If you frequently travel for business, you know the terrible feeling of arriving at your destination only to realize that you’ve left your toothbrush or razor at home.  That’s why people who regularly travel on little (or no) notice understand the importance of keeping a “travel kit” packed and ready to go.  In case you’ve never heard of a travel kit before, it’s a bag packed with all of the essential items you would need for a short business trip.

Your travel kit is probably similar to mine:

• Shampoo
• Deodorant
• Toothpaste
• Razor
• Shaving cream
• Fake ID’s, passports and/or visas issued under at least (3) different aliases
• $50,000 cash (typically in U.S. or Canadian dollars, Japanese yen, European euros, Russian rubles, and Swiss francs)
• (2) “clean” pre-paid cell phones (and chargers)
• Safe deposit box keys
• Access codes to safe houses
• Swiss bank account access codes
• Laminated list of non-extradition countries
• Hair dye and fake moustache
• (2) pair black socks
• Q-Tips
• Toothbrush
• Etc.

Having a well-stocked travel kit like this can be a real lifesaver.  It not only simplifies your packing, but it also sets your mind at ease because you know that you can head out the door without worrying that you’ve forgotten an essential item.

Far more important than your travel kit, however, is your “trial kit.”  A trial kit  contains all the essential items you’ll need during trial.  The items in your trial kit will vary depending on what types of cases you normally try, but here are a few recommendations to help get you started:

• Measuring tape. Distances are often an essential element of a case.  (“How close were the cars?”  “How far away was the witness?”  “How tall was the attacker?”)  If you have a measuring tape with you, you can put those distances “on the record.”
• Stopwatch. Another common issue is time.  (“You said the light just turned red.  How much time passed before the defendant ran the light and darted into the intersection?”)  Using a stopwatch can prevent witnesses from haphazardly guessing at the passage of time and lock them into definite time frames.
• Magic markers. Almost every courtroom has an easel and a flip chart, but surprisingly few of them actually have magic markers.  For some reason, they just seem to vanish.  Keeping a supply of magic markers in multiple colors (at a minimum: red, black, and blue) will let you summarize points for the jury or allow witnesses to clarify something by drawing or diagramming it.
• Highlighters. Want to draw a witness’s attention to a specific section of a transcript or written statement?  Highlighting the relevant section makes it much easier to limit their focus or show them which portion they should read aloud.
• A/V cords and power cords. The world’s best computer simulation is useless if you can’t show it to the jurors.  Make sure you’ve got the right cables to connect your computer to the court’s projection system and an extension cord in case the power outlets are too far from your equipment.
• Law books. It’s almost a guarantee: During the trial, someone will have a question about jury instructions, rules of procedure, or an evidentiary issue.  Luckily, you’ll have the answers handy because you’ll pack copies of the rules of court and the evidence code in your trial kit.
• Sustenance. Trials can take a lot out of you.  Pack a few bottles of water to keep your throat clear and some energy bars to maintain your energy throughout the day.
• Cash. (No, it’s not for bribing jurors or judges!)  Keep $10 worth of quarters in your trial kit.  You’ll be surprised at how often you need it to feed a parking meter, let someone use a pay phone, or to buy your “express lunch” of Diet Dr Pepper and pretzels at the vending machines.
• Aspirin. If you have it, you won’t need it.  But if you don’t have it, you’ll wish you did!
• Tissues. Do your cases deal with emotional issues?  Be prepared to let witnesses wipe away their tears on something besides their shirt sleeves.
• Pointers. Normally, when you ask witnesses to identify a specific section of a map or diagram, they will reach across the exhibit and point with their fingers or with a pen, completely blocking the jury’s view of the exhibit.  To avoid this problem, keep a laser pointer and an expandable pointer in your kit.

Obviously, this list only scratches the surface of what you’ll actually bring to trial, but at least it will get you thinking about the essential items you should pack.  Don’t make the mistake of waiting until the eve of trial to start packing your trial kit.  The closer you get to trial, the more cluttered your mind will become with last-minute issues and problems.  Just like packing for a trip, if you wait until the night before, you’ll probably forget an essential item.  Instead, prepare your trial kitnow, while your mind is calm, and you can be guaranteed that you’ll have everything you need when you get to court.

The case was serious.  The charge?  Attempted Murder with a Firearm.  The defendant was accused of shooting the victim in the head, and he was facing a potential sentence of life in prison.  You would think that because its seriousness, my opponent and I would be fighting over every single issue in the case.  But nothing could be further from the truth.

