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Litigation Journal

Fall 2023: Game On

The Legal Process

Casey A. Dennis


  • “The Process” is about consistently giving your best effort and trusting that your dedication and hard work will lead to success.
  • At trial, “The Process” means sticking to your principles, and thinking about how the judge and jury will interpret your words.
  • Paying attention to the minor aspects of the game fosters unity and triumph within a team.
The Legal Process
krisanapong detraphiphat via Getty Images

Jump to:

There were 25 seconds left on the clock. We held a three-point lead. We weren’t favored. We weren’t even expected to be there. But a basketball state title was at stake, and my team—from a high school in a small town in the north-central part of New Jersey—had made it so far with the support of each other, our classmates, and our community. We were going to leave everything we had on the court.

Twenty seconds left. My twin brother is closely guarding the opposing team’s top player, who has the ball. The referee blows the whistle. A five-second violation! Our ball.

We inbound it. Twelve seconds left. We shoot two layups. Both attempts miss. They grab the defensive rebound and get the ball back in their top player’s hands. Seven seconds left. Five. Four. Three. Two. One. He shoots at the buzzer.

It goes off the back of the rim.

We did it.

Every now and then, I think back to what made our team successful that year. We were not the biggest team, the tallest team, or even the most talented. But were very close friends, the 11 of us, and we trusted each other completely. We also spent a significant amount of time together—both on and off the court. When we were at practice, we focused on doing the “small things” right—playing tough defense, setting strong screens, making accurate passes, boxing out, and running our plays efficiently until we found the open man. Those techniques were important for executing in key game-time situations that mattered the most. Setting good screens would open up spaces for our best shooters to take shots or for our best playmakers to make plays. Boxing out prevented the opposing team from grabbing rebounds late in games. As we progressed through the year, we started to believe that if we played the game hard and right minute by minute, and stuck to the fundamentals we practiced every day, we could compete with any team. We ended that season 26–4.

Focus on the Little Things

Paying attention to the minor aspects of the game fosters unity and triumph within a team, in addition to enhancing personal performance. Consider Gene Hackman’s basketball team in Hoosiers or Denzel Washington’s football team in Remember the Titans: When each player concentrates on mastering the game’s basic principles, the team plays with greater harmony and efficiency, resulting in superior (and memorable) outcomes. John Wooden—the legendary basketball coach who guided the UCLA Bruins to an unmatched 10 titles in National Collegiate Athletic Association (NCAA) basketball in 12 years—understood that: “It’s the little details that are vital. Little things make big things happen.”

But he’s not the only one. Nick Saban, the love ’em or hate ’em head coach of the University of Alabama’s football team who has led his squads to a record-setting seven NCAA top-division football national championships, tells his players, “Don’t look at the scoreboard. Look at the play. Be where your feet are.” Saban teaches that, by honing the fundamentals, players can significantly influence the game and bolster their team’s accomplishments.

Saban calls his approach “The Process.” At its core, “The Process” emphasizes focusing on the present moment and mastering the steps required to achieve a task or goal. Rather than dwelling on the outcome, Saban encourages his players to trust that the results will come if they consistently execute their roles to the best of their abilities. This approach fosters discipline, accountability, and growth. Saban stresses that countless individual plays and decisions made throughout the course of a game determine who wins and who loses.

My basketball career ended after high school, but my first few years as a lawyer have taught me that the lessons I learned on the court and from Saban’s coaching philosophy help guide my practice today. I am a mid-level associate at a big firm in New York. Before that, I clerked for a district court judge and an appellate judge. These clerkships taught me many of litigation’s fundamentals, like the importance of preparing for cases and mastering the law and facts as an advocate. The fast-paced nature of my district court clerkship instilled a level of discipline that I think is critical in my daily practice today. The job required staying organized and focused. To be thorough while being productive under time pressure. Today, those skills are incredibly useful in managing new developments in multiple complex cases, each with many moving parts at any given time. My experience clerking on the court of appeals made me write more and research more, while introducing me to many areas of substantive law and legal doctrines. The clerkship trained me to get in the habit of learning the factual ins and outs of every case, in addition to the law.

In my first few years of practice, I have had the chance to work on an array of complicated cases—criminal and civil investigations, arbitrations, mass torts cases, securities class actions, shareholder derivative suits, and other things too. Many of the cases I work on last for several years. Some began before I joined my firm, while others started after I joined but will likely go on for years to come. As litigators, we often find ourselves managing multiple, complex, high-stakes cases that demand our utmost attention and expertise. It’s easy to be intimidated and fixate on the ultimate goal—securing victory in the courtroom.

Everyone wants to win, but focusing first on the incremental steps and the foundational building blocks is what makes that possible. So I try to concentrate on the present—focusing on each task and applying my full attention to it, rather than obsessing over an idealized future or worrying about what might happen tomorrow, next week, or next year.

