The best way to have success at trial is to be prepared. We all know that. But what do we do about the unexpected things that happen during the trial? The typical response to that question is that if we have thoroughly prepared, then we are up for any contingency. That’s an easy thing to say and hard thing to do. But we do it and that’s one of the many things that make trial practice a difficult life.
Many crazy things happen during a trial. That is a given. From running out of strikes during jury selection to the judge charging the jury with the wrong law, the list of possibilities is endless. You can fix some of these problems during the trial. Some, you can fix on appeal (but that doesn’t help your client today). Others, can’t be fixed and you have to deal with them. Sometimes it’s as if the whole procedure is possessed. How we deal with problems during the trial is what separates good trial lawyers from great ones.
I saw a baseball game the other night. The home team was losing. They could not get a hit. During the seventh inning stretch, a couple of the older players took all the bats and threw them out of the dugout. What a sight. All these bats being tossed out on the field. I don’t think anyone realized what was happening or knew what to do. The batboy didn’t know what to think but he knew what to do. He dutifully picked up the bats and returned each one to the dugout. The players each received their bat and the team went on to not only hit, but score eight runs and win the ballgame.
We can’t throw witnesses or the judge out the courthouse window, but we can figure out a way to overcome the hard times during a trial. Like the young ball players with the “new” bats, we have to figure out how to exorcise our demons. The solution is as unique as the lawyer trying the case.
