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October 20, 2014

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What Was Wrong with My Trial Game

by WSBA
Business man holding ball in his back
New lawyers pull from personal experiences in making rookie mistakes to share their biggest early season lessons on practicing law.

Great lessons are learned in the field. But how do you prepare for the game when you don’t even know the plays? It can be helpful to learn from the mistakes of others, but it can be quite a challenge to find someone willing to share their mistakes.

Recently, several new lawyers agreed to share their biggest lessons learned. Learn from them and you’ll be slightly ahead of the curve.

  1. My trial notebook was disorganized. I once believed that I had to challenge each and every issue at trial. With this belief, I lugged multiple binders, pads and books into court. I might have looked organized at the start of a trial, but once we got underway, my desk would quickly descend into chaos. I needed to learn how to best organize my trial notebook in the most effective and productive way for trial.
  2. I didn’t practice enough. You can never have too much practice with the “exhibit dance” — how and when to object to certain pieces of evidence coming.
  3. I took too long to clearly state my argument. My crosses, in particular, would get bogged down trying to “core” messages. These messages should have been reinforced through repetition in argument but were displaced with less relevant details. I needed help to focus on seeing the case from the jury’s perspective. Good delivery is simple, eliminates distractions, and focuses your eye and attention on the core message.
  4. I didn’t walk the jury through the story. My inclination was to try to solve the problem for the jury and then explain how I got there. I figured [the jury] would appreciate that I had done all the work for them, so that their decision would be easy. However, the jury wants to have the experience of solving the issue with you. This can be a very useful tip during cross-examination. You don’t have to ask that final “gotcha” question when you’ve found a clear hole in a witness’ story. You can take the jury through every question leading up to it, and then you leave it hanging, so the jury gets there on its own and the witness doesn’t get a chance to confuse your point. For example:

    Q: Can you see without your glasses?
    A: No.
    Q: Were you wearing your glasses that day?
    A: No.

    Stop there and don’t ask, “Then how could you see X?”

  5. I thought I knew the most important part of the trial. The closing argument is all that really matters, right? Every piece of a trial is the most important piece, depending on the lawyer you ask. Nothing is so unimportant that you can afford to do it poorly — but nothing is so important that you have to do it perfectly (which is lucky, because you can’t).
  6. There is a right way to litigate a trial. There is no right way to conduct a trial and there is no right way to be a lawyer.  You have to be true to who you are, and while there are all kinds of skills and tricks of the trade you can learn, a trial is about being a person who tells a story to a group of other people. You have to figure out how you do that — that’s something no one can teach you. It comes with practice.

What valuable lessons have you learned? 

The WSBA Annual Trial Advocacy Program offers a two-day trial skills training from seasoned trial lawyers on Oct. 24–25, 2014, at the WSBA Conference Center. An optional one-day mock trial follows two weeks later on Nov. 8 at the Seattle Justice Center. This seminar is geared toward attorneys working in either the criminal or civil arena, with little to no trial experience, but a strong desire to become trial lawyers. Learn more and register.

Thanks to past TAP participants Tor Jermudd, Julie Watts and Ada Wong for sharing their feedback, and current TAP Steering Committee Members Cara Christensen and Raam Wong, who compiled their comments.

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