I find this outlook helpful because, in litigation, each task, no matter how small, can have a significant impact on the outcome of a case. The ability to concentrate on the most pressing issues before us—issues that can be case-changing—ensures that we thoroughly examine each aspect of the case and that we overlook no detail. In the end, it is the small windows of time—the hours upon hours of research—and the minute attention to detail in carefully crafting arguments that will ultimately sway the judge or jury in our favor. Like Saban, who urges his players to focus on finishing individual plays rather than worrying about the score, we can have more confidence knowing that by doing the absolutely smallest things well, our individual efforts will contribute meaningfully to the big picture. Michael Jordan once put it this way: “The minute you get away from fundamentals—whether it’s proper technique, work ethic, or mental preparation—the bottom can fall out of your game, your schoolwork, your job, whatever you’re doing.”

By highlighting the relevance and applicability of Saban’s philosophy to litigating, I do not mean that big-picture strategy or goals are not important. Of course they are. Many litigators like to define their goals and objectives at the beginning of (and throughout) the case, including the ideal outcome, whether it is winning or reaching settlement, as well as how the case will be resolved (through negotiation, mediation, or trial). Many also consider the budget and costs that will be associated with achieving that outcome, in addition to the timeline for gathering evidence and preparing for trial. Good litigators want to understand the strength of the evidence for and against their client, including documentation, witness statements, and expert opinions. We are also keen on understanding our adversaries and their goals and objectives, their strengths and weaknesses, and the potential strategies that they might use. And, of course, we try to understand the jurisdiction where we are litigating, the judge before us, and the various laws and procedures that apply to our case.

Staying Grounded

It’s the short-term, day-to-day aspects that will push your team closer and closer to achieving your overall goal. By breaking the case down into smaller, more manageable tasks, you can stay grounded, maintain a sense of perspective, and avoid getting lost and bogged down in the complexity and pressure of the case. Like Saban’s “Process,” this approach helps you be more attuned to the needs of your client and the specific circumstances that come up in your case. It helps you make better decisions and adjust your strategy to achieve your desired outcome, and it makes sure you stay flexible. As firm as you may feel about a strategy, it’s important to remember that the law is not static, and neither are your clients or the people involved in their lives. You may have a feeling for how things will play out, but it is possible that something unexpected could force a change of course. Being open to change can help you adapt and keep going even when things seem to be falling apart around you. Indeed, focusing on the present moment actually can help you build confidence after small wins and successes and can help you maintain a positive attitude. “The Process” makes sure you maintain momentum and make consistent incremental progress toward your eventual goal.

Consider the benefits of applying “The Process” and focusing on the fundamentals right from the start of a case. Paying attention to the minor details right off the bat helps to lay a strong foundation for the case’s lifespan. For example, doing the little things—carrying out extensive and resourceful research and gathering all relevant documents and evidence—creates a robust base for your team as the case progresses. By conducting research and collecting the evidence right from the start, you can avoid unnecessary discovery disputes and eliminate the need for extra rounds of discovery, which can save both time and money in the long run. Taking time to review that evidence early on can help uncover important details that could be crucial to the case, like something exculpatory for your client. It could even form the basis for getting rid of the case before it starts. Staying in the present and being thorough in your research can help you make pleadings and motions on all potential procedural points. Further, the factual and legal analysis you do early on can assist in detecting potential problems that may arise later in the case. This could involve recognizing weak points in your case or anticipating potential defenses from the opposing party. By addressing these concerns early, you can develop strategies to overcome them and strengthen your case.

“The Process” can also help bolster your case as new facts and legal arguments emerge. No fact is too small to use to your advantage. When you perform fundamental tasks such as reviewing deposition transcripts, analyzing financial records, or investigating a witness’s background, you may find little pieces of evidence that can help your team build an even stronger case. The “little things” you find while applying the fundamentals could be used down the road to attack a witness’s credibility or provide integral support for a dispositive motion.

A return to the fundamentals can also be beneficial when dealing with witnesses. For our own witnesses, we of course want to prepare them for the types of questions they may face in a deposition or at trial. But arguably as important, we want to make sure they stick to very core and sometimes subtle principles, such as being coherent and succinct in answering questions—as their testimony might one day be played before a jury. An “in the moment” approach in taking the testimony of a witness, for instance, at a deposition also has it benefits. Of course, many litigators will have an outline to guide their questioning and a strategy or a list of testimony they want to elicit. But at the fundamental level, basic skills such as being premeditated, listening before asking questions, and thinking everything out will help them adapt in the moment based on how the witness is responding and allow them to tailor their questions to get to the testimony they are trying to extract.

“The Process” can be carried into the courtroom as well. At oral argument, it means practicing and mooting beforehand; speaking with formality, precision, and confidence even during times of tough questioning; and maintaining control because you know the facts better than anyone else in the courtroom does. At trial, it means sticking to your principles; for instance, never asking a question on cross-examination to which you do not know the answer. It also means thinking about how the judge and jury will interpret your words.

Concentrating on these short-term moments ensures we are making the most effective use of our time, especially given the many factors that can change the direction of a case, many of which are out of our control. Consider the impact that the discovery of new evidence, a change in a key witness’s testimony, changes in legal precedents or in the law, or the retirement of the presiding judge may have on your case. To navigate these changes, it is helpful to employ a flexible and adaptable approach, like “The Process,” that can help you adjust your strategy as needed.

“The Process” is not about chasing a specific outcome or verdict. It is about consistently giving your best effort, day in and day out, and trusting that your dedication and hard work will lead to success. To paraphrase another great football coach (“Red Sanders), winning isn’t the only thing; it’s everything.