In Law360’s recurring column “Trial Pros,” well-known and prolific trial attorneys participate in short interviews where the same five questions are asked. It’s a quick read and one of my favorites. Sometimes the column highlights familiar trial pros (Robin Gibbs and Rusty Hardin from my years in Texas, and Terry Bird from my years in California, just to name a few); other times it highlights trials pros whose accomplishments are less familiar to me but no less impressive. Every column includes the question: What does your trial prep routine consist of? Every answer either teaches me a new tip or reinforces a current habit.
Trial Prep Routines are Common
Another common routine is to perform a “deep dive” into the discovery, transcripts and other case materials to ensure they know every word on every page of any document that might play a role at trial. The key here is to get beyond mere familiarity with the important documents in the case and develop a real understanding of their content, importance and where they fit best.
A third routine is to collaborate closely with a trial team — and sometimes folks who are not on the team — to test and refine, and retest and re-refine, every aspect of the case. This not only creates group camaraderie that leads to greater productivity, it also ensures that no stone is left unturned and no line of inquiry or argument is missed or forgotten.
The consistency with which trial pros have revealed these same trial preparation routines as being crucial to their courtroom success proves that they are battle-tested and highly effective.
Trial Prep Routines are Personal
For example, some trial pros turn their “deep dive” into highly detailed direct- or cross-examination outlines for every witness, while others use it to narrow the key documents in the case to the bare minimum in a less-is-more approach. Some trial pros prepared drafts of an opening statement or closing argument at the beginning of their preparation and then refined it over time, while others preferred to look at the case with “fresh eyes” and remained open to new ideas and themes late into their preparation routine. Creative and funny trial pros try to create memorable, “jury-friendly” themes, and trial pros who prefer a team approach try to foster an environment that encourages brainstorming and open debate.
Every trial pro is keenly aware of his or her own strengths and weaknesses and has intentionally shaped his or her trial preparation routine to maximize the strengths and minimize the weaknesses. At the end of the day, “know yourself” is the common thread that connect all of the trial preparation routines and underlies trial pros’ advice to other lawyers.
The Secret to Trial Success
Technically, knowing your opponent is more a purpose or result of effective trial preparation than it is a routine than can be followed. But any effective routine is necessarily designed to provide the best chance at winning at trial; that’s the whole purpose of trial preparation. As any debate coach knows, you cannot know your own best case until you know your opponent’s best case.
Sun Tzu said it this way in The Art of War around 2,600 years ago:
The trial pros profiled by Law360 have been victorious far more often than they have suffered defeat. Thus, implicit in their trial preparation is ensuring that their individual routines — theme development, deep dives, collaboration, etc. — force them to learn their opponent’s case as well as (and considering their skill, probably better than) their opponent knows his or her own case.
Many attorneys develop trial themes. Thus, an effective theme must connect with the jury or judge better than the other side’s contrasting theme. Picking a theme without considering your opponent’s possible themes is extremely risky, especially if your opponent is a skilled trial pro who may utilize a similar routine for his or her own client’s case.
A deep dive is time-consuming, serious work. But a deep dive that simply focuses on knowing every potentially relevant document may become wasted effort if the analysis does not focus on all of the ways a document can be used for and against your client. Seasoned trial pros do not just study the materials until they know them cold; they put themselves in the other side’s shoes and learn all the other side’s strengths as well as their weaknesses.
The most important benefits of working with a team are the constant debates and the devil’s advocate roles that naturally develop when preparing for trial. Far more than simply dividing up a heavy work load, trial team collaboration is most useful when you can rely on colleagues for honest — and often highly critical — critiques of trial strategy. This means challenging your own case constantly. When used effectively, collaboration will both strengthen team dynamics and improve the chances of winning at trial.
The “Secret” Drives the Routines
Getting to that level of trial practice requires intentionally setting out to learn the other side’s best case at the same time — and possibly even before — you learn your own best case. Even though the concept that the best lawyers can argue the merits of both sides equally well is taught beginning the first year of law school, it is easier said than done. And more often, it is simply forgotten when the stress of trial preparation starts weighing heavy and you are trying to stay upbeat and encourage your client and colleagues.
Ultimately, the “secret” to effective trial preparation is not actually a secret. If you stop and think about it, it is almost self-evident. Law360’s “Trial Pros” interviews simply show that the best trial attorneys in the country have made the secret so automatic in their own personal routines that they sometimes neglect to mention why their routines have helped them be so successful.
The next time colleagues or friends are getting ready for trial, ask them how the other side is going to win their case. If they say they cannot imagine how the other side can win because their own theme is so persuasive, their own knowledge of the documents is so deep, or their own side’s attorneys are more talented, there is a good chance they have already lost. They just don’t know it yet.
[Note: This article was published by Law360 on October 20, 2016 and can be found at Trial Pros’ Secret to Courtroom Success.]