TRUST THE PROCESS
By John W. Dill, Esquire
Like any professional, trial lawyers are only as good as their preparation.
An old adage instructs us that the better-prepared attorney will usually
win the trial. The advocate that spends the time doing the tough trial
preparation often experiences the euphoria of “cracking the case”.
This is when a simple fact that makes all the difference bubbles to the
surface in the days or hours before a trial. I live for those moments
in my trial preparation. But I’ve never experienced cracking the
case without going through the same process of preparation for each case.
We all knew the people in college or law school that would neglect steady
study and “pull an all-nighter” right before the big exam.
Usually they ended up caffeine addled and sleepy and came in with mediocre
grades. I’m always amazed by trial attorneys that insist on scrambling
and putting in crazy hours on nonsense preparation, instead of breaking
trial preparation down into a process. I sometimes try four civil jury
trials a month, or find myself in a three-week marathon with reams of
documents and volumes of depositions. My process of preparation is always
the same. When you break it down into simple components, trial preparation
becomes like any other discipline.
Read Every Document Three Times
It becomes very easy to rely on nursing summaries or paralegal prepared
spreadsheets and avoid the drudgery of reading every single document in
the case at least three times. I usually read all medical records and
depositions once using TrialPad. Then I will go through a hard copy of
all documents page by page. Finally I’ll use a highlighter or tabs
to flag key points, which I can use to cross a witness via presentation
software (in a bigger case) or an Elmo in smaller ones. Reading every
document three separate times drives the text into my mind, so my subconscious
mind works on the case even when I’m sleeping.
Recently I tried an auto case where the issue was whether our client’s
spine injuries pre-existed the crash. Of course the defense argued that
the surgery was unrelated to our crash and dated to a decade old car wreck.
Our treating surgeon had appeared via video-deposition. We were using
an excellent medical records summary prepared by our paralegal, so felt
we knew the documents well enough. The defense had called their usual
mercenary radiologist that opined that the herniated discs were old as
the hills. I had read each document three times but was deep into trial
mode the night before closing arguments, so I had forgotten much of my
prep including reading each document three times. Or so I thought.
About 3:15 AM the night before my closing, I awoke with a start. It couldn’t
be that simple, could it? I went to my computer and pulled up our surgeon’s
operative report. There it was on page six: “cracked osteophytes consistent with acute shearing injury”. I was so pumped up I woke up my wife to tell her the news. She
did not dig that. The next day the closing went quite well, with the defense
backpedalling that the operative report was wrong. We ended up with a
significant win on the case. I’m convinced that my subconscious
mind was working on the case the entire week, only because I spent the
time flipping through each document three times.
Index Depositions By Hand
I love technology. I use all kinds of apps and other stuff whenever I can.
However, there is something about the tactile exercise of writing out
in long hand that drives the information into the computer of the mind.
Although there are apps like Transcript Pad that work wonders, I always
index my depositions by hand. My method is pretty simple. I go through
the depositions and write out the question and answer including page and
line on key points. For each point, I’ll jot down one to five stars
next to it. The process allows me to hop to the five star points at will,
depending on where the witness goes. The beautiful thing about this process
is that I can usually remember the quotes of each deposition without looking
at my pad. I’m convinced that this is only possible when you write
out the questions and answers long hand. I believe that what we read digitally
does not make the imprint on our minds the way that analog information
does. For example, I can remember passages from books I read on the beach
as a teenager, but forget blogs I read yesterday. With something as important
as using a deposition for cross-examination, we should take the time and
work in three dimensions with our preparation.
Brainstorming Is Overrated/ Keep Your Routine
Often in trials, we can get caught up recapping the day’s events
over a few beers and wasting time under the guise of “brainstorming”.
I’m all for kicking ideas around, but too often it’s easy
to substitute simply talking about the case instead of spending the time
working on actual preparation. Being a trial lawyer can actually be a
solitary monk like existence during trial. The time spent pouring over
documents outshines pounding brews and talking about the case with your
co-counsel. Effective trial advocacy comes not from hanging out in sweatshirts
with half eaten pizzas at two AM but with getting up at four in the morning
with a highlighter and a set of medical records.
On that point, I believe it’s essential to keep the same routine
during trial as out of trial. The jury and your client do not care if
you were up all night working. They care if you are presenting information
effectively. Therefore, getting good sleep and food are essential to presenting
a winning case. I don’t think Tom Brady is up past midnight before
a big game, mainly because I know he has put in the time in the weeks
and months beforehand and does not need to cram in order to win. There
is no badge for staying up all night. The only thing we are interested
in is winning for our clients. Keep a smart routine and you will be able
to perform at a maximum level when it matters.
Preparation should be the same every time. Trust the process and you will
be amazed at the results.