Rusty warriors

A boxer who has had a long layoff between bouts is rusty when he gets back in the ring. He moves a bit slower and lacks the same finesse he once had. He sees the punch coming and his brain tells his body to duck, but somewhere after the thought and before the action, he feels the sting of the punch landing. The boxing term for this is ring rust.

A trial lawyer also suffers ring rust when there is too much time between trials and insufficient practice of the skills unique to trial practice. Trial lawyers must be quick in conversation to engage jurors during voir dire or they get blank stares and little useable feedback. They must be alert to timely object or the opportunity is gone in an instant. The trial lawyer's true skill is shown in cross-examination with sharp questions and the ability to quickly read the witnesses and jurors. Trial skills are a feel - measured timing and the ability to make something difficult appear effortless and important at the same time. A trial lawyer develops confidence that is not arrogance, but a comfort that comes from preparation, repetition, and experience in a courtroom.

The pandemic has created a country of rusty trial warriors. Trial lawyers are getting slow and soft, nervous and anxious. The rusty boxer takes one on the chin; the rusty trial lawyer figures out a question was objectionable long after the damaging answer is ringing out and written down by jurors. It is the sinking feeling of, "something sounds wrong about that question, I think I should object, let me think of the correct objection, yes, I have it in mind... Oh no, she is on to the next question." The rusty trial lawyer suddenly finds himself committing the trial sin of relying too much on written notes and plotting awkwardly through cross-examination. They are no longer confident in their ability to, shall we say, float like a butterfly and sting like a bee.

Real trial lawyers, across the country are nervous. They know that to do what they do well, they must do it often. The more they do it, the more juries they pick, the more witnesses they cross-examine, the more arguments they make, the better they get at the art of persuasion. After all, what trial lawyers do is practice and perform the art of persuading 12 people to see their clients' view of the facts and the law.

Trial lawyers are anxious because they don't know when they will get the opportunity to stand before a live jury not wrapped in face coverings and separated by plexiglass. They represent clients desperately in need of justice. That justice can only be obtained in a jury trial, but many of the Los Angeles Superior Courts are not setting trial dates until 2022. Trial lawyers are fearful that when the time finally comes to go back into courtrooms, they may not be up to the job and possibly let down those who trust them with the most important matters in their lives.

A boxer minimizes ring rust with a disciplined regiment of conditioning and training. Trial lawyers must find ways to stay sharp and hone their skills during the pandemic. Zoom depositions of hostile witnesses and adverse experts are excellent tune-ups. Even through the computers lens there can be some aggressive cross-examination and maybe even land a few verbal punches.

Many jurisdictions are offering to conduct court trials on civil cases. On the right case, jump in and do it. Your competitive instincts will engage as soon as you walk into the courtroom almost as if a jury were in the box. You will still go through openings, closings, direct and cross-examinations. There are many arbitrators doing live arbitrations and will conduct the proceedings similar to a court trial. Binding arbitrations and court trials have winners and losers, and the outcome is just as important to your clients as if the case were tried to a jury.

The pandemic is a very good time to have focus groups on cases that may eventually make it to a jury trial. They can be conducted remotely or with safe social distancing. They can be done economically, provide very useful information and keep the lawyer sharp. Lawyers can utilize technology to hire jurors from the jurisdiction where the trial will take place and to pick sample jurors of selected ages, education, experience, etc. Mock trials can be used to put on portions of the trial or simply to get an assessment of your client's testimony. The information learned in mock trials is essential to figuring out the best way to present your evidence at trial. Mock trials can even help the trial team get a sense of how a jury might value a client's case. (However, keep in mind that is one of the harder things to get reliable information on in a mock trial, due to the abbreviated presentation of evidence).

In the beginning of the pandemic, the thought of a 30-day shut down with stay home orders sent shockwaves through the community. Suggestions were made to try cases either remotely or wearing masks. Most bar organizations expressed outrage at that idea of being forced to try a case remotely or hidden by a mask. Our constitutional right to a trial by jury seemed in jeopardy. As the reality of the second Coronavirus wave sets in with COVID-19 cases spiking across the country, and with fear of no civil jury trials on the horizon, many are rethinking their position of remote trials and masked advocates and witnesses. There are several examples across the country of fair verdicts rendered in remote trials conducted entirely on Zoom. Courts are starting to figure out how to make social distancing and face masks work in the courtrooms. Remote and in person trials with safe measures have had defense verdicts and significant plaintiff verdicts. There are advantages and disadvantages to our new normal in trial courts. Taken as a whole, trial lawyer attitudes have changed since the beginning of the pandemic. The words heard most now from trial lawyers are, "Remote or masked, just get me back into a trial court!" 