Forget Playing it Safe in Trial
We all are taught from childhood to play it safe in social situations. We are taught not to express opinions that might be controversial or offend others. By adulthood, we typically don’t express an opinion among strangers unless it is of the blandest, most mundane sort (“I hate this rain, don’t you?”).
The way to play it safe in law school was to raise and explain every possible issue. If five arguments supported a particular result, you had better discuss them all. Civil and criminal classes support this type of issue spotting, and some law firms believe this works in litigation.
But, this law school training works against you at trial. Particularly in your first trials where you have little practical experience. There is no safe way to try a case—unless you are a prosecutor or civil defense attorney. Representing people at trial is not like designing a bridge or flying a plane. To do it right, you have to take risks. The two main ways lawyers avoid these risks are by playing it safe tactically and playing it safe psychologically—although I believe in all cases it is mostly psychological risk we seek to avoid.
Playing It Safe Tactically
Let’s talk about a few common tactical risks that confront trial lawyers. Your client has a claim for injury to his leg. Your state allows recovery for emotional and mental distress for that injury, and your complaint requests damages for emotional and mental distress. Your client also has a long history of psychological care, including references to delusional behavior and beating his wife. If you drop the emotional and mental distress claim, the defense is either not allowed discovery of the psychological history or the court will rule it inadmissible.
There is no safe way of handling this situation. Most lawyers— especially new ones—feel safer maintaining the emotional distress claim. That seems the way to get the most money—more claims equal more money. The client can’t later criticize you by pointing to an article in a newspaper in which someone recovered $1 million for mental and emotional distress associated with a similar injury.
As you sit in trial, however, watching the jurors’ disgusted reactions to your client’s psychological history, you may have second thoughts. But if you think dropping the emotional distress claim is safe, think again. The judge may admit reference to your client’s psychological history, even if that shouldn’t have been allowed. The defense may come up with an independent reason that makes the history relevant. You have then dropped a claim for no good reason, or so it may seem to an armchair trial lawyer.
How about making objections during trial? Do you make the objections to “preserve the record” on appeal and risk incurring the jury’s distrust, even wrath? Alternatively, do you let the opposition’s impropriety go without objection, losing the chance to appeal the issue and knowing you can be criticized later for not objecting to obvious legal errors?
As a criminal defense lawyer, do you put your client on the stand to tell his story, or do you rely on his Fifth Amendment right to stay silent?
Anyone who tells you there is only one right way to handle these situations is giving you bad advice. In a particular case, there may be only one right way to handle an issue, but that does not mean the same approach is right for the next case. The truth is, the choice may be between two bad choices, each of which can cause its own brand of trouble.
All tactical decisions, almost by definition, involve some risk, whatever choice you make. When I talk with lawyers wrestling with these types of tactical decisions, I notice two common themes:
1. Many are trying to find the safest tactical decision—by which I mean the decision that will make them feel safe.
2. Many are consciously or unconsciously trying to make a decision that will not leave them open to others’ criticism.
As for the first theme, you might as well get used to the fact that a tactical decision will seldom feel safe. At trial, we make a series of choices between a series of risky alternatives. That is a big part of our job description. For example, you may have every reason to think your criminal defendant will do a good job as a witness and put her on the stand. Still, no matter how good a witness she turns out to be, you will never, ever feel safe while she is testifying—or in the days leading up to her testimony. Conversely, if you decide not to have her testify, that will often feel unsafe as well. It may feel less dangerous than having her testify, but it will almost never feel safe.
Some lawyers try to avoid choosing between unsafe choices by ignoring that there is a tactical decision to be made. Of course, you can’t ignore some decisions—like whether to put your client on the stand. You can ignore other decisions if you pretend there is only one course of action—but that is making a de facto decision, isn’t it?
In short, your job is to take calculated risks on behalf of your client. You may be certain you are making the right tactical choice, but I doubt you will ever feel safe. If you want to feel safe, find another job.
If you put your criminal defendant on the stand, she may fall apart. Does that mean you made the wrong decision? Not necessarily. It depends, in part, on what your chances of winning were without putting her on the stand. Nevertheless, someone who knows less about the case than you will undoubtedly offer criticism, no matter what you did, if the case goes badly.
This brings us to the second theme I repeatedly see in lawyers struggling with tactical decisions: looking for psychological safety in the approval of their peers. They intuitively know they can be criticized for any tactical decision if the case goes badly. So they try (consciously or unconsciously) to make the decision their peers would support.
These lawyers have one eye on the audience at all times—the audience of their imagined peers who will judge their decisions. The question shifts from, “What will maximize my client’s chances of winning?” to “What would my peers think is the best course to take?” or “What is the conventional wisdom about this sort of tactical issue?” Let me first state the obvious: your peers know much less about the case than you. They also have no responsibility for the results— which has a way of making people much more convinced that they know the right course of action. Finally, “conventional wisdom” regarding trial practice is more about making lawyers feel safer than about helping them win cases.
