Being a trial lawyer nowadays is tough work. The law is a conflict-ridden profession. We are constantly fighting with each other and trying to outdo each other. So how do I deal with this situation in the courtroom? I have to remember that I am not in control, to stay centered, and to not let distractions keep us from our goal.
9 Ideas That Help Me In The Courtroom
Breathing: breathe from your belly to stay relaxed. Take a few deep breathes before you enter the courtroom
Remain Relaxed: be aware of the tension that fills a courtroom. Staying loose will help your muscles stay relaxed which is so important in dealing with stress filled situations
Stay Centered: we need to think of the trunk of our body as it’s center. Breathing helps us stay centered. We need to stay aware of our center. This is similar to what is taught in the martial arts. Be aware of your body posture so as not to be knocked off balance metaphorically
Let Go of Fear: we need to stay in touch with whatever spiritual contact we have- meditation, prayer, or other forms of belief. By putting ourselves into this frame of mind before we get into a trial “battle”, we will perform better. Let go of the fear of losing
Do Not React: it is so easy to turn on the defense attorney and argue after he or she makes an objection- especially if things get personal. But by staying focused on what we are looking to accomplish, we can not be thrown off track by our adversary
Maintain Concentration: this is similar to focus but you have to keep your mind directly on what you are doing. You can’t let your mind wander. Do not think of what is going on at the office, what is happening in your personal life. Concentrate on what you are doing
Stay In The Moment: this is similar to maintaining concentration but with a slight difference. Lawyers often get ahead of themselves and want to start asking questions anticipating what is going to happen in the next few minutes. This is not good. Stay in the present; this will increase your concentration and listening skills which will make you a better advocate
Listen Carefully: if you get wrapped up in your own thoughts you could miss what the witness or the judge is saying. Listen carefully so that you can follow the meaning of the words. You cannot focus on two things at once, although we often times try to do it by bouncing rapidly from one subject to another. This gets us in trouble.
All Things Happen For a Reason: this is the guiding principle of my life. Once I recognize I am not in control, I can roll with the punches and go with the flow. Stay in touch with the principle that things are happening for a reason. This keeps us centered in the present moment, so we are relaxed and unafraid
One of my goals in 2010 is to increase the number of public speaking engagements I perform. I am happy to announce I have taken my first step toward this goal as the featured speaker for “2010 Ethics Hot Issues” to the North Carolina Advocates for Justice on Friday, February 19, 2010.
Location: North Carolina Advocates for Justice Headquarters in Raleigh, North Carolina, 1312 Annapolis Drive, Raleigh, NC 27608.
Time: 9:00am- 1:15 p.m. Registration is at 8:00a.m. My presentation begins at 12:15pm.
CLE Credit: The entire program will qualify for 4 CLE hours (3 hours for ethics and 1 hour for substance abuse/mental health). Reference www.ncaj.fastcle.com for registration information or call (919) 832-1413.
The proliferation of mediators and mediations is obvious. Any case that doesn’t settle is a “failure.” The pressure to settle cases is so intense that there is almost a sense of guilt when we have to go to trial. Yet, we continue to evaluate plaintiffs’ PI and employment cases on the basis of what a jury will award.
How can we make such an evaluation if there are so few trials anymore?
4 Factors In Going To Trial or Not
Mediation: are we trial lawyers, or are we simply becoming negotiators?And this negotiation, is it like poker? Is bluffing one’s way through a mediation with misstatements and outright lies the way we properly resolve cases? I sometimes tell mediators that some cases need to be tried and there is nothing wrong with a mediation that ends with a decision to proceed to trial. Rarely does a mediator agree with this. They “failed” because we are going to have a jury trial to resolve the case.
Expense of Trial: the increasing expense of trial is well-known. Trial requires expert testimony, and experts are becoming increasingly expensive and are often treated with hostility by judges who see them as nothing more than paid advocates. In addition to experts, lawyers now bear the expenses of court costs including reporters’ fees and other fees that traditionally were borne by the courts
Advertising: advertising is a deterrent especially when it leads to treating the law as a business and not a profession. Lawyers who are in the “personal injury business” for the sole purpose of making money will never step foot in the courtroom. If we judge our success solely by how much money we make, then who cares about a trial? We are perhaps more interested in how much money we make than whether we’re doing right by our clients or even chasing that elusive concept of “justice.”
