Tips for new attorneys: The best things about going to trial

A few years ago, I was walking to my car after an Inn of Court program and talking with a newly admitted attorney about being a litigator. I truthfully told her, as I always do in these situations, that trials are the best part of this business. She asked why, and I told her -- competition, the need to think on your feet, creativity, great when you win, interaction with jurors -- you know, the standard stuff!

Driving home, I started thinking about exactly what it is about a trial that makes it so special -- what are the best things about a trial, the best moments in a trial? I've been able to narrow it down some particular things that make trials so great. Please note, while some do, not all these things happen at every trial. But, when they do, they matter. I have not included "winning" as one of the best things, because winning is too obvious to list, though of course, it's one of the best parts of being a trial attorney. So, here we go, my list!

The precise moment when you stand up to give opening statement. This is the moment when that it all comes down to you. It's a very singular moment. No matter who was involved in trial preparation, no matter how many lawyers handled the case, no matter who argued the motions and took the depositions, no matter how many lawyers are sitting with you at counsel's table, no matter what happened in the case before that moment, when you stand to give opening, it is all on you, it's on your shoulders -- you are at bat. All the talking, thinking, arguing and worrying about the case over the last year or two is over -- it's time to go. You have to be prepared, you have to be ready, you have to perform. Trials are a collective effort. Even the smallest of trials involves a number of people working together to pull the whole thing off. But, opening statement is a uniquely singular and solo moment in that process and, at least for me, standing up to start opening is always a best part of any trial.

When direct examination of your client or witness goes as intended. Like many trial lawyers, I find direct examination more difficult than cross. Getting the needed testimony from a client or witness without leading, in a persuasive manner, without inviting objections through poorly worded or argumentative questions, and without boring a jury, can be difficult. When critical testimony comes in smoothly on direct, in a clear and concise manner, and the jury is paying attention, it's one of a trial's best moments.

When your opponent asks your client one question too many. Ego and hubris can get the best of any trial lawyer. You are killing the cross, controlling the witness, the pace and rhythm of the questioning is perfect, you own the witness, you own the courtroom, you own the case; then, you go too far, you break the cardinal rule on cros: you ask that one question too many and, worse yet, you ask that dangerous open-ended question. The witness sees the opening, steps in and kills you with a long, well-rehearsed answer, wiping out all your previous good work on cross. The jury, immediately wide awake, sees the misstep, and listens. We've all been there -- hopefully, not very often. It's not good. But, when it happens to the other side, it can be one of the best things for your case.

When the jury concludes your opponent is largely wasting their time. Jurors punish lawyers who waste their time. My experience is that most people, when picked for a jury, take their obligations seriously and will do their best. But they want to be there only as long as is necessary to get the evidence, hear the arguments, and make a decision, and not a minute longer. If you are prepared and ready to go with each phase of the case, make your arguments and examinations clear and concise, and diligently move your case along, jurors will like it. It will reflect preparedness, credibility, and confidence in your case and client. Conversely, if you are unprepared, unfocused, and just generally slow and meandering in your actions at trial, jurors will hate it.

When your impeachment actually works. We often think that the impeachment of a witness with a prior inconsistent statement will be a watershed moment at trial. The witness says one thing at trial, you immediately show his deposition video where he says something completely different. Witness is a liar -- it's on tape -- case closed! Clear, effective, meaningful impeachment of a witness is a rare thing at trial. When it happens during your cross, it's a best thing at trial.

When the objection tide turns. Objections in front of a jury are a tricky thing. You don't want to object too much, as you may be perceived as wasting the jury's time, or attempting to hide the truth, or attempting to unfairly obstruct your opponent's case. My view -- jurors don't like objections. This is especially true if your objections are not well-taken and not sustained. But, sometimes the converse will happen. Well-timed, well-taken, objections will not only keep evidence and improper argument away from the jury, they will also reflect preparation, confidence and credibility. When we try cases, we wrap our own credibility around that of our clients. If you are continually winning the small skirmishes and evidentiary objections in front of the jury, it will serve to enhance your credibility and, in turn, that of your client.

When the jury files back into court after reaching a verdict. No matter the case, this is always a dramatic moment. What are they thinking? Are they looking at us? Are they looking at the other side? Smiling, frowning, happy, sad, annoyed? Here goes, what is going to happen? It's always great drama -- always a great moment.

When you speak with jurors after the trial. Talking to jurors after a trial, win or lose, is a must in my book. You have shared a unique experience with them, and they usually want to talk. And it is, almost always, interesting, fascinating and fun. They are usually not shy to critique your performance, or that of your opponent. They most always have based their decision on things you did not deem significant, and they are quick to assess credibility.

But the absolute best is when the trial is over and you are having drinks with opposing counsel. When this happens, it's the best thing. We are not enemies -- this is not, or at least it should not be, personal between the lawyers. We are professionals, advocates fighting for our clients in a case. When the fighting is done and the case is over, we are still lawyers practicing together in a community and will surely see each other in the court hallways, if not in court, again. There is always another case, always another client. But, professional relationships and reputations are long-term deals. We shouldn't lose sight of that perspective in the heat of any particular case. Some of my best professional friends are past opponents, and those friendships are bolstered by our stories, over drinks or dinner, of our past battles -- as it should be. 