The very best trial teams in the world have only one real secret for success. Like many of life's foundational principles, it's painfully simple to describe, but it’s painfully hard to execute.
The winning secret of the very best trial teams is, simply, preparation.
Of course, I'm not talking about the everyday kind of trial preparation that goes on a few weeks or a month before trial. I'm talking about a level of trial preparation that is so best-in-class that it separates America's extraordinary trial teams from merely great trial teams. Perhaps 1% of all trial teams function the way I'm about to describe. After three decades of supporting, coaching, and learning from the top 1%, I promise nothing else is more correlated with winning than preparation— not good facts, good law, a friendly judge, a smiling jury -- nothing.
Just as a world record-holding athletes prepare at a level that far exceeds what professional athletes do, the same is true for world-class trial lawyers. In the last 30 years, I've seen behaviors like:
- A trial team conduct 8 mock trials - for a bench trial!
- A trial team practice an opening over 100 times.
- A trial team start working on their opening statement more than a year before trial.
- We designed a trial team assessment tool that helps you see how your team compares to the very best: http://www.a2lc.com/blog/10-criteria-that-define-great-trial-teams-trial-preparation-assessment-tool
For the most part, the very best trial teams generally know the outcome of their case before it starts. They tested it enough in an adversarial mock trial format. They've practiced enough. They seek feedback over and over.
I thought about the value of preparation recently remembering a time when I watched two separate trial teams try two separate cases that just happened to overlap in schedule. One had prepared extensively for nine months, and the other had only seriously prepared for a few weeks. You already know the outcome because it was the only logical outcome. Preparation beats everything and under-prepping for trial yields painfully predictable disasters.
So why doesn’t every trial team prepare like the best in class teams? I think there are primarily two reasons: fear and a lack of understanding about what exceptional preparation looks like - after all, none of us were taught about any of this in law school. As far as the fear part goes, I think it is primarily client-driven, which is to say; it is almost entirely budget-driven.
Teams who are not in the top 1% of trial teams ask for permission to prepare for trial and if the client says no they don’t do it. Listening to the client seems like good client service. After all, the client is always right, right? Wrong. Very, very, very wrong.
Hard as it may seem to believe, the best trial teams won't take no for an answer. Instead, their commitment to winning is the very best reflection of their commitment to client service. They will prepare for trial no matter what. They also won't work with a client who tries to prevent trial preparation.
So, you might ask, "how do I get preparation right?" Find a firm like A2L Consulting (one of three or so high-end and national litigation consulting firms) who employ former trial lawyers and experienced jury consultants and use those individuals as your trial prep coach. Tell them you want to practice and refine your opening statement until it is as perfect as it can be. That is always the right starting place. We've written about this before in articles like:
- Your Coach Is Not Better Than You – in the Courtroom or Elsewhere
- Accepting Litigation Consulting is the New Hurdle for Litigators
- Litigator & Litigation Consultant Value Added: A "Simple" Final Product
- 3 Ways to Force Yourself to Practice Your Trial Presentation
- Practice, Say Jury Consultants, is Why Movie Lawyers Perform So Well
I hope these resources are helpful to you as you think about your next trial. Please do conduct a mock trial. Please do openly practice. Please do start preparing AND practicing your opening statement many months in advance of trial. Please hire a coach to help facilitate these things. A2L has many great people who can help, and I would be genuinely happy to recommend someone (my email is lopez@A2LC.com) here or even outside of A2L that would be a great fit for you and your team.