8 Good Reasons to Watch Trials
I spend at least a few hours a week watching trials. I’ve noticed that I find very few lawyers watching trials, and I thought I’d offer 8 reasons why watching trials can improve your trial practice, skills and ability.
1. We learn how to avoid mistakes that might cost us.
Making a mistake in a trial is a painful experience. Although any trial lawyer worth a salt will make mistakes and learn from them, it’s always better to learn from another's mistakes rather than your own. Are you the lawyer who objects too much or doesn’t object enough? The lawyer who turns away from the jury when arguing his or her case? Or the lawyer who fails to make the mistrial motion at the critical moment? Or the lawyer who asks the one question too many on cross-examination and is then saddled with a bad answer? You can learn as much from watching a poor performance by a lawyer as you can from a great one.
2. You can see how a case evolves.
A trial is like a movie or a play. It starts with a preview (the opening), moves into the body of the narrative (direct and cross-examination of the witnesses and presentation of evidence) and then ends with a good story (closing argument). As the case moves from jury selection to closing, you can witness firsthand how the trial lawyers makes choices and decisions as the case evolves. You can see how the in limine motions affect the evidence presented, and how the lawyer might use pretrial hearings to try out themes and theories before they reach the jury. You can see how the presentation of evidence affects the flow of the case, and whether you would have made different choices in which witnesses to present and the order that they appear. You can use the lessons from these observations in your next case.
3. You can vicariously experience the Trial Mind.
When we don’t try cases, we lose the trial edge or what is sometimes referred to as “The Trial Mind.” The trial mind is a state of mind that only comes with trial and the preparation that comes with it. It forces us to put the pieces of the trial together into a cohesive story and to organize and analyze the evidence in a way that will lead to a not guilty verdict. Watching a trial, or even a part of it, immediately immerses you in another person’s problem-solving methodology. You immediately see how the trial lawyer has decided to present the facts they have culled and discovered through their case preparation and investigation.
One thing that happens when you don’t try a case for awhile is that you lose your jury instinct that tells you which jurors to trust and who to kick. When you haven’t picked a panel for awhile, you will forget those cues to look for in choosing a jury. Here’s a good way to get back into the Trial Mind: Watch another lawyer during jury selection and ask yourself if you’d keep that juror or not. This is a good way to prepare for jury selection, if you feel a little rusty.
4. You can watch your future opponent in trial.
While it’s great to watch your colleagues in trial, it sometimes even more valuable to watch opposing counsel in trial. You will be able to see how your future opponent will try a case against you. If I have a trial with a particular prosecutor coming up, I make it a point to watch them in trial and take notes, so I know what to expect when my trial with them comes up. Professional athletes watch and re-watch videos of the team or individuals they will be opposing so they are prepared to compete against them. In the same way, we can prepare for our cases by watching opposing counsel try a case.
5. You can offer good positive feedback and constructive criticism to a colleague.
I’ve always appreciated receiving feedback from colleagues who are watching a trial. I can still remember one of my early managers who told me after watching my opening statement, “You kept saying, the evidence will prove this or that …. You know, you didn’t need to say that again and again. Just say what the evidence will show without saying that phrase!” I never forgot that and now I just state the facts of my case.
When watching a trial, take notes so you can share your ideas and thoughts with your colleague. This will help your colleague improve and enhance their skills. Most people who are serious about trial work want to improve, so they will want to hear your ideas on how they can be more effective.
I’ve sometimes received comments during trial that helped me in better examining a witness or presenting my case. Once I was told, “Juror Number 4 looks at you negatively any time you refer to the complaining witness by her first name. It was something I had missed, because I was focused on my questioning, and something that I easily corrected.
In providing feedback, be careful to remember that an attorney in trial is an attorney in trial, and he or she may not have time to patiently sit down and listen to your list of critiques of his or her performance. However, offer your comments as your constructive ideas just might save a client.
6. You can be a 13th Juror.
When a trial lawyer is in the heat of battle, it is very easy to miss things. Having a colleague watching the trial gives the trial lawyer an extra pair of eyes. You can see how the jury is receiving information. Do they look bored? Are they paying attention to the witness? Do they look as if they believe the witness? Are they sympathizing with the witness or with your client? What about the judge? Is the judge paying attention or sending cues to the jury about what is and is not important? Many times, the attorney is too focused on other things to pay attention to these small details, but you, as the observer, can look for these things and let your colleague know. Again, this may be something the trial lawyer chooses to consider, or not, but at least it is there for the trial lawyer to use.
I remember one case where a juror kept rolling his eyes anytime I asked a question. He was clearly not with me or my client. I was able to call several court observers to testify to this fact, and it resulted in the juror being removed. So it pays off to have attentive observers in court.
7. You can see if you are pushing the envelope far enough in your cases.
One of the great things about watching other lawyers try cases is you can see whether you are being aggressive enough in your defense of your client. Naturally, some attorneys are more aggressive than others, and it shows in the way they examine jurors and witnesses. I remember reading transcripts of famed political lawyer Charles Garry, who was known for grilling jurors mercilessly about their ability to be fair and their prejudices. He was very successful in weeding out biased jurors and also instilled in remaining jurors a sense of pride at having survived Garry’s “test.” While this is not necessarily my style, it was interesting to read how another attorney handled voir dire, and how we need to be really aggressive in communicating the importance of serving on a jury.
The same is true for cross-examination. I once saw a lawyer deliver a biting cross-examination that ripped an officer to shreds. She did it with so much energy and bravado, and ruled that courtroom from the moment she stood up. The cops were extremely intimidated by her. After watching her, I was empowered to be even more aggressive in my representation.
8. You can cheer on your colleague.
Trying a case in a courtroom without spectators is like giving a performance in an empty theater. Every trial lawyer needs an audience, and the jury is only one part of the trial experience. The other is the power of performance, and for that you need an audience. As they say, the more the merrier.
In our office, we have a website called Trial Watch that allows attorneys to tweet and blog about each other’s cases. If you are interested in this application, please contact us and we'll be happy to show you how Trial Watch works. By watching trials, we can help each other succeed in our cases and help provide valuable insight and feedback.