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November 01, 2019 Boot Camp, Esq.

Ask Allison

Allison Jackson Mathis

Dear Allison,

I am terrified. I am going to trial and I don’t want to. The case is high-stakes, and it’s one of my first times going to trial. I don’t want to do this. I am reevaluating my decision to be a lawyer and am plagued by nightmares about this upcoming trial. Please help me overcome my terrible nerves.

Yours,

Nervous Nelly

Dear and Beloved Nelly,

Have you ever heard of Tok Pisin? Tok Pisin is the gumbo of languages—a bit of this, a bit of that, held together with a broth of simple grammar and creating, at the end, something somehow greater than the sum of its parts. It arose in the South Pacific, when people from different islands were sent to work in Australia and needed to communicate. It has grown from an imitation of a language, from something desperate and difficult containing bits and pieces of English, Malay, Portugese, and anything else the diasporic islanders could fit into their mouths, into something that people are now learning as their mother tongue, and it is a recognized official language in that great and unique commonwealth, Papua, New Guinea. “Tok” comes from the English “talk” and “pisin” from the English term “pidgin”—as in “Pidgin English.” (Interestingly, the term “pidgin” itself comes from similar circumstances in a different part of the world—when Chinese businessmen were learning to communicate, haltingly, with Americans, Americans heard the word “business” heavily accented in Mandarin as sounding like “pidgin.” Really, the expression was meant to signify “Business English.” But, as usual, I digress.)

In 2012, Charles, the Prince of Wales, stood before a throng in Papua, New Guinea. He opened his mouth, and out came his scripted introduction, “Mi nambawan pikinini bilong misis kwin.” Directly translated, Charles said, “I am the number one child belonging to Mrs. Queen.” That’s Tok Pisin for “Prince Charles.” Similarly poetic is the translation for the instrument “accordion” in Tok Pisin, which is “liklik box you pull him he cry you push him he cry.”

That said, dear friend, I can only imagine that as the Prince of Wales, that lily-white, buttoned-up, puckered-up last-of-the-birthright rulers began reading over his prepared speech, realizing that he was about to have to describe himself as “nambawan pikinini” to the international press, he probably rethought his visit to Papua. But he put on his royal big-boy pants and did it anyway, and so will you.

Look, I sympathize. I do. Recently I was observing a mock opening statement exercise at a CLE. One of the participants, a very new lawyer, was doing just fine as she started out and then made too much eye contact with someone in the audience and lost her place. She struggled to get back to where she was and started getting frustrated when she couldn’t pull it up in her brain. I saw the moment, that horrible identifiable moment, when she just wanted to sit down. I flashed back to a hundred times in my own life when I had that exact same feeling. I’ve lost all idea of what I had planned on saying. My throat is dry, my voice is cracking, and I’m shaking visibly and talking too fast, even though I have no idea what I’m actually saying. I don’t care what happens as long as I can just. Sit. Down. Can I just say, “the end”? No one can stop me from stopping. If I could stop thinking about how I was going to cut this short, I would probably be able to figure out where I left off, but all my brain can do is short-circuit me out of this. I’m just going to do a little curtsey and say, ‘Fin!’ and then sit down, and it will be so confusing no one will even remember how much I garbled leading up to the end. Ok. On the count of three I’m going to curtsey. One . . . two . . . But three never comes, of course. I’ve never curtseyed before judge or jury (though perhaps it is on my bucket list). My tongue is a machete and I hack through the jungle of words in front of me, trying to find something of a straightforward path ahead.

In my humble and limited experience, dear one, there are ways to make this less terrible, and ways to make sure that, if you do end up in one of those frightening sit-down moments, you have a way out.

Realize that most people hate the idea of public speaking in front of a group of strangers. Jurors are most likely looking up at you wondering how on earth you are doing it. They are wondering if you are going to call on them to answer a question and panicking silently that you are going to ask them what their favorite amendment to the Constitution is, and trying to make sure they don’t pick a random one and it ends up being the prohibition one (“Two? Twelve? Is that the anti-slavery one or the soldiers-in-people’s houses one?”). They are looking at the defendant, and wondering what happened, and they are wondering if there is going to be DNA evidence in this criminal trespass case. They are not criticizing your every misstep because, largely, they don’t know when you are making one.

