A trial lawyer must constantly re-examine and improve courtroom performance
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Trial lawyers constantly perform 0n the courtroom stage. Successful courtroom performance necessitates a combination of thorough preparation and improvisation. The preparation is needed just as any battle requires preparation. The improvisation is needed because of the need to persuade in the moment, and because of the innumerable unexpected developments in court, from judicial procedural, legal and evidentiary rulings; to witness testimony; to opponent presentations and behavior; to the client’s words in the courtroom.
Some of the best performers are repeatedly dissatisfied with their performance. Jazz trumpet giant Dizzy Gillespie knew he was great — once referencing himself onstage as a “living legend” — but apparently said that he did not even bother listening to his LP records, lest he pick up areas where he could have done better.
Some great performers did not start out great. The great, short-lived Charlie Parker — ultimately self-plagued with drug abuse — spent a summer practicing to the point of greatness, after drummer Jo Jones called Parker out for his early lackluster playing.
Some great performers are at once great but unsure of it, possibly because they demand so much of themselves. Numerous days during the shooting of The Year of Living Dangerously, masterful actress Linda Hunt thought “‘oh my God, I’m going to have to go somewhere when this film opens, just away, as far as I could get. Because I thought [my performance] was so awful.’” Instead, she won an Academy Award for her riveting role as Billy Kwan.
Trial lawyers must perform, and perform well. If they are to perform well, they should not rely on any cookbook approach to their performance, because no case nor client is the same, no matter how much at first blush the case may look similar to a previous one. Lawyers will not know how well they are performing without knowing how reliable lawyers, laypeople, jurors and judges are assessing and reacting to their performance. Lawyers can work on their cases through well-planned and well-run workshops, through jury focus groups, with jury trial consultants, and with watching themselves on video.
After all the trial preparation, the ultimate persuasion is delivered in the moment. In the end, the question is how well the lawyer persuaded.
In The Making of a Country Lawyer, by-now hugely successful trial lawyer Gerry Spence acknowledges how he bumbled along in one of his first jury trials, struggling with simple evidentiary issues. Even when he was winning in a later trial, a spectator (a law student or newer lawyer) expressed surprise that instead of Gerry’s opening or closing having the fire of the greatest orator, he started by talking about how he feared making any stumbles that might let his client down. Of course, by sharing such fears with the jury, we look more human, more honest, and more reliable, rather than someone sent over from Hollywood casting, and we release a weight from our shoulders, so that we may proceed to the heart of the battle. The lesson here is that Gerry kept persevering and retooling throughout his trial lawyer career, always focused on obtaining the best possible results for his clients.
Devotion to the client and the client’s cause ultimately drives the road to successful courtroom performance.
Jon Katz is a Fairfax, Virginia, lawyer defending clients charged with misdemeanors, felonies, and DWI/DUI charges in Northern Virginia. For a confidential consultation, please contact Jon’s staff at 703-383-1100.