As all trial lawyers know, the course of a trial is hardly ever wholly predictable. It ebbs and flows, developing its own rhythm, but is rarely without some mystery or surprise. This is part of the lure of trial work: precisely because of its unpredictability, the trial process is for some of us an endless, irresistible fascination.
Still, too much mystery, too much surprise, can be fatal to your client’s interests and to your own good health. Thorough, effective trial preparation tempers the element of surprise during a trial, so the more you know at the start, the better. In this modest effort, I propose to set out a few of my thoughts on how to develop a trial persona. A trial persona can only complement thorough preparation, not replace it.
Be Positive, Be Respectful
The best disposition for battle is a positive one. My former colleague, Harvey Strosberg, says: Trial is war, and the weak go to the wall. I say: Preparation and presentation, and now it’s time to get it done. A positive attitude is essential. If you are or feel defeated in your own mind before the case is truly over, then it truly is over.
Recently, I was involved in what for me was a rare experience: a civil trial. Until then, my experience was exclusively in the criminal courts. Luckily, I had the assistance of a bright young lawyer as co-counsel. At one point in the trial the evidence was not going well for our side. My talented but less experienced co-counsel was perceptive enough to sense it and began to think that all would soon be lost. When I tried to reassure her, she said “Well, if I were a betting person, I’d wager one hundred dollars against the possibility of us recovering any damages. I said: “I’d take that bet in a heartbeat.” I should point out that I too had my doubts about the merits of our case from time to time as the trial process ebbed and flowed. But I also knew that a positive attitude is often the
difference between winning and losing.
As it turned out, in our case we were awarded the entire amount of the damages requested and also our costs on the solicitor/client scale. And I have no doubt now in retrospect that one reason for our success is that, despite the occasional twinges of doubt and uncertainty, we stayed with our trial program and never allowed ourselves to be governed by anything other than purposeful positive energy.
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