I think a mistake a lot of newer attorneys make is to panic and decide to script their entire trial. This makes you feel good going into trial because you think you have everything figured out—a complicated binder full of rainbow tabs and circumnavigations for every possible scenario. “If Witness 3 answers ‘Yes’ to question 35, turn to page 134, paragraph 7.” But pride, dear reader, cometh before the fall, and one is never really able to anticipate what will happen at a trial. More likely than flip to that perfect predicate or pithy next question, the new attorney is bathed in the spotlight of a silent courtroom while she desperately fumbles through reams of paper. Much like the rainbow-spotted-leopard Lisa Frank Trapper Keeper I once coveted, the overwrought trial notebook is overrated. Additionally, I think this is misguided preparation—it is not preparing a case for trial so much as making yourself a crutch so you don’t have to know your case very well, and when things start to go differently than you expected, you need to know your case.

Proper preparation for trial is crucial, beloved, and will do much for your standard of practice and for your nerves. I suggest to you that preparing consists of knowing your case well enough that you don’t need everything written down. This is analogous to speaking a language as opposed to memorizing a few key words and phrases. If you know the language, you don’t need to write out “Meum nomen est Allison” and read it like you have wooden underwear, and the difference in your comfort level is noticeable.

Though trial preparation can comprise many different things depending on the case, the jurisdiction, and your own individual style, I do live by one important rule: Figure out how you are going to get in and how you are going to get out. The great Roman orator and attorney Cicero spoke often about how nervous even he got at the beginning of speeches—“I turn pale at the outset of every speech and quake in every limb and all my soul,” he said. But it’s the outset that’s the worst—the first part where you’re too conscious of the people watching you and the strangeness and vanity that comprise public speaking, and once you get into it, you’re going to be ok. So knowing that you’re going to be ok if you can just get a good start, you should have an idea in mind of how you are going to begin each section of trial: voir dire, opening statement, each witness, closing argument. Practice it and script the beginning few sentences or questions if you need to. Figure out how you are going to get in with interesting, engaging words and concepts—how you will get started—then, a few bullet points of areas you want to make sure to cover during each segment of trial, boiled down to a few phrases or words.

Equally importantly, know the questions or area you want to end with—powerful and resonant, preferably. This is difficult especially when examining witnesses, but it is best to end your examination on a high note with a good question that will ring in the jury’s mind after you’ve finished. Most cases don’t have a Perry Mason moment, no Peter Falk gotcha is lurking somewhere in the testimony, but most witnesses do have strong points and weak points, and you can figure out a question that plays up this witness’s strength or weakness ahead of time.

As for the times when you are addressing the jury directly such as opening and closing, you want to have those last few sentences rehearsed so that you have a way to end it if you find yourself rambling or sinking. Have those lines down pretty well so you can summon them up if you need them. Though many times, in the heat of trial, I’ve changed my closing significantly from what I had initially planned to do, have something in your back pocket and it will make you feel a thousand times better.

The other thing I urge for you, darling and daring friend, is not to go to trial alone. Find someone to second-chair you come hell or high water. It is my devout and long-held belief that no one should go to trial on any case alone. If you are the World’s Most Experienced Lawyer trying a traffic ticket (yes, we have jury trials for traffic tickets in Texas), it still helps to have someone else sitting with you and telling you which potential jurors are giving you the stink eye and helping you come up with additional questions to ask a witness and just sharing the load. I understand that sometimes this rule is impossible to follow, especially in overburdened government offices, but do your best to find someone to sit with you.

Too often, we are frightened of our peers seeing our work and judging us. I do not know how to tell you to move past this, other than to tell you that you have to. Your darling Allison struggles with it, too, and too often. One’s ego is a terrible thing. But you are in the business of representing others—of representing the State or the Citizen Accused, friend, and as such you have to subordinate your pride to benefit the greater good.

And that’s the last thing I can give you, Gentle Reader. The advice that this is not about you anymore, or your ability to speak or perform. This is about your client, about the story you are telling. You are the vessel. You stand up and speak a language thick and strange and announce to the world that you are the nambawan pikinini bilong misis kwin. Or something like that.

In Solidarity,

Allison

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Allison Jackson Mathis

Allison Jackson Mathis is a public defendrix in Houston, Texas. She has held a variety of criminal defense jobs, including Chief Public Defender of the Republic of Palau, Tribal Advocate for the Swinomish Indian Tribal Community in LaConner, Washington, and even defended the public while living in a yurt outside of Aztec, New Mexico.