Learning to Litigate

Not everyone is cut out to be a Trial Lawyer, but if that's where you find the thrill (or think you will) then there are a few tips that might help. They aren't all the ordinary tips one might think of because doing the ordinary won't make you extraordinary. If you want to know how the box is constructed, sometimes stepping outside of the box is a good way to start.

Observe. One of the best ways to learn a craft is to watch others perform it, even if you aren't sitting at the trial table. Whenever you are in the courthouse, find out if there's a trial going on anywhere and slip in and watch some of it. Notice the differences between the attorneys and how they handle each aspect of everything going on. But don't stop there. Watch for, and learn from, the reactions of the jurors and the judge and the witnesses and the parties to everything that is happening. Remember, half a trial is how you do something and the other half is how everyone reacts to it, especially the jury.

Learn the Rules. Even the worst trial lawyer can get by pretty good if he or she thoroughly knows the rules of procedure and evidence. You should read cases that interpret them and articles that discuss them. Go beyond the fundamentals. Figure out how to memorize the rules, their meaning, and to match up the rule numbers with the rules themselves. Being able to cite to a rule by its number only is incredibly intimidating to other lawyers and judges.

Read about lawyers and trials. In history, there have been a rather small number of really great lawyers. People who have tackled a trial of uniqueness or importance themselves become (or already are) unique and often important. Read about them and their trials. They run from, quite literally, Aristotle to Jerry Spence and include Clarence Darrow, Abraham Lincoln, Daniel Webster and many others. Read and absorb what they did, how they did it, why they did it, and the reasons it mattered and we know about it today. For instance, no really good trial lawyer does not realize the importance of Lincoln's easy manner and trial style. Amazingly, it is still extraordinarily valuable in a courtroom today.

Study Trial Skills. There are lots of good books written about Voir Dire, handling a hostile witness, connecting with a juror, the importance of writing skills and legal writing skills (and they are not the same thing). Look for books on trial practice skills and read every one you can find. In the process, compare them for what they say and find what will work for you. The ABA is full of good books on the topic, as are numerous other sources.

Learn about People. The one magazine that talks about understanding human action and reaction and thinking is Psychology Today. It would do you well to read an issue every once in awhile. It takes a higher-level approach to understanding human beings and how they react to what is going on around them, sometimes knowingly and sometimes not. And if you want to know what the average everyday person is thinking about and doing, don't watch the news on tv. Read People magazine. Odds are that a lot, if not almost all, of the people in a jury box have read that magazine or subscribe or pick it up at the grocery store on a regular basis. But don't read it for the articles so much as for the way it communicates with its readers. And don't stop there. Many other magazines can be found at the bookstore which deal with humanity and its foibles. Understanding a jury is more about understanding people than it is about understanding your case. That is the very reason that a broader reading of literature, including the classics, helps a trial attorney hone his skill.

Practice and Do It. Of course, nothing beats just going in a courtroom and doing it. You can practice all day (and you should), with mirrors and friends and coworkers and spouses. But the reality is that standing in a courtroom is not like standing in your living room. Until you have done at least two dozen trials, you just don't learn many of the things there are to learn about the art. And each time you have a trial, you learn something new. That's just the way it works. So, since fewer cases are actually going to trial than ever nowadays, your opportunities are getting fewer to learn the craft. Pick a case. Go to trial.

Get Feedback. Then, after the trial (or maybe even during it) ask the bailiff for their thoughts. Maybe even the judge later. If the trial is video recorded, get a copy and watch it. One of the best ways to get better at trial work is to find out what others think worked and, much more importantly, what didn't work. Then figure out what you could have done to make it all better.

Last thought: look for trial opportunities. If you are an associate, take the initiative to ask for more responsibility. Ask to sit in on a trial, even if it's only behind the bar in the gallery. Ask for a chance to be Second Chair and do as much as you can with it. When your supervisor or partner superior thinks you are ready to handle the trial, they'll let you know. But you can be sure they will never think you're ready if they don't see you taking the initiative to show your interest and desire to be a Trial Lawyer. If you want to be in the courtroom, then make it clear to everyone around you that you want a chance to be in the courtroom. And when you get that chance, give it everything you've got. Win, lose or draw, you will probably walk away with more self-confidence and knowledge and certainty about yourself than you have ever had in your life.

Litigation is an art, a science, and a craft. It can be learned, but only by those who really want to learn it. Fewer attorneys than ever know how to do it really well and those who do will be able to command a higher salary, and a higher level of respect amongst their brethren, than ever before.

Ronald L. Burdge
Helping Lawyers Help Their Clients, Since 1978