As I round the end of my first decade of practice, I recently had occasion to reminisce about my very first trial in March 2008. Remembering the stress and anxiety is fun in retrospect, although when you’re new to trials, the experience is somewhat petrifying.
Thinking back to my early days as a trial attorney makes me come to appreciate the importance of the skills you learn over time that come only with experience. Here are five reasons why it’s important to have an experienced trial attorney on your team when you are fighting to get the result you want, whether you’re prosecuting or defending a case.
(1) More forceful negotiating. Though they would never admit it, most attorneys want to avoid trial if at all possible. It is time consuming, tiring, and requires a lot of focus. You’ll look like an idiot if you’re not familiar with the facts of the case and the rules of evidence. While most attorneys want to avoid trial, this motivator becomes much stronger for the inexperienced practitioner, whose negotiations will inevitably be impacted.
I usually want to avoid trial too, if only because it’s expensive for my clients. But I always visualize how a trial is likely to go very early on in the case. If you are “trial ready”, even just mentally, you can’t help but advocate more forcefully for your client.
(2) Maintaining clearer focus on the big picture. A big part of what I do is winnowing down information. 30 minutes of testimony are better than three hours. Five photographs are better than 50. An attorney who is unsure of herself will hesitate to omit any possible fact from her presentation, fearing it could be a mistake. An experienced attorney has the judgment and confidence to make an informed evaluation as to what piece of evidence will be persuasive.
(3) Maintaining clearer focus on the courtroom. When do I object? How am I going to introduce this document? How do I overcome an objection? How do I elicit the information I need from a witness without asking leading questions?
When you first learn to play chess (another hobby I enjoy), you focus your moves on what each piece is allowed to do and what vulnerabilities exist on each individual square. Once you internalize this information, you free up mental space to analyze and form a real strategy. Litigation is similar. A more relaxed questioner on direct examination will mean a more relaxed witness. An attorney who can pay attention to the witness’s actual answers instead of just focusing on the question is going to end up with much better testimony. An attorney who can concentrate on the judge’s demeanor and reactions to different questions will get the best result of all.
(4) Knowing the difference between TV and real life. It takes a few cross-examinations before you genuinely come to learn that trials in real life are not like trials on TV. This means “gotcha” questions don’t usually work unless very, very carefully planned. In real life, a witness is not going to break down on the stand sobbing “you got me, it was all a lie!” She will just claim not to know or to remember. In most cases, the allure of the gotcha moment is hard but necessary to let go of. Plan for “I don’t know” and “I don’t remember” and you can get your point across quite effectively nonetheless.
(5) Knowing when to hold ’em and when to fold ’em. Over time you get better at distancing yourself from your client’s position and being able to evaluate the situation objectively. I can’t overstate the importance of this last item. In some ways, attorneys are translators for the court. We take a bunch of messy facts, sift through them and figure out what is salient to the court. If the translator appears credible and neutral, the original information will be credited. If the translator appears to be exaggerating, failing to consider context, and bloviating, it reflects poorly on the litigant. Sometimes this means conceding weaknesses in your case and, in my experience, the ability to show weakness can ultimately be your greatest strength.
So what ever happened at that first trial? I didn’t even have the chance to put on my defense because the judge granted my application to dismiss the proceeding at the close of the landlord’s case. I should have framed the transcript as it remains one of my greatest victories:
I have to think that if people stood even a 1 in 100 trillion chance of being evicted for the conduct there then everybody who ever brought an HP proceeding would be evicted. Everybody who ever complained to a landlord to get some repairs would be evicted. I think that everybody in New York City would be evicted. We don’t even have in this case eccentric conduct, and you can’t be evicted for eccentric conduct. So the court concludes that this was as frivolous a proceeding as one is ever likely to see.
The occasion to reminisce came about when eight years later, I received a call from the same tenant; the very same landlord had tried to start an even more ludicrous case against her. I have to confess how fun it was to be able to quote this amazing dismissal language in my “don’t you dare” letter. Some things never change…..
Fellow practitioners, what did I miss?