Podcast - This Extraordinary Process Called "Trials"

Dan Small: Trial is an ancient word, apparently with origins in the French triet: to try or to test. Like any significant test, it requires hard work, study and experience to learn it. A lawyer can learn how to try cases in many ways, such as reading books on the subject, observing others in action, seeking advice from experienced trial lawyers practicing outside the courtroom and even by conducting trials as an arbitrator or a judge or some other way. 

Let's start with two general thoughts about the never-ending process of learning how to try cases. First, there is no monolithic, one-size-fits-all method of trying a case. It can vary widely based on the lawyer, their personality, their style, their experience, the case, the type of case, the length, the merits, the judge, judges, jurisdictions — areas of the country vary widely — and lots of other factors. You have to adapt and be adaptable. At the same time, many of the basics remain the same. While you certainly need to adapt to local practices, you don't have to accept them in their entirety. Many bad practices have persisted for no other reason than well, that's the way I learned to do it. That's not a good reason. For many situations, there is no easy answer. Some of this, though, falls under the heading of simple common sense. Sometimes it might seem like things are obvious, but lawyers lose cases all the time because they don't exercise common sense in the courtroom. In fact, maybe that ought to be rule number one: When in doubt, use your common sense. It won't solve every problem, but it will give you a head start. 

Second, much of the standard advice about how you learn to try cases is just wrong. A common refrain in programs on trial advocacy normally offered by some senior lawyer, a grizzled veteran, goes something like this: "Well, you can't learn how to try cases by reading a book. You can't learn anything by watching other people. You need to get up and do it yourself. The only way to learn is to get knocked around, to fall down, get up and do it again." There are multiple fallacies buried in that argument, as well as a significant kernel of truth.

The first fallacy is the notion that because you can't learn everything from a book, you can't learn anything at all. That, of course, is not true. We can all learn from the experience of others, whether spoken or written. There are so many good books and even movies about trials, fiction and nonfiction. Read them. Enjoy them. Learn from them.

The second fallacy is the notion that you can't learn anything by watching other lawyers. That, too, is not true. Watching other lawyers — both good and bad, by the way — is a critical component of the learning process. If you go to court for whatever reason, take some extra time to observe whatever cases are being tried. You should take care, however, not to imitate something without questioning whether it makes sense. Many of the worst faults of lawyers are perpetrated because new lawyers assume, well, I guess that's how it's done. Just because something sounds impressive or lawyerly doesn't make it a good idea. In fact, if it sounds lawyerly, you probably ought to avoid it.

The third fallacy is that the lessons learned from experience are always the right ones. They aren't. Lawyers are constantly learning the wrong lessons, most notably when they get away with doing things badly or, worse still, when they win a case despite a lousy performance.

The fourth fallacy is the implicit suggestion that courtroom experience is an option that is there for the taking. Unfortunately, it's not. Courtroom experience is an increasingly rare commodity, and it's foolish to pretend otherwise. Of course, hands-on experience matters a great deal. No one can learn everything they need to know from a book or by watching others or in a classroom. But you have to make do as best you can with what is available. In today's world, that almost always means making do with limited hands-on experience.

Be creative and be aggressive in your search for experience. Volunteer to conduct the practice examination of a witness. Search for pro bono opportunities. There are so many folks out there who need legal help they cannot afford. Be that person. Take trial advocacy programs more than once. Sign up for court-appointed matters. And, most important, ask, ask, ask. No one will know how much you value opportunities to gain experience unless you tell them. I have no magic wand. The best I can offer is years of different perspectives on and fascination with this extraordinary process we call trials.