In all tactical decisions, you give up something to gain something else. When you make these decisions, there is no safe route. In hindsight, you may have made the wrong decision. Or you may have made the right decision, but things still went wrong. You may have made the wrong decision, but won the case anyway. There is no safe decision; they all involve risk—risk of hurting the case and risk of incurring others’ criticism. There is no way around this. It is your job.
This is not to say that you should not ask for advice or consider conventional wisdom when confronting tactical choices. What it does mean is that your very human desire to insulate yourself from criticism has no place in your tactical decision making. When you make tactical trial decisions based on how you will look to others, you are selling out your client to protect your own ego. Big mistake.
So what should you do when making tactical decisions?
1. Think through the problem thoroughly on your own.
2. Brainstorm with your friends and partners to come up with as many courses of action as possible.
3. Weigh the pros and cons of the choices.
4. Continue weighing the pros and cons as the case evolves.
5. When you have to make a choice, base it on what you believe is in your client’s best interests. Your job is to take calculated tactical risks on your client’s behalf.
6. Accept the fact that you may look foolish for the choice you made. That is your job. If you are not willing to risk looking foolish, you have no business being a trial lawyer.
Playing It Safe Psychologically
It should be clear from the previous discussion that playing it tactically safe comes from trying to play it psychologically safe. We want to feel safe and avoid criticism.
Other ways of playing it safe psychologically don’t directly involve trial tactics. These are the mind games we play with ourselves to make the stress and uncertainty of trial easier to bear. Here are some of the more common ones. If you catch yourself doing one of these, you are chickening out. You are working to protect yourself instead of working to win the case.
1. Not caring—about the case or the client. The pain of losing is too much to contemplate, maybe because you have experienced it too many times. Your reaction can range from cynical hostility (“I have a scumbag for a client anyway”) to finely tuned irony (“Isn’t it funny how everyone makes such a big fuss over a broken leg?”). One way or another, you communicate to yourself and those around you that you don’t really care about the outcome of the case. You are too cool to care, too sophisticated to worry, really, too good for the case or the client.
This attitude creeps up on people. Most don’t intentionally adopt it. Watch out. If you start thinking or talking this way, you are working too hard at protecting yourself. You are like boxers or football players who are afraid of getting hit. They can’t perform as they should if they’re mostly concerned with protecting themselves—and neither can you.
2. Telling yourself the case can’t be won. Look how hard it is. How could anyone expect you to win it? No one could win this case. If the case is hopeless, no one can blame you for losing—not your client, not your peers, not yourself. What are you doing when you start thinking like this? Playing it safe, protecting yourself again.
Now, it is true that some cases can’t be won, but still may need to be tried. Part of your job, I am sorry to say, is to convince yourself there is a way—no matter how improbable—that you can win the case. Do this for two reasons. First, you may be wrong in your evaluation. The case may be more winnable than you think or understand. Second, anything can happen in a trial—and it just might in this one. An unexpected opportunity may rear up in the courtroom and change things in an instant. If you’ve already succumbed to self-pity and decided there is no way to win, the opportunity may pass you by.
3. Keeping score during the trial. What I mean by this is rationalizing why you lost the case before the trial is even over. You keep a list of reasons you can present to yourself and others as to why you lost. You greet every adverse ruling with a mixed emotional reaction: disappointment that the case just got harder mixed with relief that you can point to something else to justify the loss. The same thing happens when a bad juror is seated or a witness testifies poorly. You play it psychologically safe by keeping a running list of each event, so that afterward you can point to the bad luck, bad judge, or bad juror who cost you the case.
4. Holding back a piece of yourself. All these ways of playing it safe have two things in common. The lawyers who do them are, first, trying to protect themselves from the psychological pain of losing and, second, holding back from a full psychological and emotional commitment to winning.
We all seek to protect ourselves from emotional pain. If you fully commit to winning, then losing is a devastating, miserable experience. It only makes sense to hold back a piece of yourself, to save yourself the pain, “just in case.” The problem is that in doing so, you reduce your chances of winning. Again, a football player whose main priority is avoiding injury is unlikely to play as well as he otherwise would. The same is true of the trial lawyer. In protecting yourself, you miss opportunities to shine— intellectually and emotionally. And sometimes the only way to win is to shine.
This is certainly not an exhaustive list of ways in which trial lawyers try to play it safe psychologically. Chances are, you have some special techniques of your own. Watch for them. They undermine your success. Perhaps more important, they undermine the joy you can find in throwing yourself into something without reservation. Not many people ever find that in their jobs.
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