Thoughts on Trial
Like surgery for the surgeon, the playoffs for a football player and war for the soldier. Trial for an attorney, while the pinnacle of his profession, is something that happens far less than one expects. In trial the risks are highest, pressure at its peak and the foundation you relied on prior to trial changes daily. But, if you're into that type of thing, it's the most fun an attorney has.
Fear.
I am always afraid to begin a trial. But I love trials. I am afraid to watch horror movies, and I hate horror movies. I decided fear prior to trial is like that feeling in your stomach right prior to the bungee jump. It is the feeling when you are climbing into a canyon on a rope that looks bad, but that you know will hold you. It is approaching a bucking mule, about to throw its pack. Trial will not kill you (it might kill your client). It can definitely affect your career.
Trials are so risky, I sometimes can't believe they talk attorneys into doing them. Prior to a trial, the attorney is trying to evaluate the risk/potential for recovery in the case. Discovery is conducted in order to figure out, prior to trial, whether the evidence is for you or against you. Offers are made to hedge your bets and reduce your risk. The real risk, I guess, is letting a jury make the call. You can even ask the judge to take it from the jury at the close of evidence. But letting it go to the jury (or fact finder) is the risky part.
Fear.
I am always afraid to begin a trial. But I love trials. I am afraid to watch horror movies, and I hate horror movies. I decided fear prior to trial is like that feeling in your stomach right prior to the bungee jump. It is the feeling when you are climbing into a canyon on a rope that looks bad, but that you know will hold you. It is approaching a bucking mule, about to throw its pack. Trial will not kill you (it might kill your client). It can definitely affect your career.
Trials are so risky, I sometimes can't believe they talk attorneys into doing them. Prior to a trial, the attorney is trying to evaluate the risk/potential for recovery in the case. Discovery is conducted in order to figure out, prior to trial, whether the evidence is for you or against you. Offers are made to hedge your bets and reduce your risk. The real risk, I guess, is letting a jury make the call. You can even ask the judge to take it from the jury at the close of evidence. But letting it go to the jury (or fact finder) is the risky part.
Another tricky part is being aware of what others see, and forgetting what you already know. It often seems that while preparing for closing arguments, I find some facts that I forgot to present to the jury. If I didn't present them to the jury, they don't exist. This is probably the reason for some of the verdicts that people find objectionable. The jury doesn't get character evidence, for example. Hours and months are spent trying to narrow the scope of the evidence they are allowed to see. In preparing closing arguments, you want to remind the jury of what they saw. Remind them that everything points to the verdict you prefer.
The toughest part of closing arguments, if you are a defense attorney, is the order of the arguments. Plaintiff gets first shot, you get to rebut, but Plaintff gets the last word. There is nothing harder than watching the other guy get to be the last one to spin it for the jury.
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