Learn from the best: a British barrister named Jim Sturman, who made his bones defending the criminally accused in England, offers some sage advice from which anyone facing a trial court appearance could benefit. I found this post via ABA Journal’s news blip dated 2/4/08 (“Trial Lawyer’s Advice: Prepare, Connect, and Don’t Despair“), and it was too good not to pass along to TIS readers.
Some of the best advice, in my view:
Good barristers don’t wing it. Without total mastery of the facts, it’s impossible to do the job properly.
My experience: Back in the day, I kicked ass at Moot Court (pardon my bluntness but sometimes, it’s the only expression that works). I had a high B average (nothing spectacular, to be sure), and couldn’t for the life of me grasp the intricacies of the Rule Against Perpetuities, but Moot Court? Was MY game, and I was good.
After winning Best Argument by decision of our state Supreme Court justices, I was blessed with the experience of taking a crack team to Miami for the regionals of the ABA Moot Court competition. It was a qui tam issue problem, heavy on the arcane Constitutional precept of separation of powers and somewhat less arcane issue of standing. We decided early on in our preparation that we would argue without notes. We didn’t realize how shocking that was, until we got to the competition and saw every single competitor heavily reliant on notes, and every single judge lead off the comments with “No notes? Very impressive.”
Yes, it was a huge ego stroke, but that’s not what I remember the most about the experience. What I recall instead was the impact on our collective advocacy skills. Being that prepared freed us up to be completely “in the moment” and respond to the give and take of the judges’ questioning in a more relaxed (and more effective) manner.
Having said that, it’s important to see the wood for the trees. As your career progresses it becomes crucial to be able to identify which documents to study in detail, and which to pay less attention to.
My experience: until you’ve had the actual experience of being flooded with irrelevant paper in high-pressure litigation, you don’t know nausea. You can’t let every case — or even a single case — get to you like that, at least not for long. Take a deep breath, roll your eyes, and focus on the issues. With your case strategy in mind, dive in to discovery in a smart way. Especially for solos, it’s easy to get overwhelmed.
If you don’t understand what the expert is talking about, how on earth are you going to explain it to the jury?
My experience: In the first deposition I conducted of an expert witness, I discovered “the secret” to deposing opposing experts quite by accident. It was a complicated case that depended on water-tables and environmental science — two subjects I wasn’t exactly “up” on. I prepared the best I could but ended up having to adopt a “teach me” attitude in the deposition. And it had an interesting effect: as we went on, the expert became more and more officious, and I became more and more encouraging of his preachiness. By the end of the deposition, the plaintiff’s lawyer wasn’t exactly looking forward to putting his guy on the stand.
For your own experts, use them as teachers. Most of them just love to teach others what they know — it’s human nature. Leverage that tendency in your favor, and save yourself some time as a solo!
I recommend reading the whole article, and giving thought to how these tips translate into your own practice. Leave us a comment below and tell us what you think.
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