Litigators have to care deeply about losing to be good at winning, say those who know. And since the stakes are so high at trial, most lawyers experience pre-trial jitters.
So, how can they make sure their escalating stress levels don’t render them a complete mess before they even walk into the courtroom? There are some simple tricks.
Corporate commercial litigator Kate Broer has seen more than one lawyer become so paralyzed with fear about a looming trial that they’ve actually entered a state of denial. They continue to count on the increasingly slim chance of a last-minute settlement, and fail to prepare for what is fast-becoming inevitable, says Broer, a partner at Fraser Milner Casgrain LLP in Toronto.
“When you’re down to the crunch, and there hasn’t been sufficient preparation, that’s when crisis happens,” she says. “So, to be prepared, whether it’s a one-day trial or a four-week trial, the time to start thinking about it isn’t the day before, it’s many weeks before, and that will help alleviate stress going forward.”
After spending an hour doing a pre-trial checklist for a one-day trial, you may figure out that there’s not much to do. But your anxiety level will spike as the trial approaches, if you “haven’t even covered off that you don’t need
to do a whole lot,” she says.
Broer relies on experienced clerks and junior lawyers to keep checklists so she can track, for instance, whether Evidence Act notices are out; requests to admit have been put out or responded to; and whether she’s thought about all the summonsing issues she may have with witnesses.
“I use them as a check, almost as a second guesser, to make sure all the things that need to happen have happened in the background,” she says.
Broer also collects all her pre-trial thoughts in one easy and accessible place and keeps a binder or notebook for each trial.
She also suggests doing pre-trial research on the judge who will be sitting at the trial by reading past decisions and talking with lawyers who’ve appeared before him/her. The judge is your audience (along with the jury if there is one), so the more you understand about them, the more effective you will be, she says.
“You may learn that a particular judge is a stickler for the rules, which is just fine, but then you can make sure you are prepared for that,” says Broer.
“Or you may learn that a particular judge runs a fairly loose court, and it can give you some sense of the tone and demeanor that you should take in the courtroom.”
And, if you find out that the judge has heard 50 similar cases and decided every one the other way, “you may have to think about whether you’re being creative enough in your approach or distinguishing your case from all the other cases that he or she has heard that are like this one,” she says.
Broer has seen lawyers at trial be downright nasty to other counsel in the heat of the moment because their stress levels are so high.
“Unfortunately that’s not uncommon,” she says.
And some otherwise calm-and-collected senior lawyers will blow up when junior lawyers don’t give them enough space.
“The most important thing is to let them be alone with their thoughts,” she says. “It can add stress if you are constantly in their face saying, ‘Don’t forget this point and that point,’ and harassing and haranguing them with the details.”
For the uber-organized corporate commercial litigator Nicholas Holland, a partner at WeirFoulds LLP in Toronto, easing pre-trial jitters is also about preparation, which for him is largely about developing his pre-trial notebook.
First, he organizes a chronology of the facts in it, because it helps him understand “the factual matrix of the case.”
He then isolates the legal issues and relies on invaluable feedback from trusted colleagues to help him zero in on the strengths and weaknesses of the case.
Holland also organizes pleadings in his book, and then uses a chart to set out the various elements of the law relating to the cause of action.
“I figure out how each of those elements are going to be established by which witnesses, and which documents, and which admissions have been received already,” says Holland.
“So, for example, when it comes down to a claim for solicitor’s negligence, if there’s been an admission that the defendant was the solicitor for the plaintiff, you don’t have to worry about establishing the duty of care.”
Holland then pinpoints what he calls the “colour of the case.” Beyond establishing the basic elements of the cause of action, he determines “what other sympathetic facts are out there, and how are you going to establish those, and which witnesses would assist you to establish those.”
In a separate section of his notebook, he keeps a list of who needs to testify, when they are going to testify, and what they are going to say.
He also rearranges affidavits and documents in chronological order because sometimes, when he sees that certain events followed other events, it alters his view of the story.
Although some lawyers don’t prepare closing arguments until near the end of trial, Holland writes both his opening and closing well in advance, subsequently tweaking the latter.
“If you are writing your closing arguments in advance of trial and realize you can’t get from A to C without B, you know that you’ve got to get B somewhere. And you don’t want to find that out after the trial,” he says.
After doing so much preparation ahead of time, all he needs to do is quickly meet with upcoming witnesses at the end of each trial day.
“It’s very straightforward,” he says. “You meet with them, you’ve done it before, you go over it and just remind them about what they need to say.
“And that shouldn’t take you too long. So you will be able to call it a night, have a nice meal and get a good night’s sleep.”
Preparing for trial calms him down and makes him feel in control of the case – but it doesn’t completely cure his pre-trial jitters.
“I think if you ever stop experiencing pre-trial jitters, you should probably leave the profession because it’s completely normal to be frightened as a trial approaches,” he says.
“It’s an enormous undertaking. At the same time you should be nervous, you should also be excited because [going to trial] is really what civil litigation is all about,” says Holland.