It’s Day One of your first trial. Discovery is finally over and now it’s time to put on evidence in front of your jury.
Now, grab your Jimmy John’s trial sandwich, a legal pad, and a pen.
After covering trials for twelve years across several states as a technician, I have some general observations that may come in handy in your journey toward figuring out if the life of a trial attorney is right for you, or at least some thoughts on what might help you survive the next few weeks of your life.
Silence is golden. As a general rule, have your personal internal default settings flipped to “as mute as possible” until the verdict is read back. It is very tempting to chat (with colleagues, clerks, runners, or a friend on the phone). But DO NOT talk about the case around or in the courthouse, including in bathrooms, elevators, or even in parking lots. Jurors’ eyes and ears are literally everywhere.
In addition to the jurors, I promise you it will be best to also visibly mind your business when it comes to opposing counsel. Don’t speak with opposing counsel without permission from your lead counsel. Opposing counsel smells new blood and will attempt to ask you for information or imply that they have an agreement or have spoken with your boss (when that may or may not be true).
When approached, BE FIRM, BUT RESPECTFULLY DECLINE TO GIVE THIS INFORMATION. It may seem innocuous to you when they ask you “Which live witness is up on Thursday morning,” but your lead counsel has a well-thought-out strategy and never assume to know what is and isn’t ok to share.
Opposing counsel and staff are not your friends, and they will throw you under the bus faster than you can imagine when your lead counsel or the judge arrives on the scene. I have seen this happen more times than you can imagine. It isn’t pretty.
Do, however, establish relationships with the court personnel and show them high levels of respect. You are a guest in their home. And under no circumstances, make assumptions about what you can and cannot do without the host’s permission. And do not waste their time.
2. LISTEN UP!
Chances are that your lead counsel is established in his/her specific law practice. And no matter how many years out of law school you are or the number of mock trials you have participated in, the amount of trial experience that your lead counsel possesses greatly outweighs the number of hours you have invested thus far in your career. Trials are diminishing, and unfortunately, your opportunities to “go to trial” are simply not as likely.
With that said, your early trials are more important than ever to take seriously. Listen intently to the advice and leadership of those who have been through this before. It will benefit no one if you don’t have the tools you need to succeed. Take notes, keep track of exhibits, review the court reporter’s daily copy. These tasks will help you weeks from now when it is time to get closing arguments together so that you can give some cohesive and constructive opinions on what testimony was impactful.
3. PRACTICE, PRACTICE, PRACTICE.
If you are getting a chance for your debut speaking role in a jury trial (generally the first speaking role is in reading a non-videotaped deposition into the record), practice as much as possible before your big day. I cannot tell you how many late nights I have spent helping new attorneys practice reading in a deposition to make sure they are fully confident in pronunciations and in the skill of reading slowly when nervous. And time it. You can let the lead counsel know that the read-in will take approximately 30 minutes, and they will appreciate how precise this is so they can not only let the judge know, but also plan to fill in other witnesses for that morning/afternoon.
If you are lucky enough to put a live witness on the stand, practice procedures according to the judge’s preference. Audibly ask to approach the witness, ask permission to show the witness a document, drop the document down, ask for permission to publish it, ask the trial tech to bring the exhibit up for the jury using the Bates numbers the tech has provided you with.
4. YOUR BODY IS A TEMPLE.
As a first-timer, there are a host of things your fresh and unjaded perspective brings to a case. “Inexperienced” lawyers bring energy. But with that energy comes a cost. Learning how to properly conserve that energy and to be able to save it for late nights and early mornings is something that comes with time/practice. This is a marathon.
Eat snacks, hydrate constantly, and do not over caffeinate. I have brought food to new attorneys in our war rooms as late as 11 at night when they’ve forgotten to eat that day or have been nervous with all of the tasks and pressure.
Running on fumes doesn’t help anyone. And it’s not a matter of if, but when you will end up sick.
If you have trouble sleeping, try a meditation app like Insight Timer. I can’t recommend this enough.
5. WHAT DOES THE YELLOW LIGHT MEAN?
It’s a sign of leadership, not weakness to be able to dole out tasks and triage what is pressing right now and what can wait until later in the day to tackle. An attorney very early in my career taught me the phrase, “What does the yellow light mean?” When everything starts to swirl around in your head, ask yourself this question. The answer of course, is to “slow down.”
In slowing down, taking a time-out, you can manage what needs to be handled right this second and what can be taken care of at a break.
In conclusion, after a few weeks of trial, you may realize that trial work /litigation may not be a good fit for you. And that is perfectly ok. It is a rare breed of people that enjoy and thrive in the constant chaos and adrenaline rush.
But give it a chance. It should be fun and exciting if this is ultimately what you want to do for your career and you may discover that you are an attorney that is born for this.
And hopefully these recommendations will ease some of the tension that packs a suitcase and comes along for the ride to trial.
ABOUT THE AUTHOR:
Katie Coulter is a Certified Trial Technician and an owner of Power Presentations, LLC, based in Louisville, KY. Katie works directly with attorneys and paralegals to provide presentation and technology services for depositions, mediations, and trial support.