GPSolo Magazine - Oct/Nov 2003

Rites and Rituals:
How Lawyers Really Prepare for a Trial

For many of us, the first morning of trial is the focal point of our profession. We enter the courthouse with a trial bag filled with exhibits, motions, and research. We've put months, maybe years, into learning the facts, briefing the law, deposing the other side's witnesses, and preparing our own side's testimony and arguments. For most trial lawyers, though, preparing a case goes beyond preparing the courtroom presentation. How do we prepare ourselves to perform at the peak of our craft?

Clothes Make the Lawyer

Forget all the research and lore about how dark suits and red ties impress juries. We want our trial clothes to help us feel good about ourselves and our case. I'm partial to ties with pictures of palm trees. I think they help remind me that there's a world outside the courtroom. I never wear belts with large buckles, a practice learned from too many passes of "the wand" at the courthouse security checkpoint.

Fernanda Rosales, a middle-aged lawyer in New Mexico, insists on wearing red to trial. "Usually a red dress, or at the very least, red Ferragamos." She points out that clothes should never be a distraction during trial. Dresses with pockets are good, pantyhose that roll or clothes that bind are not.

Vicki Levy, a small firm practitioner in Lake Mary, Florida, always carries extra pantyhose to court, after having once begged a judge for a recess when she found a pantyhose run disrupted her train of thought. "The next time I appeared before that judge, he asked from the bench 'does everyone have their pantyhose?'" Though few of us want to interrupt a trial for a change of clothes, we can prepare by choosing clothes that help us feel confident, rather than distract our attention from the case.

It's in the Bag

From the opening gavel until the verdict, our life revolves around the contents of a briefcase or trial bag. For larger cases, I like the heft of a salesman's catalog case. A few years ago manufacturers added wheels and a telescoping handle to the basic design. If I ever meet the genius responsible for the wheeled bag, I will buy him lunch—my left arm no longer hangs two inches lower than my right from the weight of trial briefcases.

Inside the bag is everything I ever expect to need for the next several days. At least four pens—I can count on one running out of ink, one getting lost under exhibits, and one being permanently borrowed by a client or witness. Many of us pack food. I have heard from lawyers whose bag includes raisins, antacids, breath mints, and bottled water. I've found that a packet or two of peanut butter crackers in the trial bag can have many uses. In an urban area, they can be given to panhandlers instead of cash. They can quiet a grumbling stomach when court runs late into the dinner hour. And I believe, though I haven't tried it, that fresh crackers can be traded for the raisins in opposing counsel's bag.

According to Levy, a well-organized briefcase can serve as a portable office during long calendar calls and trial delays:

I keep in my briefcase folders labeled with support staff names, legal research, and the like, into which I can sort the previous day's incoming mail. I also check in with the office by cell phone during breaks and try to return as many calls throughout the day as I can. Then, at night, I check the e-mails that my staff has sent me during the day; these are sifted into a folder e-mailed to my home so I can make changes to motions.

If the trial goes poorly, we can always quit the law and open an office-supply store with the contents of our briefcases. In addition to the ubiquitous sticky notes, I insist on a miniature stapler in my bag for last-minute exhibit preparation. I've spoken to lawyers whose bag includes tissues (sometimes a whole box), paper clips, and a cell phone (courthouse security permitting). I know one lawyer who carries not one but two cell phones. I understand completely-redundancy is the key to peace of mind in trial practice.

There's nothing in my briefcase that sets my mind at ease more than a proper set of exhibits. Some lawyers swear by three-ring binders, but I prefer my exhibits index-tabbed on the side, clipped at the top with a spring clip, and listed on the front. Whenever possible I assemble the exhibits with my own hands. Not only does this reassure me that there will be no missing documents or pages for a witness or judge to find, but the manual labor of sorting and clipping documents has a calming effect. Binding exhibits in proper order makes me feel as though my case is manageable, as if I can hold the case in my hands.

The Body of Law

Nothing can be more distracting at trial than physical discomfort. It's therefore important to prepare the body, as well as the mind, for long days of intense focus and long hours of sitting on uncomfortable benches and chairs. When I lived in downtown Baltimore I would take a brisk bicycle ride around the Inner Harbor on trial mornings, which would allow me to stay loose for the rest of the day. These days my practice usually involves long drives or plane rides with no room to pack a bicycle. Instead I rely on isometric exercises. Pressing the back of my head into my hands during a courtroom break is a quick, effective way to release neck and shoulder tension.

Many lawyers include physical activity as part of their trial ritual. Sculpting, cooking, and gardening are ways different lawyers clear their minds. Fernanda Rosales writes,

Sometimes I've found that simply getting away from the file, doing something that has absolutely nothing to do with the case, gives me more thinking time about the case, almost in a meditative way. I'm not exactly a creative-with-my-hands person, but even a relatively mindless task like pruning the roses can help clear the mind and put things in perspective, more so than spending the same amount of time re-reviewing the file.

Don Taylor, a solo practitioner in New York, says,

A hundred years ago, they did morning calisthenics at NCR, and some years later at "the IBM" they sang songs praising IBM and its chairman. Maybe there's something to all that. Maybe we should do exercises, songs, cheers, prayers, chants, kung fu, war dances, whatever gets the blood rushing and the mind focused and brings the will to win to the forefront at the start of the day and then again after coffee break and lunch—and see if it improves performance.