Politics: politics, particularly the advent of tort reform, has become an increasingly serious problem for plaintiffs’ lawyers. It’s become worse in the last 10 years. Conservative court rulings and the failure to make fundamental changes in our medial malpractice laws make it increasingly difficult to try cases: it is outrageous that we haven’t changed the medical malpractice tort reform laws passed 35 years ago. With a $250,000 MICRA cap on general damages and a cap on our attorneys.
In a 1999 article for the American Board of Trial Advocates Journal I wrote:
“I sometimes feel like I am a dying breed – soon to become extinct. I am a trial lawyer who has spent 37 years in the courtroom. I have tried over 150 jury trials to verdict. I have been in ABOTA since 1976 when I certified that I tried 100 jury trials after about 15 years of practice
But times are changing. Good trial lawyers today who have been in practice for as long as twenty or twenty-five years will have tried significantly less cases than those of us who started our practices in the 60s and early 70s.”
Why Fewer Jury Trials?
Opportunities: there are simply less jury trials being tried
Arbitration: more cases are being arbitrated
Mediation: everything goes to mediation.
Skill Sets: our negotiation skills are becoming more important than our trial skills
10 Years Later: Concerns Are More Acute Now
With a lack of trial experience comes a lack of ability to easily and competently try a case before a jury. Judges complain frequently that lawyers are not only inexperienced, but frankly ineffective and sometimes woefully inept in the courtroom.
Younger Lawyers Lack of Experience
A byproduct of this problem is the lack of civility between lawyers. One factor in this civility problem is that younger lawyers don’t have the experience of really understanding what a jury trial is like and hence have a great fear of going to trial.
Ultimately, they mask this fear by aggressive litigation tactics in the hope that they can bluff their way out of actually going to trial.
“Michael, I met a man this weekend. He has been married twice and has just separated from his wife. He’s had alcohol problems. But I have this sense that I should call him. It seems weird don’t you think?” – Lilly Gwillam
November 10, 1990 I was with my friend, Ed Caldwell, who helped me quit drinking at my intervention. We were attending the annual CTLA convention in La Jolla, California; the trial lawyers were having a special late-night candlelight ceremony for those in recovery.
There were five of us who knew each other well in attendance. Steve Pingel, a good lawyer and a friend, was there with a woman. During the ceremony, each of us talked about our experiences drinking and where we were now.
I talked about the reason I left Liz, leaving her with integrity, and how I felt the Universe would take care of me. When I was finished, the mystery woman spoke up:
“Gary I just want to tell you that I really appreciate your integrity. So many men leave their marriages for another woman. You left because you knew it was the right thing. . . I really wish you the best and simply wanted to say that.”
Are trial lawyers preparing for battle or stage when they go to trial? Many fine trial lawyers still envision trial as battle. I am guilty of talking about “still having a few rounds left in me” at this late stage of my career. If you are going into battle you have to be ready: Energized, fired up, ready to throw a few punches and take a few hits.
Q: Isn’t that a good way to prepare for trial? Or is it stressful and counterproductive?
Trial as Sport: Stress and Conflict
Stress and Conflict: we are in a conflicted profession full of stress and conflict and this wears us down
Drain: constant stress and conflict takes away our energy
Health: loss of energy through this conflict compromises our immune systems
Ultimate Conflict: if you visualize yourself as bruised and battered after each round, then trials become exhausting and you don’t perform at your peak
Trial as Art: Resolution Through Relaxation
Resolution: is possible by deciding the best and most effective way to try a case
Relaxation: if you are more relaxed and at ease, your energy will stay strong
Fear: you also have less fear and that is very important to effective trial practice. Actors don’t need to fear being bruised as boxers do
Efficiency: by changing your thinking from “trial as sport” to “trial as art” you are more efficient, less fearful and ultimately more successful
Enjoyment: looking at trial as a art form is a lot of fun
The lawyer’s goal, in a trial, is to present the client’s case as a cohesive story that will grip the audience’s attention. The “audience” is small, consisting of only 12 people: the members of the jury. If the trial is thought of as a stage play, as posited in part 1, then what is the most interesting difference between the theatre and jury trial?
