the natural increase in workload as you get to the week before trial. Rather, I think it occurs because when you are on the offensive leading up to trial, you are in control and you are making things happen rather than reacting to another's agenda.
I also don't think that the degree of control and offense has to be on every nitty-gritty detail. In some cases, you may have only very few control points and the heat is increasing purely because of particular issues that we just won't move on.
Two other factors increase the pressure to settle. The reverse side of "there's too little time to prepare" (because the attorney hasn't budgeted sufficient time) is the mind-set that believes that every case must be perfectly prepared. Watch for the perfectionist. They will never have enough time to prepare for trial and can be very vulnerable for settlement.
The last type of personality to watch for that is prone to settlement is the person suffering from "imposter syndrome." They have achieved everything they were "supposed to" achieve in life: schools, honor societies, et cetera. The last thing they can afford to do is not win. They are particularly vulnerable and posturing a settlement offer in a way they think they have "won" can be very effective.
Statistics tell us that well over 90 percent of all claims and lawsuits settle before trial. What statistics don't tell us is what percentage are favorable or unfavorable to the defense.
All attorneys have experienced the exhilaration of the opponent's offer free falling/or accelerating until their offer is accepted. Unfortunately, the flip side of that equation is the agony of imminent trial requests for increased authority by counsel and adverse trial results.
My goal in providing this article is to get you thinking globally about how you try cases and to help you develop a holistic approach to the entire case and trial process. If you think globally about your total trial process you will magnify your courtroom power exponentially over the years.