Mark Roman | January 19, 2011 | Articles
If there is one thing skilled trial lawyers agree on, it is the need for thorough preparation. A lawyer who goes into court must know the case they intend to prove. To the extent possible, they must also know their opponent’s case and be ready to defuse it. Trying to “wing it” through a trial is irresponsible and usually a recipe for disaster.
One thing that gets mentioned less, but is also critical, is flexibility. Civil trials can be messy affairs, and they rarely go according to script. In the real world, witnesses say unexpected or baffling things. Judges make rulings which restrict one’s ability to introduce evidence. Delays and scheduling problems throw off the timing of calling witnesses.
Another variable is the “temperature in the room.” In some cases, I’ve prepared a blistering cross examination of an opponent’s expert witness. Fearing that the witness would try to trash my entire case, I got ready to hit back just as hard. Then when the witness actually testified, they came across as fairly reasonable and non-partisan. I ended up having to throw out the script and perform a more low-key cross examination.
In the same vein, a lawyer should be careful to treat each witness differently. An elderly woman who witnessed a car accident on her way home from church should usually be treated gently. A convicted felon who causes a drunken driving accident deserves little or no respect.
A skilled lawyer might also decide on the spot to ask additional questions of a witness who appears to have grabbed the jury’s attention, while cutting questioning short for a witness who has not. Again, one cannot just blunder along without paying attention to how evidence is being received.
This is not to say, however, that the twists and turns of trial make preparation futile. Preparation actuallyaids flexibility. A lawyer with a full command of the facts can shift gears much more easily than one whose knowledge is superficial. If you have done enough preparation to know what questions can safely be asked of a witness, it is much easier to adjust your approach. Obviously, experience helps in these situations as well.
Trying cases is as much an art as a science. An ability to roll with the punches and adapt is important. That is one more reason why people should consider a lawyer’s trial experience when making decisions about who should represent them.
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