In a conference room nearly two years ago, I sat as a consultant to a California trial team buried behind juror notebooks, laptops, and abandoned coffee cups. Lead counsel tipped down his readers and said, “He’s a tough witness … I just hope the jury believes him.” My fingers drummed on the rim of an orange mug.
Preparing this story, I shared with Charles that 20 years ago and a very green trial lawyer, I was fortunate to have a supervising attorney say, “Don’t miss the brain injuries! Everyone always misses the brain injuries!” while shoving a rudimentary checklist at me.
My father would say, “Don’t let your lack of preparation be the opposition’s greatest weapon.” Outside the federal court building, a puff of smoke wafts from under the creamy fedora. The lawyer next to me leans in, “Your dad is a bit of a legend around here.
To jurors, a case is a story and we better know what that story is about before we start trying to tell it—or visually depict it. “Send me the visuals,” I said to the personal injury lawyer on the line. Moments later, a massive email delivered 186 digital slides. Each navy blue backdrop contained a single medical record with streams of bright, yellow highlights and bold, red arrows and circles blighting each page.
In mid-March 2020, a civil trial in Arizona’s federal district court was among the last before complete closure of the federal building due to the pandemic. The trial began before full quarantine restrictions imposed by the governor but concluded after courts officially closed. The ultimate result for the case: Plaintiff counsel calling to report, “We lost. Defense verdict.” A week later, my co-counsel attended trial call in San Mateo.
After the trial, a juror stands in a hallway outside the courtroom leaning against a wall. She and the rest of her jury had just ordered a trucking company, and unknowingly their insurance company, to pay millions and millions of dollars for the death of a young woman. The largest jury verdict ever in this courtroom.
Most lawyers suffer the self-imposed misfortune of believing that, without any real training, they know how to prepare a witness for testimony. They offer unhelpful nuggets like, "just be yourself" and follow the steps they learned 15 years ago under the tutelage of an impatient senior partner.
Nearly twenty years ago in a wrongful death trial, I was a new lawyer sitting second chair in a complex matter against the State of Arizona. The teenage son of the decedent sat frozen in the witness stand, eyes cast down, legs in grey trousers outstretched in front of him. His long arms met tightly knotted fingers in his lap.