My daughter is a figure skater — the kind of skater who practices six days a week. Each one of the complex jumps that a skater executes involves dozens of fine-motor movements that need to be encoded into the skater’s muscle memory. It takes a ton of practice. One of my daughter’s coaches once made the remark, “Don’t practice until you succeed, practice until you cannot fail.” In other words, once you finally land that jump, you aren’t done. You may not even be halfway there. You haven’t succeeded, the coach says, until you land that jump at least nine times out of ten. You shouldn’t be satisfied until not landing it becomes an unusual occurrence that requires investigation.
Great trial persuasion and effective witness testimony isn’t figure skating, but that practice ethic arguably still applies. Advocacy can be undermined by a “good enough” attitude, and practicing something is the best route to excelling at it. Granted, attorneys and witnesses won’t always have time for an ideal number of run-throughs, and for lawyers, the billable hour might put a limit on how much you do. But within those constraints, do what you can. The extra sessions of on-your-feet and out-loud run throughs of your opening statement or oral argument will pay off. The full experience of the mock-deposition or trial testimony will make the witness vastly more effective. Knowing that, we can’t always practice as much as we want, we need to maximize what we have. In this post, I will share the top four elements of effective practice.
Many of us are used to multitasking. My daughter has been known to do her homework online while at the same time shopping or chatting online. For low-stakes activities, it works. It may even help her to stay engaged. But for activities that have higher stakes, it helps to give your full attention. That is why it is always better to stand and deliver a speech than it is to just look over your notes, and better to fully run through the testimony, than to talk about it — you have to give it your full attention if you’re trying to execute it.
My daughter skates with greater intensity when there’s a tournament coming up. That’s only natural because the pressure of an impending deadline gives you purpose. The litigation process is usually pretty good about giving you those actual deadlines. But don’t be afraid to set them yourself. Your case may be on hold, but go ahead and say you’re going to do an opening anyway, by next week. The deposition may not be set, but tell the witness that you want the run-through on tape anyway, just to see where you’re at.
I’ve seen this problem many times: In a meeting, a witness will answer in a way that does some extraordinary violence to your case. So you stop. You talk about it, and together you arrive at a better approach. Then, instead of treating it as “problem solved” and moving on, the right response is nearly always to say, “Okay, let’s try that question again.” When under stress, we fall back on habits. And habits aren’t formed by simple understanding, they’re formed by repetition.
Some people like to practice on their own until they have it dialed in. But, as a final step before presentation, there is no substitute for having an audience. This is why, pretrial, we will often gather a group in the office so they can serve as informal “mock jurors” during a practice voir dire, and then hear the opening statement. That doesn’t just put the attorney on the spot to be fully ready for the first day of trial, it also often leads to some good questions and comments on how to improve.
Image credit: Photo by the author (his daughter’s well-worked figure skates).