KEEPING THE OFFICE GOING

Sometimes a solo or small practice seems like a circus act. The trial lawyer is often also the human resources department, accounts payable, payroll, and CEO. She ordinarily has a number of active cases other than the case being tried. How does she keep the plates spinning when a trial takes her away from the office and places her focus in the courtroom? Here are a few suggestions gleaned from Solosez, the listserve sponsored by the American Bar Association Standing Committee on Solo and Small Firm Practitioners.

Communicate. Let the world know that you're in trial and won't be available to deal with routine matters until afterward. This can be done with an outgoing voice-mail message, instructions to staff, even a sign on the office door. Key clients can be advised before the trial of your anticipated absence. Most will be understanding—after all, they'll want the same focus and undivided attention to their own case when the time comes. Use e-mail. Clients and staff should be encouraged to put everything that needs the lawyer's attention in an e-mail. You can respond late at night or during breaks in a multi-day case.

Organize. Incoming e-mails, faxes, and letters can be divided into "now," "later," and "trash." The "now" pile will be the smallest—most matters truly can wait for a few days. Some lawyers with busy courthouse practices carry a briefcase full of incoming work and a pad of sticky notes to court. When waiting for their matter to be called they can mark up correspondence and pleadings and make notes to staff or themselves on the sticky pads, instead of defacing the letter or pleading.

Have a backup. Most solo practitioners named a backup attorney when they took out their first malpractice policy. Contact the backup attorney, explain the situation, and ask permission to send truly urgent matters his way. He'll probably never actually hear from you and your clients, but your peace of mind will increase.

Relax. Your clients and staff get through the average non-trial day with very little of your input and attention. They'll still be there after you get back to the office and unload the briefcase. Consider having your outgoing voice-mail say you won't be available until the Monday after trial. A couple days of decompression will leave you able to approach the tasks you put in the "later" pile with a clear mind.

The author thanks Mary L.C. Daniel and Vicki Levy of the Solosez listserve for their thoughts on keeping the office going.

A Trying Spirit

For many lawyers, spiritual preparation for trial is as important as being physically and mentally prepared. I learned long ago that one of the best ways to use a long drive to the courthouse is to turn off the car radio and, with deep breathing and meditative thought, quiet the cross-examining voice in my head.

Lawyers whose religious practice includes prayer find it to be an important part of trial preparation. Karla Vogel, a Georgia solo, writes, "Praying prior to trial makes me a better advocate in the courtroom. Prayer prepares me mentally, emotionally, and spiritually by giving me confidence to do the best that I can, clarity of expression with which to do it, and peace of a job well done, regardless of the outcome of the case."

Marion Chase Pacheco, a small firm practitioner in Syracuse, New York, says "I pray for guidance, to use my talents wisely, to know the right questions, and when to ask them; to be alert to make the objections that I need to make; to have clarity of mind and organization; that my client be calm and remember the things we went over; that the judge be at his best, and the jurors be fair of mind. But most of all, I thank God for the peace of mind He gives me when some problem is beyond my knowledge and control." She also points out "there is no prayer in the world that can make up for lack of preparation."

Sing and Dance

Even if it's not a capital murder case, a trial is serious business. If it weren't important, our clients wouldn't have placed their affairs in our hands, and we wouldn't have spent weeks or months developing and preparing a case. It may be paradoxical, but trial practice is too important to take ourselves too seriously. Many successful lawyers make it a point to "lighten up" as a trial approaches.

I often save a key piece of substantive preparation until the last minute. The morning of trial may find me rehearsing an opening statement or a key legal argument. Then—and be assured that you will never see this in a courthouse or other public place—I do a few steps of a Michael Jackson moonwalk. I'm a lousy dancer, but that's not the point. It breaks the tension and puts me in a lighthearted frame of mind. Confesses Fernanda Rosales,

As I was getting ready to leave the office for a trial about 80 miles away, I found myself singing some kind of fight song. Off-key, of course. Something like, "We're going to win today, we're going to win." And because it was early, like 7:15 A.M., I thought I was all alone in the office . . . until my law clerk walked in. And I felt like a complete fool. Until a few years later when I learned that another law firm not only sang songs, they even wrote ditties about their, uh, memorable clients. Even when the client was destined to lose.

Like most of life, a trial is too important not to enjoy. Sing. Dance. Laugh. You and your client will appreciate the result more.

Relax

As a young man I was an amateur actor in school and community plays. I was taught that one of the best means of overcoming stage fright is to relax. Closing my eyes, I can relax each muscle and joint, slowly, deliberately, from the top of my head to my toes. Though they don't teach relaxation in law school, classes in it abound, from local yoga classes to the "Acting for Lawyers" workshops offered by many bar associations. A relaxed lawyer is an effective lawyer.

There's no better feeling in the practice of law than being completely ready for trial-knowing my case cold, being energized yet relaxed. And having a fresh pack of peanut butter crackers in my briefcase. Even if my opposing counsel is sneaky, the jury is biased, and the judge is unfair-at least I won't go hungry.

Wendell Finner has a solo practice near the ocean in Jacksonville Beach, Florida.

 

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