How Trial Skills Can Help Your Case Even If You Never Make It To Trial
By: Diana A. Sada, Trial Attorney, Evidence Lecturer
Editor: David C. Schott, Trial Attorney, Professor of Law
It is true. Most cases settle. Most cases never go to trial. Most lawyers never see the inside of a courtroom. So why should you learn how to present a case for trial? Why should you spend so much time learning how to effectively cross examine a witness, properly lay foundation, or conduct an efficient direct examination? Why shouldn’t you, instead, focus on learning how to write better, negotiate better, mediate better, and arbitrate better if that is where the vast majority of your legal career will be spent?
The obvious answer is: BECAUSE YOU ARE A LAWYER!
And, with that comes the possibility that one of your cases may end up in trial. However, with statistics against that likelihood, is it a waste of time to invest in learning trial advocacy skills? No. Because possessing trial skills strengthens your case whether or not the case proceeds to trial.
Here are three reasons why you should learn these crucial skills irrespective of statistics:
(1) If you do NOT know how to do a trial, your opposing counsel will take you there.
Your inability to do a trial is not going to remain a secret. Your opposing counsel will take that into consideration in evaluating whether to accept your last offer. What incentive does your opposing counsel have to take your offer if he or she knows that you will fold on the courthouse steps because you are too scared to go inside?
Additionally, trial skills are as valuable as a large litigation budget. For example, if you are a plaintiff’s lawyer and your client has a small legal budget (or you for that matter), your opposing counsel may depose everyone and their neighbors simply to hike up costs and force you to settle for pennies on the dollar. If, however, your opposing counsel believes your financial health allows you to take the case to the Supreme Court and back, he is more likely to disengage from those tactics. In this example, you did not necessarily use your healthy budget. Rather, the healthy budget helped your case.
Trial skills play the same role. You may not have to use them, but the mere possession of those skills makes opposing counsel wary of rolling the dice at trial. Your reputation as a “force to be reckoned with” inside the courtroom will make opposing counsel think twice before he turns down YOUR settlement offer months before trial.
(2) If you do NOT know how to do a trial, how can you fully advise your clients on how to avoid one?
When you first accept a case, you should be evaluating its strength without letting emotion cloud your evidentiary filter. Your client could have been wronged in a very egregious way. However, if, for some reason, those facts are inadmissible, failure to foresee that inadmissibility may lead to misevaluating the strength of your case, risking your client’s time and money. When you first accept a case, you need to think about the ultimate shape of that case in front of a jury after it has gone through the filters of the Rules of Evidence. Playing Devil’s advocate and discussing the weaknesses and strengths of proceeding to trial will allow you and your client to make a well-informed decision.
For example, a client comes to your office and says: “This company ruined my life. They know that they should have fixed that staircase before I fell and broke my entire body. The reason I know that is because they fixed the stairs immediately after my accident. Not only that, but this company’s owner is a thief. No one likes him. So clearly, I have a great case. Right, Mr. Lawyer?”
You might think: “How can a jury possibly find in that thief’s favor and not in favor of my client?” If you know the Rules of Evidence and how to present a case for trial, you know that you have to look beyond the actions of the “bad guy” in evaluating your case because chances are, many of those facts may not rise to the level of admissible evidence.
Finally, even if your practice is transactional in nature, such as drafting contracts or wills, understanding trial and the Rules of Evidence allows you to comprehend triable issues. That will help you better advise your clients and properly safeguard them from future litigation. After all, it is imperative for the architect to know how the stonemasons actually lay the stone.
(3) Knowing how to present a case for trial will organically strengthen your skills in all other stages of the litigation.
Presenting a case before a judge or jury at trial is an all-encompassing skill. Arguing your client’s case in closing is a skill that forces you to synthesize and simplify facts with complex legal theories. Just as a captain knowing their ultimate destination assists them in plotting each leg in their journey, a trial attorney knowing how to present a case AT trial strengthens his or her ability to navigate the channels leading to that trial. This, in turn, can help you argue your next big Daubert hearing or better draft that motion for summary judgment. Cross-examination can help you develop testimony at your next big deposition with a combative deponent. Knowing objections can help you negotiate at mediation when your opposing counsel (who does not know evidence like you) hangs his entire case on inadmissible evidence.
These are only three of MANY reasons why you should learn how to present a case for trial. It can only help you. So do yourself a favor: learn the Rules of Evidence, and get comfortable in the courtroom.
Check out the Trial Boom Courtroom Simulator to improve your knowledge of the rules of evidence and hone your trial advocacy skills. And earn CLE while you’re at it!