In the early years of trial practice, most lawyers are focused on skill building – learning how to take a good deposition, manage a case, write and argue a successful motion. There comes a point, though, where what is needed to take your performance to the next level is not mastery of any new skills but mastery of yourself and your relationships with those around you.
Being a trial lawyer is stressful and demanding. The most stressful aspect is that you, the trial lawyer paid the big bucks, are expected to ably manage all of the uncertainties and risks of trial – while you yourself do not have control of many of the factors that determine the outcome.
You don’t control the judge.
You don’t control the jury.
You don’t control the client either and typically have to deal with client anxieties that erupt over trial and perhaps also efforts to micromanage your handling of the trial.
And of course, you don’t control the witnesses.
You probably went into trial law because you are a Type A person who wants to control and impact outcomes. And yet you find yourself in a world where it may see you are often reacting to others more than you are shaping the context of your and other people’s actions.
You also are in a world of conflicts and disagreements where people can often be emotional, angry, demanding, and manipulative in ways that are at best wearing to be around and at worst emotionally toxic.
Writing a better brief won’t help you deal with these challenges.
The first thing to recognize is that stress is in itself neither good nor bad. Stress is a normal and healthy response in situations of change and learning. What matters is how well you are prepared for stress and how you react to it.
So how do you create peak performance in such conditions of stress and uncertainty? Here are some tips.
Preparing for success is not as simple as memorizing your opening statement or your argument, as you are operating on a shifting terrain and need to be flexible as well as prepared – you cannot be overcommitted to one path or you will find it difficult to adjust if a key ruling requires you to change your opening or recast your case themes on the fly. However, being well prepared is certainly one piece. Know your evidence. Have well organized binders of materials. Have your opening mapped out sufficiently so that you know where you are going after jury selection.
Focus on what you can control, not what you cannot
It is easy for our thoughts to go spinning out of control about the unfair and terrible ruling of the judge or the lying, cheating conduct of opposing counsel. If you find that happening, redirect that energy in more productive directions. Exercise can help shift that mental energy into physical energy and allow you to clear your mind; then shift your focus into how you want to try your case in the face of the new situation rather than on fixing what you think is broken or wrong.
Don’t think about what is right or wrong – focus on what you think will be effective and what you must get into the record.
If you find yourself thinking obsessively about what has happened and cannot snap out of it, reach out to your associates or consultant on the case, or to a trusted colleague or advisor to discuss the situation. Get a fresh perspective.
Also, don’t accept responsibility for things that you cannot control. Clients may be unhappy with how events are unfolding in the moment and blame you for things that are not your fault. Let your client blow off steam but internally, be clear with yourself that you are not responsible. That leads to the next point…
Keep the long view
Trial is a marathon, not a sprint. Some days are good days and some are bad. Don’t focus excessively on what is happening at the moment; keep your eye on the end result you want. It’s easy for lawyers to get caught up in skirmishes of the moment just because you are so competitive and committed to winning. If you tend to be reactive in this way, a good opposing counsel will take advantage of this and purposely create minor skirmishes so that you waste your energy on issues that are not critical to the trial outcome. The likelihood is that you can write on one page the key objectives you need to meet to create the conditions for a trial win. Do it. Write that one page list and keep it folded in your pocket. Take it out and review it whenever you feel yourself getting emotionally off track.
You may just laugh at this one, but really, ensuring that you can get some quality sleep may be the single best thing you can do to help your trial performance. Sleep is important for memory as well as for attention and focus. You aren’t likely to be able to get 8 hours a night in trial, but see if you can find other ways to get some rest – a 15 or 20 minute power nap during lunch or just after trial before you start prepping for the next day. There are also some great consumer devices and programs on the market now that can help quickly get your brain into a state of rest and calm, either helping you get to sleep in a few minutes or quickly getting your brain into a meditative state that is as refreshing as sleep. (I will have a blog post later that discusses some of these products.)
Avoid drinking a lot of coffee, cola or energy drinks. They rely on caffeine to juice you up, which taxes your heart and your kidneys and dehydrates you. In many people, caffeine also creates a yoyo effect where after your period of “up” energy, your body crashes and you feel worse than before. Some gentler alternatives – although still not good to overuse – are green tea and maté, an herbal drink from South America that has pick-me-up effects.
If you can’t get sleep, get exercise
Go for a 15 or 20 minute walk or do 10 minutes of yoga or qi gong exercises. (Qi gong exercises are great because they require no equipment, take minimal space, are adaptable for all levels of health and fitness, and can be done anywhere. If you want to know more, ask me.)
Learn to set limits with clients
You are in a service business, and it is easy to feel that you have to be available to your clients every time they reach out. But as you know, it can be demoralizing, draining and unproductive to have multiple contacts with clients in the middle of trying your case.
You can set limits without saying “No” in ways that increase client trust. Your client is committed to getting your best performance, so appeal explicitly to that common desire when you talk with them.
Here are some suggestions about how to appropriately set limits.
- If possible, have a meeting a few days before trial where you lay out your themes and strategy, discuss witness order, discuss uncertainties of the other side’s case, and invite your client team’s comments. (A face-to-face meeting is preferable to a call.) At the end of this meeting, say something that asks for their assent and buy-in: “Thanks so much to everyone for being part of this call / meeting. Since everyone has had an opportunity to give their input, I take it that everyone is on board with the strategy that I have outlined here. Is that right?”
Make sure you get your clients to actually nod their heads or say “Yes.” This is exactly the same tactic you want to use in jury selection to get jurors committed to following the law or keeping their promise to be impartial and listen with an open mind. Making public commitments has a powerful impact on people. When your clients say, “Yes,” the strategy becomes theirs as well as yours and they are less likely to create an oppositional situation with you later in the trial.
It might also be wise to say something like, “I appreciate you all being on the client trial support team and supporting me and the other lawyers in court.” Thanking people for their support pre-emptively and claiming them as members of your team helps all the clients get into the right frame of mind to support rather than attack you; it calls on their higher selves and values in ways that they will want to reinforce. Saying this also puts you in the right frame of mind.
These suggestions may seem simple minded to you; they are, because they are designed to communicate with our subconscious minds and emotional selves. Try this routinely and see how it works.
If you have time, have you or an assistant at that meeting write up a bullet point summary of the strategy you have presented and put in a memo or email that is sent to everyone to document it and remind them of what was agreed.
- Tell your client before trial that you need to use your time wisely to ensure that you and your team can keep on track for trial – so you want to limit client meetings or calls to once a day after trial. Set a regular time that is long enough after court ends so that you don’t have to change it if court runs long, yet soon enough after court is over so you can get the call out of the way.
- If you are not flying solo, designate someone else on your team to be a client handler who hangs out with the client on breaks, explains what is going on and assuages their anxiety. Make sure this person is experienced and skilled enough to recognize when the client really needs to talk with you rather than just needing hand-holding.
- Ask your client to set just one point of contact with you during trial so that you are not fielding multiple emails and phone calls from different stakeholders. Place the job of filtering requests for changes or updates on a member of the client team so that you and your associates can focus on what’s most important.
As the Taoists say, “The strong man seeks to master others. The wise man seeks to master himself.” (And of course, this is just as true for women.) The ultimate trial success comes not from trying to control the trial situation – which is an impossible task – but continual refining one’s mastery of oneself in the trial situation.