by Ken Lopez
Well, no one ever said a trial was like a day at the beach. Except that there are a lot of similarities, if you look hard enough.
I'm just back from an annual two-week family vacation at the Outer Banks of North Carolina. My wife and I have seven-year-old triplet girls. My friend says that doesn’t sound too much like a vacation, and his point is well taken in many ways. Although anyone who has done this type of trip with young kids will have some memories that seem as if they came from a Norman Rockwell painting, there are plenty of stressful or crazy moments. Fortunately, with time, the human brain can focus on the good memories.
This type of vacation time is chaotic, stressful, and, yes, fulfilling. And that reminds me an awful lot of what I do every day — high-stakes litigation. Let’s consider how these two events are similar.
1) Other stuff comes up. I worked one 16-hour day at the beach. I had to. Two other managers were traveling, and one was slammed. I had to pitch in even if it was from 350 miles away. A long trial is no different. Often, you have to focus on other clients for a bit and you must plan for that possibility at trial.
2) Breakdowns happen. My clunky old Range Rover broke down at the beach. My wife was not pleased, but I’m always prepared for such an event. I have towing coverage that brought the car home, and I enjoyed driving on the beach in a four-door Jeep Wrangler instead. Things break down at trial too, often at the least opportune times. If you're not mentally prepared for that, if you haven’t planned for it, you're going to look bad at trial. See, 12 Ways to Avoid a Trial Technology Superbowl-style Courtroom Blackout.
3) Surprise is the key. My daughters are well behaved, but they need to see the unexpected from time to time, whether it’s an unusual shell on the beach or a funny kind of ketchup bottle. If they don’t have that, they become moody and distracted. Judges and jurors react similarly at trial. If you don't surprise them, they become bored and antsy. Learn the power of surprise. See, Could Surprise Be One of Your Best Visual Persuasion Tools?
4) Busy is hard to predict. On vacation, you can plan a quiet day, but it doesn’t turn out that way. In our trial business, like many litigation-focused firms we are often less busy in August. That’s not true this year. We are quite busy.
5) People get bored quickly. Whether kids or jurors, it’s not just about surprise when keeping them engaged, it’s about intentional entertainment. Put that into your daily plan. These days, videogames are everywhere, they’re usually not expensive, and they’re fun. Video presentations for jurors are much more expensive, but they can be entertaining as well. See, Lights! Camera! Action! Verdict! A Trial Team's Responsibility to Visually Entertain and 12 Things Every Mock Juror Ever Has Said - Watch Anytime.
6) You need a backup plan. It can rain all day at the beach. A motion in limine can be rejected. You have to plan not just for tech failures but also for things not going the way you want. See, 24 Mistakes That Make For a DeMONSTERative Evidence Nightmare
7) Eat well. If you don’t eat well on vacation, you won’t have energy to do things you want to do. The same is true at trial. While you may think you just want comfort food, you have to eat like a warrior if you are going to be successful in battle.
8) Exercise. On vacation, you can start any day the right way with a run, a fast walk, or even some good stretching. At trial, don’t neglect your body. You are more focused, happier, and better equipped to face adversity if you’ve exercised that day. See, 10 Signs the Pressure is Getting to You and What to Do About It
9) Good movies work. My wife and I can’t keep the kids entertained the whole time. That’s where AppleTV comes in. A good movie captivates and buys mom and dad some down time. In trial, if you fail to create drama that follows the pattern of a good movie, you’ll probably lose. See, Are You Smarter Than a Soap Opera Writer?
10) Stories trigger memories. I’ll remember the stories from this trip for a lifetime. Think about that. Many have already been reduced to family lore. Jurors are likely to remember your case only if it’s in the form of an easily understandable story. See, Storytelling Proven to be Scientifically More Persuasive
11) Learning really works only if it’s fun. It may be summer, but the kids have to keep learning right? Well, maybe. If you give them flashcards or force them to read books, they’ll probably say no thanks. What if you ask them to count how many different types of birds they can see in the park? Again, jurors will learn the technicalities of software engineering for a patent case – if it doesn’t seem like work. See, How I Used Litigation Graphics as a Litigator and How You Could Too
12) Know your environment. You probably wouldn’t plan a beach vacation without knowing in advance not only where the beaches were, but also the location of parks, restaurants, gas stations and other necessities. Similarly, you wouldn’t plan a trial without knowing the physical setup of the courtroom, the judge’s predilections and so on. See, 21 Ingenious Ways to Research Your Judge
13) Don’t under-budget. You don’t need to spend a fortune on a beach vacation, but you need to plan it in advance to meet everyone’s needs. In trial too, make sure you ask for the budget that you need in order to win. See, In-House Counsel Should Make Outside Litigation Counsel Feel Safe
14) Start strong. The first day of a vacation often sets the tone. First impressions remain vivid. A juror’s trial experience should be the same way. Jurors’ thoughts about a case often are fixed by the first good version of the facts that they hear. Download: The Opening Statement Toolkit — Complimentary Download
15) Emphasize multimedia experiences. We went to aquariums, rode on air boats, and spent time on the beach. It didn’t get boring. Jurors like to get information in many different ways – from live witnesses, from video and audio, and from carefully designed graphics. See, How to Handle a Boring Case
16) Give people room to make their own stories. Kids will draw the damnedest and most interesting conclusions from a vacation. Similarly, you don’t have to drag a story into jurors’ minds. You can suggest all the elements and let them fill in the rest. See, Storytelling at Trial - Will Your Story Be Used?
17) Push the boundaries. Sometimes it’s a great idea to challenge kids and to expose them to experiences they’ve never had. Jurors can react the same way. Sometimes a novel approach or an unusual presentation of data is just what they need.
18) Don’t take yourself too seriously. Make sure the vacation is fun, not just a way to check off a box that you’ve had a vacation. Of course, trials are extremely important events, but if things aren’t perfect, just know that you’ve done your best. Here's a 30-second video of my kids' daily obsession - the ice cream truck - that's sure to put a smile on your face.
Other articles and resources related to trial preparation, thoughtful mock trial testing, persuasive litigation graphics and trial technology considerations from A2L Consulting: