The first few years of practicing law can sometimes seem daunting and overwhelming. New lawyers are expected to dive into a world of professional practice with (sometimes) minimal background or experience. While learning to perform the work and understand the specific tenets of their practice, lawyers also crave the opportunity to demonstrate practical skills in the courtroom.
Rarely will you, as a new lawyer, be afforded the opportunity to serve as lead trial counsel for a specific case. Still, more senior lawyers can often find ways to involve you so that you receive the foundational training necessary to litigate at a high level. These experiences are crucial for your early development, affording you the foundational exposure necessary to learn about trial practice. Even the less burdensome tasks involved with trial practice will offer you opportunities to build your trial skills, including:
These tasks will help you understand the complexities and foundations of trial practice (while also benefiting the trial team). They will also allow you to understand the strategy involved with trying a specific case within your practice area.
These tasks also help build your confidence. Skilled trial practice does not develop overnight. It takes time. Even the most skilled trial lawyers continue to improve their craft and utilize new trial strategies for each case. Having the confidence to understand the overall trial strategy, argue a pretrial motion, or draft the pretrial filings may not seem like much to the average lawyer. However, this confidence allows you to think deeper into the case, be creative, and learn new ways to improve your advocacy. The old saying “any experience is good experience” is most certainly true (especially in litigation).
You may feel out of place when discussions arise regarding a case going to trial because you do not have the benefit of background knowledge built up through investigation and discovery. But if you do not speak up to be proactively involved in trial preparation, you will leave valuable opportunities behind.
An easy first step is to become intimately familiar with the deadlines set by the court in the trial order. Each judge manages a trial in their own way, and that is often reflected in the deadlines and requirements they include for pretrial submissions. Reviewing other trial orders issued by your trial judge or other orders issued in the same jurisdiction by other judges will provide an increased understanding of the nuances of your particular order. If you can become the expert in the trial order, you will become a valuable resource for your more senior colleagues as they prepare.
After you master the trial order, choose one of the pretrial submissions to make your own. Speak up and tell your colleagues you would like to tackle the motions in limine or the proposed jury instructions. These tasks will help you better understand issues that may arise during discovery concerning the admissibility of a certain type of evidence, what exactly makes an expert qualified to provide their opinion, the aspects of your claim or legal issue that are truly indispensable, and how to communicate a claim or issue to a nonlegal audience.
Ask if you can help put together the witness or exhibit lists. Whittling down a case file into a manageable trial notebook is a very effective way to become an expert in a case, which will prove valuable to your time-strapped colleagues.
Litigation is an adversarial process by nature. Between representing opposing parties and taking opposing positions, the adversarial nature of this practice can sometimes overcome the parties involved and take away from the true issues of the case. This is why civility, especially between counsel, is important. Despite the arguments and position of counsel, the parties must often work together to achieve common goals throughout the trial process—stipulating to joint exhibits, scheduling witnesses, working around the court’s schedule, or even using common technology and tools in the courtroom.
When emotions and argumentative tendencies plague the litigation, the attorneys are often prevented from working toward these common goals, to the frustration of the court or to disservice to the clients. A judge should never be expected to serve as a referee between counsel in the courtroom to make sure disputes are fair and reach a reasonable resolution. Whenever possible, the lawyers themselves have a duty—to the court and their clients—to act professionally and civilly in all phases of a trial.
Adversarial civility can be one of the most important soft skills you must learn, but it can be one of the hardest to experience. There is no better environment to get a crash course in civilized adversarial advocacy than during a trial. The presence of a judge may help to keep attorneys on their best behavior—or it might not. The presence of clients in the courtroom, perhaps watching their attorneys work for an extended period for the first time, might raise the stakes for the attorneys standing up to speak. Watching how experienced attorneys handle this charged atmosphere at the most important phase of the case while maintaining their professional civility—or not—is one of the only ways to learn how to do it yourself. Or, you might learn what not to do. The only way to know for sure is to be in the room while it happens.
