Who was it that said that preparation is 97.2% of success? Probably no one (which is a shame, because it’s 98.4% true).
I don’t make a lot of promises on this site, but I’ll make you this one: if you don’t prepare for trial, you won’t win. Preparation doesn’t guarantee winning, but lack of it does guarantee losing.
But what does preparing for trial mean? Perhaps more importantly, how does one know if they’re prepared?
In answer to the first question, different files require different levels of preparation. You don’t need to make hotel arrangements for your expert if you know that the file is going to plead out, for example.
The second question is a little tougher because it is impossible to be 100% prepared. Trial practice is not for the weak-of-stomach. You know that person who sat next to you in law school? The one who wrote down every word the professor said, briefed all of their cases, and produced 100-page outlines? That’s not a trial lawyer; that’s an over-preparer. If that person went to trial, they would want to write out their opening, crosses, directs, and closing word-for-word. It doesn’t work that way.
Trials are full of surprises: witnesses say things that you weren’t expecting, judges make unpredicted rulings, your client whispers a name in your ear that changes everything – and that he should have told you 18-months ago.
So, a trial lawyer needs to be able to shift quickly, like a boxer who moves to absorb a sudden punch while at the same time positioning himself to return the blow. The note-taker can’t do that. When things start to go off-script – and they will – they get flustered. A good defense attorney uses, instead of fears, the unexpected.
But it’s a delicate balance, because you can’t capitalize on the unexpected if you don’t prepare enough. So, you must prepare your cases to a degree.
At the same time, trials don’t happen in a vacuum. You know those T.V. shows where somebody comes across a body behind a dumpster in mid-town and for the next hour of the show it seems like the entire police department and judicial system has nothing else to do but work on that one case?
That’s not real life. In real life, while you’re preparing one case for trial, you’re also thinking about the other cases you’ve set for trial, the new cases you haven’t read, the hearing you have next Tuesday, and how you really should call your mother to see how she’s doing.
So there are two aspects to preparation. One is staying ahead on the large-scale. It’s staying on top of all your cases so that they don’t overwhelm you. This is caseload management.
You also have to stay sharp on the small-scale. You have to make certain that you are doing the very best that you can for the single file that you are holding in your hands or working on at that very moment. This is file preparation.
Still need some guidance? Blonde Justice has a wonderful series on trial preparation here.