7 Essential Steps To Successful Trial Advocacy
Most trial lawyers want to be the best we can be. The goal takes a lifetime of dedication to the craft. Here are my thoughts on how to be your best:
- Preparation. The first essential step for every aspect of oral advocacy is preparation. No successful advocate can make his or her case without it. But preparation does not mean closing yourself off to all common sense in the world around you. Preparation means studying the case, the facts, and the issues to the point where you know them better than the Court, your witness, your opposition. It also means having a well-developed game plan for all parts of the argument or trial. But don’t lose sight of the forest for the trees. Knowing the details is critical, but being able to step back and keep perspective is just as important.
- See the big picture and stay loose. Flexibility during trial is as important as being well prepared. Having a well conceived plan of action, as stated above, is the essential first step. But maintaining flexibility is equally important. I believe these are the “yin and yang” of successful trial advocacy. Sure, planning and mapping ahead of time are important. But no one can plan for every contingency. You have to be able to “think on your feet.” Indeed, this is where the greatest arguments and greatest cross-examinations emerge. Stay balanced, keep your eye on the big picture, rely on your instincts for people and situations, and respond appropriately to the situation around you. This is where the creative side of trial work comes in. Great trial lawyers have and use great instincts for people and situations. They are willing and able to go off script and adapt to the moment.
- Use and practice natural speech. Speak naturally. Use words to convey the substance of your point. Stay away from the “audible pause.” Don’t say “um” in between your thoughts. Trust the silence between your words, and let your thoughts and your words flow from you. Gain command of your presence. Show your confidence. Be at ease when you talk. This is not a performance. It is a connection between you and your audience. [People will tell you “nice job” or “nice performance.” But do not fall into the trap of viewing it that way. View it as a time to connect with your audience and the outcome will be a job well done, but only if you first view the argument as something other than a job or a performance. Make it real!] When I was a young lawyer just starting out, I recall practicing my arguments in front of my wife. All of a sudden I would take on a voice and cadence that sounded dramatically different from the voice I used in day-to-day life. She used to make fun of it, calling it “The Voice.” “Who is that talking?” she would tease me. Over time, I learned to relax, be myself, and speak in my own voice (see item 7, below).
- Never use words to prove you are intelligent or well educated. For one, you will sound like a show off and distance yourself from your audience. Second, you will detract from the argument, and that is a cardinal sin as your entire reason for being is to put forth a persuasive argument. Here, you need to be like the greatest picture window. What matters is the image on the other side, not the details of the frame or the glass. Help the audience (judge or jury) see the points you are making. Do less to gain focus on yourself; more to gain focus on your argument and the justice of your cause. And don’t think your oration needs to be perfect or presidential. You are not giving the Gettysburg Address. If your words are off, if you fumble, if the commas are not in the perfect place, don’t worry. People who speak truthfully speak from the heart and the audience senses that, even if the oratory is flawed. Speak from your heart and the audience will fix your grammatical errors for you!
- Gain courage through understanding your audience, listening to them, and trusting them. Great advocacy requires knowing your audience. Get into their hides. Empathize and know what makes them tick in order to help them empathize with your client, your argument, your case. Successful advocacy usually involves convincing people of things they already believe. Outright conversions are rare. But persuasion without trust is also rare. You have to trust your audience before you can speak truthfully to them. Trust your judge and jury to hear you and to receive your argument or else you have little to no chance of successful persuasion. And be brave. Losing can be a crushing personal defeat. Know that. Accept it. Embrace it. Confront the fear of personal rejection associated with losing at trial.
- Know and develop a strong skill set for cross-examination. This is the most critical tool for any trial lawyer. Cross-examination is the part of trial that separates the great trial lawyers from all the rest. Many books have been written on this topic, and there are seminars all over the country. Of course, there is no substitute for actually performing a cross examination in trial. The basic rules are keep each question simple; build your questions, using one fact at a time, to a larger point, perhaps a “chapter” of your case; use leading questions, but don’t be afraid of the witness who refuses to answer with “yes” or “no;” listen to the answers and work them into your questions; don’t let the witness stray from the laser like focus you should be seeking; stay in control of your thoughts and emotions; know your case and the immutable facts surrounding it; force the witness to confront the immutable facts; get admissions from the witness, using the immutable facts of your case, that build your case; where possible, defeat the witness’ credibility; always use facts, not argument, to make your points with the witness. Devote yourself to a lifetime of study, practice, and improvement in this area.
- Develop the courage to know yourself and to grow as a person. Successful trial advocates are successful human beings. They recognize how exposed they are in open court once they recognize that they are involved in a deeply human communication connection with their audience. They learn to overcome their fear of making themselves utterly vulnerable to the decision maker they seek to persuade. They know that to be a great trial lawyer requires the courage to confront the truth about themselves. They cannot have great people skills, great instincts for people and situations, the ability to keep account of the big picture, the ability to get in the hides of their clients and their audience, the ability to control their own emotions, and the patience and faith in the process of revealing the truth unless they have a keen understanding of themselves and their relationship, as human beings, to the world around them. Being a great advocate is more than mechanics, it is a journey into yourself, your identity, and the human condition. Devote yourself to that journey!