Trial Mode Off


Sometimes — often — usually we prepare for trial only to have it not happen when we’re expecting it to. (“Usually” because almost no case ever goes to trial the first time it is set.) We prepare and prepare and find ourselves ready or at least ready to announce ready, our loins girt, our witnesses subpoenaed, our files organized, only to be told to come back again in a month or two or three. Sometimes it’s a blessing — there is often one last little thing left undone on the eve of trial, and the delay allows us to do that last little thing and discover another last little thing left undone on the next eve of trial.

Trial preparation is work. It’s not digging ditches, but it requires a lot of energy to do right. In addition to planning strategies for jury selection, opening statement, cross-examination, direct examination, and closing arguments I dream up trial motions, research trial briefs, and write proposed jury instructions. At the same time I’m marshaling my witnesses, gathering my equipment, and rescheduling the hundred other things that might otherwise threaten to intrude when I’m in trial.

I’m also preparing myself physiologically. My body shifts into survival mode. A steady trickle of adrenaline drips into my bloodstream. I don’t need as much sleep. I might wake up at four in the morning with an idea and write it down. Then I might slip back into sleep, or just spend the rest of the morning thinking about the case.

The people who live with me see me slipping into trial mode and, since they’ve been through it before, prepare themselves for the trial. Jennifer might ask me to finish up any errands that must be done before the end of trial, or make plans to have less help from me in the day-to-day running of the household and the practice.

Mostly, though, I’ve begun (or completed, depending on the stage at which I’m interrupted) moving into the mental state that I’m going to be in when I try the case.

Everybody has a different trial style. However we try cases, though, our mental state for trial is not the state in which we exist from day to day. For my part, from day to day I look at my cases objectively, considering the chance that I might lose, and even seeking ways that I might lose. When I’m in trial, losing is not an option. It’s too late to red-team the case; what I call (and Scoplaw calls) “trial psychosis) takes over; I put on what Gideon calls trial blinders. In my mind I have a response to every prosecutorial argument and objection. My advocacy couldn’t possibly fail to raise a reasonable doubt in the mind of any juror with a brain. I’m Clarence Darrow, Earl Rogers, and Alan Shore rolled into one. The things left undone are unimportant; I have everything I need to win. I’m tuned in to every nuance of every word everybody says. I’m a mind-reader. The courtroom belongs to me, and I’m the best lawyer in it. I’m feeling sorry for the prosecutor who has to face me. I’m a superhero.

That’s where I was yesterday afternoon. I felt as prepared as possible for trial; the things left undone were truly minuscule. I could tell that the prosecutor wasn’t as well-prepared as I was. I knew what every one of the State’s witnesses would say, and I knew exactly how it fit into my client’s story. Then the State revealed the results of some forensic tests. They would have helped me tell my story, but counsel for one of my codefendants wanted time to respond to them. So the judge continued the case.

Click. The adrenaline drip is disconnected. The hundred things rescheduled can now be dealt with. The witnesses will have to be marshaled again later. My family has me back. And I have to shift back from trial mode to ordinary-life mode. This afternoon I took a three-hour nap. I feel like an ordinary human being again.

Almost.


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