By Zasha Rodriguez, Partner
Each trial like a football game is a different battle. You and your trial partner, like coaches, will have specific strategies lined up for the “game” ahead. Getting ready for a trial involves many stages of preparation from off season to game day planning. Your mindset should be that of an athlete, who during their off season continues to train. Some argue that off season training is the most important phase of any conditioning. By taking ‘off’ off season one losses opportunities to strengthen and sharpen trial skills crucial in improving your chances of success at trial.
Even before you start preparing for voir dire, direct and cross examination, here are several things you can do to become the MVP of the trial.Conditioning
Goals of athletes during off season include providing a base level of conditioning. Having a solid base line is a necessity for athletes to build and improve their strength and skills in order for them to be in tip top shape for the Big Game. Below are a few things a trial attorney can do to work on their baseline when they are not in trial:
• When you are in a courthouse attending another matter sit in the gallery and watch a trial.
o Even if you have been successful in trial in your jurisdiction your style may not be suitable for others. Legal cultures are different between courtrooms, counties and states. This also applies in federal courts. Watching a trial will help you gain insight on what litigation styles work for the venue and what style resonates with a jury.
• Reread the Evidence Code cover to cover.
o In order for the jurors to hear your story at trial you need to ensure you control the evidence that is introduced and excluded. Knowing the rules of evidence is essential before going to trial and a refresher on the rules is important in order for you to use them to your advantage and effectively in trial.
• Read articles, treatises, books and attend seminars regarding trial tactics.
o Stay current. Laws, compositions of jurors, technology and more will change.
Staying up to date will help you better understand and relate to your jurors and how you and your case will be viewed by them.
• Take Improv Classes.
o Trials rarely happen like we prepared for them. A good trial attorney needs to be able to listen and react. If you go into the trial planning what you want to happen, you will miss important information presented by opposing counsel. Classes like improve will get your creative juices flowing, help improve your listening skills and help you think on your feet.
• Ask your friends, families and colleagues about your nonverbal communication.
o Nonverbal communication is sometimes more important than verbal communication. Do you cross your arms when you are speaking? Do you have difficulty maintaining eye contact? Do you slouch when you are sitting? Do you make facial expressions? Don’t bring bad habits into the courtroom. Be aware of how others perceive your mannerism, it could cost you that verdict.
In order to succeed and defeat your opponent, you cannot only have a strong offense. It is vital to have a strong defense as well. One way to dominate the trial and control it is by doing a full preparation work on your opponent. You may not necessarily try ever single case against a specific attorney but having a base of information of each potential ‘opponent’ will save you time in the long run and give you additional time for you to concentrate on other areas of the trial such as opening statement and direct and cross examinations. Below are a few things you can do during your off season:
• Research your opponent. How many cases have they tried? What type of style and techniques do they use? The more information you know about them the greater it will facilitate your trial preparation.
• Ask your colleagues. This is one of the easiest ways to find information about your opponent. What makes them tick? Are they aggressive or passive? What is their rapport with judges?
• Watch them at trial. What are their weaknesses? How do they handle curve balls? How does the jury perceive them?
• Read trial and deposition transcripts.
• Create a bank of cases, transcripts and orders of cases the attorney has been involved in.Referees
Know your judge. This is a major part of the equation to being successful at trial. A judge’s personality will factor in how a case may be decided. How do they apply the law? What type of evidence will they allow you to introduce? Knowing their biases upfront will help you structure your case for trial. How do you get to know your Judge?
• Create and maintain relationships with attorneys who practice or have practiced before the judge and ask what they know.
• Research your judge. What is their history? Written opinions? What were their roles before becoming a judge? Involvement in organizations?
• Become friends with the judge’s court staff. Speak to the clerk, bailiff and judicial assistant. Ask them questions about the judge’s preferences and procedures. They know the judge best and can be an asset to you and your case.
The more you know about your judge’s personal preferences, the more prepared and comfortable you will be the day of trial.Field and Equipment
You are on trial as much as the evidence. While your attire isn’t going to necessarily win your case at trial, jurors will make judgments about you and your character based on your wardrobe and accessories. Take a look at your suits, ties, shirts and shoes. Do they fit you properly? Are they too flashy? Are they in good condition? The old saying goes you can’t judge a book by its cover but a jury will certainly try. This advice also applies to your client and/or potential witnesses you intend on calling at trial.
Another reflection of you is the demonstrative aides used to assist you in trial. Take a look at the trial graphics you have used in the past and consider upgrading. Are the modes you have been using antiquated? The use of technology during a trial may help you connect with millennial jurors and better explain your case and introduce your evidence and arguments. Today’s society is use to receiving information on screens and phones, not on poster boards. Being able to present evidence via technology provides information in a way that is consistent with how jurors expect to receive information and is easily digestible. With this being said, know what technology and equipment is available in the courtroom. Don’t show up the day of trial without knowing this piece of information. Playbook
Collect your data. For athletes and coaches a playbook is their Bible. A resource they refer to and study. It’s an accumulation of years of knowledge, plays and data. Not all playbooks are created equal. Creating a go to resource like a playbook, will allow you to quickly access information and assist in executing it. So what resources and information should an attorney have in their playbook? Playbook content will vary depending on your needs. Here are a few things to start with:
• Case law
• Create sections and a table of content. These sections should include: pleadings, Trial Order/ Deadlines, evidence checklist, witness outlines, voir dire outline, exhibit list etc.
Again, there is no ‘right’ or ‘wrong’ way to create a playbook. Each attorney’s playbook will be different but having a baseline and assembling your playbook and building as you prepare for trial will help you be more fluid. The playbook will help you control the game and win.
Trial preparation should never be neglected and should never be haphazard. Dragging out your inner athlete during off season will help you be more prepared for trial. By continuously building your knowledge and skill baseline, the more prepared you will be at the game. You can’t expect to play your best if you haven’t given it your all the months and weeks leading up to trial. By failing to prepare one increases their chances of defeat.