Competing Plays: Reaching The Audience
Unlike the theatre where only one play is on stage at a time, the lawyer’s “play” competes with another play taking place at the same time and on the same stage.
The “Other Play”
Staged by another director (the defense attorney)
The theme is different
Another set of “actors” the defense attorney’s witnesses
Audience Decision
The “audience”, our 12 member jury, must then decide which play they like best. Their “reviews” of the lawyer’s work are in the form of a jury verdict which tells who won and who lost.
“American Idol” : The Judge
What about the judge? Think of the popular TV program, “American Idol.” It’s no stretch to think of it as theatre. The “audience” ultimately chooses the winner but judges:
Handle the tryouts (pretrial motions)
This determines if the contest even makes it to the “show” (the trial)
And their (judge’s) very vocal opinions during the show (bench rulings) can influence the “audience”
For most of my career I considered a jury trial akin to a boxing match. Mano a Mano. I could score a knockout or get a decision, or I could go down for the count. Somebody was going to win and somebody was going to lose.
However, I began to change my mind about trials. Instead I began to see trials as ways of communication as opposed to violent conflict. I began to think of trial as art; as a creative expression.
Trial As A Stage Play
A trial may best be envisioned as a stage play with the following roles:
Producer: the trial lawyer is the producer who puts up the money (case costs) and decides which play (case) will go on stage (to trial)
Director: the trial lawyer is also the director who decides how the play is to be presented
Cast: while the directors cast of characters consists of actors, the trial lawyers cast of characters consists of parties and witnesses
The Production: Telling The Story
Instead of actors speaking their lines from a script, the witnesses give their testimony based on the truth. The following are the elements of “The Production”:
Testimony: the way actors speak their lines is an important part of the production, just as the manner which the witnesses testify is an important part of the trial
Story: by speaking their lines, the actors tell a story, just like the witnesses tell a story through their testimony
The Production: the director (the lawyer) decides which themes to emphasize and the order in which actors (witnesses) will be on stage (on the stand)
Director and Lawyer: like the director who stars in his own movie, the lawyer is also an actor who is on stage during the entire trial
My transition to sobriety was not easy. There were changes and challenges I faced during this transition. Along the way, I realized that spirituality played a major role in my recovery. Helpful principles and concepts fueled my new found inner peace. Concepts like Karma “What goes around comes around”, principles like “Ask and you shall receive”, “All things happen for a reason”, “There are no coincidences”, and “Live in the present” helped me.
I read 250 books, during this time, that provided the basis for my spirituality and feeling that we are all connected. This video is an excerpt from chapter 22 “Changes and Challenges” in my book Getting a Winning Verdict In My Personal Life: A Trial Lawyer Finds His Soul:
A Message of Hope
If you or a loved one is challenged with addiction, alcoholism, or stress please consider purchasing my book. My experiences and story of triumph over addiction and alcoholism could provide extra support in the fight to take control of your life or that of a loved one.
“I drank the first scotch and started the second-it wasn’t the same”
My intervention was an awakening. Something had happened that changed my life- I had been publicly humiliated! I felt like I had been slapped in the face. There was no more kidding anybody else. No more kidding myself about how serious my alcoholism, and it WAS alcoholism, was- there was no more joking.
A Message of Hope
If you or a loved one is challenged with addiction, alcoholism, or stress please consider purchasing my book. My experiences and story of triumph over addiction and alcoholism could provide extra support in the fight to take control of your life or that of a loved one.
Recipient of the Public Justice Foundation’s Champion of Justice Award 2009, Gary Gwilliam mentors attorneys on such challenges as alcoholism, stress, work/life balance, and dealing with losses.
One of my goals in 2010 is to increase the number of public speaking engagements I perform. I am happy to announce I have taken my first step toward this goal as the featured speaker for 
