Your First Trial
Lawyers have no established standards for determining when someone is ready to try a case. As you wrestle with the question of whether you are ready, remember that this awkward situation is not a result of any inadequacy on your part—the profession has let you down.
How do you know when you are ready for your first trial, your first murder trial, your first serious injury case? Some lawyers say the way to prepare is to second-chair several complex trials before attempting the simplest trial on your own. Others scoff at the second-chair approach and claim the best preparation is to start with the simplest cases and handle them on your own. Some say you must have ten felony trials under your belt before handling a murder case. Others will say that a murder case is simpler than some of the messier, lesser felonies—such as those relating to sexual abuse.
Most trial lawyers have strong opinions about what constitutes adequate background to try a particular type of case. Not surprising, most of them believe the way they obtained their experience is the preferable approach. The fact remains: there is no “standard of care” here.
If a lawyer you admire is willing to let you second-chair, take the offer. However, choose your mentor wisely—a bad first chair will leave you with bad experiences and bad habits.
Accept that your first several trials might be excruciatingly uncomfortable—no matter what the circumstances. You will make mistakes. That is unavoidable. It is also forgivable, as long as the mistakes are not born of arrogance or laziness.
Try not to get yourself into a position where your mistakes can do serious harm. With a good first chair, your client should be reasonably safe. If you are handling a case in which the stakes are relatively small, again, your client should be reasonably safe.
However, relatively small to you could be very important to your client. Don’t try to conceal your lack of experience. Don’t be afraid to say, “If I take this case, it will be my first drunk-driving case. Therefore, I will charge you half the going rate.” You might say, “I have never handled a personal injury case of this size before, so if it goes to trial, I will bring in another, more experienced lawyer to help me try the case—at no extra cost to you.” You may lose some clients this way, but not many. Most will appreciate your honesty, and you will communicate how important their case is to you. All clients want their case to be important to their lawyers. If they know it is your first case of this type, they will assume it is important to you, unless your conduct shows them otherwise.
If you are a new lawyer, your trial opportunities will mostly involve cases too small or too “unwinnable” for anyone else. You are the lawyer of last resort. If you are brave and work hard, you might prove the small case bigger than anyone thought or bring the unwinnable case to successful conclusion. And your client will have someone fighting for their best interests—often a first for our clients. This can be the most lasting gift we give our clients.
Almost all trial lawyers—no matter how accomplished—are insecure about their trial skills. The likelihood is that you will always be somewhat insecure about yours. This does not have to be a bad thing. It is what keeps you up nights researching the other side’s expert or fine-tuning your voir dire questions. It is only a bad thing if it keeps you paralyzed, unable to get your trial feet wet. Some prefer to plunge in all at once; others prefer to get their toes wet, then their ankles, and so on. There is no single right way. Do what feels most comfortable. But keep getting wet.
To learn more about how to try your first trials in the most effective way, see Rick Friedman's books The Elements of Trial and Becoming a Trial Lawyer, 2nd Edition.
Visit Rick's Trial Guides author page for more on his best selling books and videos for lawyers.