Becoming a Trial Lawyer: Beyond Technique
Posted by Alex Miller on Feb 26, 2021
An Excerpt from Becoming a Trial Lawyer, 2nd Edition by Rick Friedman
In human relations—and trial involves nothing if not human relations—technique is important. Think of teachers, therapists, standup comics, or singers. The good ones all study techniques in their fields to improve their effectiveness. In each of these fields, however, much more is going on than good technique. The singers with the best vocal technique are not necessarily the most popular or the ones who move us. Often the ones with poor technique can somehow reach out and grab us.
The same is true of trial work. Lawyers with nearly flawless technique can lose case after case, while lawyers who appear clumsy and bumbling can win repeatedly.
Technique can be thought of as the product of experience and inspiration. Hundreds of years ago, after conducting numerous cross-examinations, some lawyer figured out that asking only leading questions (those to which he already knew the answers) brought the ability to control the story the witness told. A technique was born. Over time, the technique became dogma. Like most dogma, it provided structure and support, but also stifled spontaneity and creativity.
Trial lore is filled with stories of sloppy lawyers who paid a high price for asking non-leading questions on cross-examination. Trial lore is also filled with stories of inspired lawyers who dared to deviate from the dogma and scored huge points.
Don’t think for a minute that I am denigrating technique. Techniques are your weapons. Study, save, and treasure them like any weapon you might depend on. Practice them until they become second nature. However, much teaching of trial practice loses sight of a significant truth: the weapon is less important than the person who chooses and wields it.
Outstanding teachers, singers, lovers, and trial lawyers have one thing in common: they communicate a truth that resonates inside them. They are trying to get that truth to resonate with their students, audience, lovers, or juries.
Techniques are some of the tools available to aid their communication. How do they find that truth? How do they refine that truth? How do they keep other parts of their makeup from sabotaging that truth?
To be a good trial lawyer, be willing and able to give yourself to the jury. Not the self you wish you were or the self you think the jury might wish you were, but your actual self, the part of you that is scared, angry, or tired and the part of you that feels the justness of your case.
Most lawyers can’t—or don’t want to—do this. Showing jurors your real self is too scary. If you show them your real self, and they decide against you, they are rejecting not just your client— but you. Much safer to show them “Mr. Trial Lawyer” or “Ms. Smart Professional Woman.” If you lose the case, at least you aren’t being rejected, dismissed, squashed.
I’m not advocating temper tantrums, tears, or runaway emotions in the courtroom. Trying cases requires tremendous emotional discipline. An overdone emotion at the wrong time (and I’m tempted to say at any time) will kill your case. But let the jury see the case matters to you, that you believe in it heart and soul, with nothing held back, and that can make all the difference. No protective cynicism or irony, no deft razzle-dazzle. Just you and your soul, out in the open, for all to see.
Doing this can feel as if you are tearing out your heart and putting it on the jury rail. You are in effect saying, “Here is my heart. Please don’t crush it.” If you lose after that, it is devastating. I have heard other longtime trial lawyers try to describe this feeling. It is a very personal thing. It makes all of us afraid.
In at least ten difficult cases in my life, I am convinced my willingness to expose myself in this way is all that won the trial. Working extremely hard and applying every ounce of skill I could muster did nothing but make it a close case. At closing, the case still hung in the balance. Something more was required, something harder to deliver: my heart? My soul? Something like that. I had to make a leap of faith to get the jury to leap with me.
Letting another person see who you really are is difficult. It can be terrifying. We all gravitate toward protective masks and behaviors. The higher the stress, the higher the stakes, the more we are inclined to present something other than our true selves to the outside world. The protective masks and behaviors make us feel safe.
The problem is that most people—including jurors—recognize these protective masks and behaviors. You are not fooling anyone—it just feels as though you are. They may not read your mind or your heart, but they’ll know something isn’t right—and assume the worst.
As with most trial skills, you can practice this outside the courtroom. Try letting your spouse or your children see the parts of yourself you would just as soon keep hidden. Make yourself vulnerable to a friend or sibling by talking about something you would rather keep private. As you practice disclosing yourself to others, you will gain confidence and get more comfortable being your true self in a variety of situations, including inside the courtroom.