What I Wish I’d Known Before My First Solo Trial

Before my first trial, an older trial attorney told me that three things happen after you speak to a jury. You find out what you wanted to say. You learn what you did say. And you realize what you should have said.

It happens to all of us.

Your first trial, much like your first oral argument, is going to be one of the worst you will ever do. Possibly the worst. I am not telling you that so you will relax about it. I am telling you because the alternative is finding out mid-trial and deciding something is wrong with you.

None of that means you should prep less. You should be doing extra prep. The first one is going to be rough no matter what. Preparation is what decides whether it is rough and competent or just rough.

The room is people, not procedure

Law school teaches trial as a sequence of steps. The steps matter, but they are not what decides anything.

A courtroom is a judge who has read hundreds of files, a clerk and a bailiff who run the room and know more about how it actually works than you do, and jurors or a bench officer forming impressions in the first minute. Everyone there is tired and behind schedule.

Almost everything that helps you comes from respecting that reality instead of fighting it.

• Get there early. Not on time. Early.
• Be decent to the courtroom staff, including on a day when someone is short with you. They control things you do not: when your matter is called, whether the judge hears you are ready, whether a small problem becomes a big one.
• Watch the calendar before yours if you can. Twenty minutes of watching that judge run their courtroom is worth more than another hour with your outline.

Own your organization system

Everyone organizes differently and there is no correct system. What matters is not the method. It is whether you know it cold.

If your paralegal built the binder and you are searching through it on the first day of trial, you are in the same position as the lawyer flipping through a random stack of paper. The system only helps if you are the one who built it.

So build it yourself. You should be the master of your own organization, and the act of assembling it is a substantial part of how you learn the case. Delegating that away feels efficient right up until the judge asks for the exhibit and you cannot put your hand on it.

Judges decide faster than you think

This is the hardest thing for a new lawyer to accept.

The judge is not waiting to be persuaded across forty minutes. They form a view early and then test it against what you say. Which means:

Lead with the thing that matters. Then support it. Never build to it.

Two related truths that took me too long to internalize:

• Best evidence beats most evidence. Three strong exhibits, well organized, beat twelve mediocre ones. Volume reads as weakness, because it suggests you cannot tell which of your facts is the good one.
• Organization wins. If the judge has to work to follow you, you have already lost ground. Get to the point. Long winded loses them, and once they are gone they do not come back.

What actually loses cases

Not ignorance of the law. Newer lawyers are usually over prepared on law and under prepared on everything else.

The one I see most is not listening.

People get so attached to their outline that they stop hearing what the judge is actually asking. They keep returning to the point they decided in advance was the winner, while the judge has moved on and nobody in the room is worried about that point anymore. You are not arguing to the court at that stage. You are reciting at it.

The same failure shows up on cross. You are so focused on your next question that you miss the answer the witness just handed you. The best moments in a cross are almost always improvised off an answer, not scripted.

The rest of the list, in rough order of how often it costs people:

• Arguing with the judge after you have lost the point. You get one clear statement of your position. Make it, make your record, move on. Continuing burns credibility you will want later in the same hearing.
• Reading. Reading your outline to the court tells everyone you do not know your case.
• Letting emotion drive. It is hard not to get emotional, particularly when opposing counsel is doing something unfair. Do your best anyway. Emotion makes you react poorly, and it makes you present poorly, which is the more expensive of the two.
• Trying to win every point. Concede the ones you should. It buys real credibility on the ones you actually need.

Read more: preparation that actually transfers to the courtroom

The deeper version of getting ready:

• Write a two sentence theory of the case and test it on someone who does not practice law. If they cannot repeat it back, it is not a theory yet.
• Build the exhibit list yourself and get to the point where you can navigate it without looking down.
• Write out only your first line and your last line. Leave the middle in bullets. Scripted middles are what turn lawyers into readers.
• Prepare for the three questions you most hope the judge does not ask. You already know what they are. That discomfort is the signal.
• Decide in advance which facts you will concede so you are not making that call under pressure.
• Run the logistics. Parking, security line, which floor, whether exhibits need to be pre-marked in that department, and what that particular judge requires. These are the things that actually make people late and rattled.

When you do not know how a court works, ask

California courts vary enormously by county, and within a county they vary by department. There is no book for this. The practices that matter are the local ones, and the fastest way to learn them is embarrassingly simple.

Ask somebody in the room.

There are usually plenty of lawyers sitting around waiting for their matter to be called, and lawyers, as a group, enjoy having their egos stroked by explaining how their county really operates. That instinct is useful to you. Find someone who does not look busy and ask.

I have never once seen that go badly. Nobody thinks less of you for asking a question that felt too basic to ask. The alternative is learning the same thing in front of a judge and a client, which is a much more expensive classroom.

Nerves

For some people the nerves are the whole battle. I have been up there with my hand shaking.

Three things that actually help:

• Cut the coffee. The adrenaline is going to give you all the boost you need and then some. Do not add to it.
• Breathe. This sounds like nothing and it is not nothing. When you stop breathing properly your stress response spikes and the thinking part of your brain goes offline right when you need it. You will not notice it happening. Deliberate breathing is how you get your frontal lobe back online.
• Practice. This is the real answer. If you know your material front to back, then whatever goes wrong, the nerves wear off as you keep talking and you settle into doing what you did in practice. That is the whole mechanism. You are not trying to feel calm. You are trying to be so familiar with the material that calm becomes irrelevant.

Everyone tells you the nerves go away with experience. They mostly do not. They change shape, and you get better at working while they are there.

And prepare for the moment something goes wrong, because something will. A ruling you did not expect. An exhibit that does not come in. A witness who says something new. The lawyers who look composed are not the ones who avoided that moment. They are the ones who had already decided it was coming.

Other pieces for lawyers rather than clients are in the for attorneys section.

This is general information for other lawyers, drawn from experience. It is not legal advice and it is not a substitute for your own judgment about your own case.