Friday, October 5, 2007

A Trial Lawyer's Love-Hate Relationship

In Mark Bennett's recent post, Trial Mode Off, he was describing his love-hate relationship with the work of a criminal trial lawyer. Mark and I are totally simpatico on this. Mark writes:
We prepare and prepare and find ourselves ready or at least ready to announce ready, our loins girt, our witnesses subpoenaed, our files organized, only to be told to come back again in a month or two or three. Sometimes it's a blessing -- there is often one last little thing left undone on the eve of trial, and the delay allows us to do that last little thing and discover another last little thing left undone on the next eve of trial.
I'm always amazed at the number of things we think of during trial preparation to shore-up our theories, evidence, and arguments. Like Mark says, sometimes it is a blessing to get "reset" so we can follow-up on some of the things left undone. Mark says further:
Trial preparation is work. It's not digging ditches, but it requires a lot of energy to do right. In addition to planning strategies for jury selection, opening statement, cross-examination, direct examination, and closing arguments I dream up trial motions, research trial briefs, and write proposed jury instructions. At the same time I'm marshaling my witnesses, gathering my equipment, and rescheduling the hundred other things that might otherwise threaten to intrude when I'm in trial.
It seems the trial lawyer's creativity mode goes into overdrive during trial preparation. On many cases I maintain an "idea book" that includes space for a "to-do" list, jury selection ideas, opening statement, direct and cross-examination ideas, theories, legal research, jury instructions, rebuttal, closing, etc. I find the idea book is a great way to keep things organized. Mark continues:
I'm also preparing myself physiologically. My body shifts into survival mode. A steady trickle of adrenaline drips into my bloodstream. I don't need as much sleep. I might wake up at four in the morning with an idea and write it down. Then I might slip back into sleep, or just spend the rest of the morning thinking about the case.
I don't eat right, sleep right, or act right when I'm winding up for trial. Please understand I enjoy eating, sleeping, and acting right. But the adrenaline drip is like a itch you just can't scratch.
The people who live with me see me slipping into trial mode and, since they've been through it before, prepare themselves for the trial.
My people simply get out of my way. I don't like that either. My kids are not quite old enough to understand it. My wonderful wife simple endures it. Since Mark's wife is also a lawyer, hopefully she understands it somewhat better. He says further:
When I'm in trial, losing is not an option. It's too late to red-team the case; what I call (and Scoplaw calls) "trial psychosis) takes over; I put on what Gideon calls trial blinders. In my mind I have a response to every prosecutorial argument and objection. My advocacy couldn't possibly fail to raise a reasonable doubt in the mind of any juror with a brain. I'm Clarence Darrow, Earl Rogers, and Alan Shore rolled into one. The things left undone are unimportant; I have everything I need to win. I'm tuned in to every nuance of every word everybody says. I'm a mind-reader. The courtroom belongs to me, and I'm the best lawyer in it. I'm feeling sorry for the prosecutor who has to face me. I'm a superhero.
I am totally there. I can't figure out why everyone in the courtroom doesn't see things my way. The courtroom does belong to me and I am the best lawyer in it. Like Mark, when I walk in I have everything I need to win. Last week, though, Mark had to turn off the switch:
Click. The adrenaline drip is disconnected. The hundred things rescheduled can now be dealt with. The witnesses will have to be marshaled again later. My family has me back. And I have to shift back from trial mode to ordinary-life mode. This afternoon I took a three-hour nap. I feel like an ordinary human being again. Almost.
Trial mode is hard. I don't really like it. I like being an ordinary human being. But after it's over I look forward to doing it again. Crazy! That is the love-hate relationship defense lawyers have with trial work. Thanks for the post, Mark.

No comments: