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Preparing for Trial

I spent a good bit of my weekend preparing for trial. It’s a draining experience, though not nearly as draining as trial itself. This particular trial has very high stakes. My client’s earliest release date will be more than seventy years from now if he’s convicted.

Being able to speak in public, knowing the facts of the case, and understanding the rules of evidence are rarely enough to effectively try a case. There are countless variables in almost any trial, and anything can happen. Every trial I’ve done has taught me that one of the most important skills a trial lawyer can have is the ability to predict problems that might arise and prepare accordingly.

My background is in music. In music, you do your best to gain technical mastery of your instrument. You learn the piece of music you’re going to perform, then you go out in public and do more or less what you’ve been doing in the practice room. For the most part, the audience is mostly what distinguishes practice from performance.

My first trial was a complete shock to me. I received a lot of guidance from established attorneys I respected, but no matter how much I wish it wasn’t the case, that just wasn’t a substitute for personal experience.

Opening argument felt familiar. I knew what I was going to say, and I said it. There’s a certain amount of improvisation even to opening, as the prosecutor’s opening or the jury you’ve picked may affect what you say, but that stuff is fairly predictable. You can prepare for it. Just learn the case, practice, and do your best.

What happens between opening and closing argument is a different story. Prosecutors do crazy things trying to get information out of witnesses. Witnesses do even crazier things, and judges may be the most unpredictable of all. Put enough pressure on people, and it’s almost impossible to know what they’re going to do.

As I’ve gained more trial experience, I’ve found myself devoting more and more of my preparation time to figuring out how I’m going to deal with situations I never would’ve thought of a year or two ago.

When you know what types of things have certain effects on witnesses, you prepare your questions accordingly. The content of my cross may be similar to what it would’ve been before, but I definitely ask things differently.

The same is true of objections. When you know the kinds of mistakes the prosecutor is likely to make, you’re able to make your objections infinitely more effective. Few things feel better than being able to give the court citations for the rule a prosecutor’s broken and the case interpreting it in your favor.

Being able to anticipate what’s going to happen is an incredibly powerful tool to have at your disposal. Unfortunately, it’s something you can’t rush. It’s something you build one trial at a time, and there’s no substitute for experience. I envy lawyers with decades of trials under their belts.

Trying a case is never going to be like playing a concert. I’ve come to grips with the lack of certainty, and I know there are always going to be things I can’t practice. With enough time, though, I imagine the feel of trial will more closely mirror the feel of a music performance.

Strangely, that almost makes me sad. The unknown is one of those things that makes trial so exciting.

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2 Responses to "Preparing for Trial"

  1. Matt Brown says:

    I wish I still had an mp3 of the legendary Hallelujah Quintet to put up with the post. Only then would the readers truly understand uncertainty…

  2. Phil says:

    I bet that sweet brass quintet you used to play with helped prepare you to deal with the unexpected. ;-) Having heard some of those old recordings, I can say that no one really would know what would happen when you guys started to play.

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