We spend a great deal of time in our Trial Lab practicing examination and presentation exercises.
These exercises range from drilling on fundamentals to experimenting with radical new approaches. We work on general exercises applicable to all cases, and use our cases as practice. For example, before we take the deposition of an important witness, we conduct cross-examinations of that witness on key issues. This allows us to discover new arguments and lines of inquiry. As a result of our preparation in Trial Lab, we have a measurable advantage at trial.
Why spend time doing exercises? Why can’t you become an effective trial lawyer by participating in trials and improving your skills over time?
The principles of improvement that apply to learning trial skills are the same principles that apply to learning any other human endeavor – how to speak French, play tennis or perform thoracic surgery. You cannot improve if your plan for improvement is, once or twice a year, to spend a week in France, play a tennis match, or perform a surgery. Likewise, you cannot significantly improve trial skills by participating in occasional trials. Learning occurs when a person focuses for an extended period on a narrow skill to the exclusion of all else (e.g., controlling an evasive witness on cross without regard to the substance of the cross-examination), repeats an exercise several times within a short period of time, and receives immediate feedback and coaching.
The problem is actually deeper. Those few litigators who have special talent or receive special training (by, for example, spending time as a prosecutor) may reach a level of competence, but then they merely maintain that level for the rest of their careers. Veteran litigators who try a case every year or so do not markedly improve their skills. The trial setting does not permit a trial lawyer to employ the techniques necessary for improvement. You can’t stop in the middle of your direct examination and ask the judge for a “do over.” Furthermore, the press of trial preparation does not permit time for any training on trial skills in the month before trial. The only solution is to work on trial skills now, and every week, between trials.
Since most cases settle, why do you focus on trial skills? Wouldn’t you be better off focusing on skills applicable to pretrial discovery and settlement negotiations?
The answer to this question has two facets.
First, the skills that actually matter before trial are the same skills used at trial. Cross-examination, opening statement, and closing argument skills are the key to victory through settlement. You cross-examine the opposing parties during depositions. You prepare and deliver a persuasive argument during a mediation or settlement conference. As a result, achieving total victory in settlement requires effective use of skills and techniques used to achieve a comparable jury verdict.
Second, most pre-trial work can be done well only by someone with good trial skills. For example, you cannot take a deposition that effectively will impeach a witness at trial unless you know how to impeach a witness effectively at trial. One reason that most pre-trial work has zero impact on the actual resolution of a case is that most litigators lack good trial skills.