Instead, we were standing in the hallway behind the courtroom, talking with the judge and telling him that we were stipulating to nearly every material fact in the case, that we were streamlining the introduction of exhibits, and that we’d agreed to significantly reduce the number of witnesses who would testify.

Why would we do that?  Why would two experienced attorneys (each hoping for a completely different outcome) agree to almost all of the issues in a case?  We did it because we knew the strengths and weaknesses of our cases and were able to identify the true issues in the case.  In short, we knew what mattered and what didn’t matter.

Many attorneys don’t like to stipulate.  They’re afraid that if they agree about anything with their opponent, they’ll seem weak.  So instead, they argue about everyissue with their opponent.  Typically, the attorneys who are most afraid of stipulating are also the ones who either don’t understand their cases very well or don’t know how to try cases.  But in my experience, the attorneys who stipulate are usually the best attorneys in the courthouse.  They understand their cases inside and out, and know where to pick their battles.  They streamline their cases, identifying the important issues, and agreeing to everything else.

If you’re thinking about joining their ranks and stipulating to parts of your case, here’s a quick list of some things you might consider agreeing to:

• Witness credentials
• Authenticity of business records
• Evidentiary foundations
• Distances
• Demonstrative exhibits
• Accuracy of transcripts
• Identities of parties
• Venue
• Minimum or maximum damage amounts
• Liability (when damages are the only issue)
• Damages (when liability is the only issue)
• Allowing witnesses to testify by telephone or video
• Admissibility of exhibits
• Permitting opposing counsel to ask leading questions to expedite testimony
• Permitting witnesses to give narrative responses so they can “tell their story”
• Introducing depositions or sworn statements in lieu of live testimony

This list is just the tip of the iceberg.  The better you understand your case, the more issues and items you’ll want to agree to.  But, if you’re going to use stipulations during trial, you’ll want to make sure the jury actually pays attention to them.  Here are three tips for maximizing the impact of your stipulations:

1. Don’t call them “stipulations.” Are you confident that each of your jurors knows what “stipulation” means?  Don’t risk any confusion.  Rather than titling the document “Stipulations,” consider titling the document, “Agreed Upon Facts,” “Agreement Between the Parties,” or “Facts No Longer in Dispute.”  Also, consider writing an introductory paragraph like this: “Both sides have agreed to the following facts.  There’s no need for any further proof of these facts — they are no longer in dispute, and you may accept them as true.”

2. Get everyone to sign the document. Not just the lawyers — have all of the parties sign the document.  That way, none of the jurors will get the mistaken impression that only the lawyers agreed to the stipulations.  To really add some extra “oomph” to the agreement, ask the judge to formalize the agreement by signing off on the document.

3. Introduce stipulations at the most effective time. Many lawyers fall into the trap of waiting until the end of their case before publishing all of their stipulations.  The judge says, “Call your next witness, counselor,” and the lawyer responds, “No more witnesses your honor — but I do have 40 minutes worth of stipulations to read into the record.”  If that’s how you introduce your stipulations, “the record” will be the only one in the room paying any attention to them.  The jurors will fall asleep before you finish reading the third page of the stipulations, and they’ll ignore your carefully crafted agreements.  (Even worse?  Those attorneys who don’t even read the stipulations into evidence.  They just introduce the agreements into evidence and then expect the jurors to read them in the deliberation room.)

To maximize the impact of your stipulations, you want to publish them at the most effective time.  For example, let’s say that you and your opponent have both agreed that a firearm recovered from the house was loaded and operational.  Rather than waiting until the end of your case to read that stipulation into evidence, you should publish it to the jury when the gun becomes important.  After the witness testifies, “I saw a gun next to the baby’s crib,” you can read the stipulation to the jury: “Both parties have agreed that the firearm was loaded and fully operational.”  Doesn’t it make more sense to publish it then, rather than waiting until the end of the trial when the jurors have forgotten about the gun?

Consider making stipulations an integral part of your trial practice.  The sooner you understand why to stipulate to issues in your case, the faster you will develop your trial skills.  The better you understand your case, the more you’ll stipulate to.  The more you stipulate to, the more focused your case will become.  The more focused your case becomes, the better you’ll try your case.  Keep it up, and before long, you’ll be one of the best trial lawyers in your courthouse!

In every football game, coaches make decisions about whether to take a timeout, to accept a penalty, or to go for it on 4th down.  These decisions must often be made in a split-second, and can affect the entire outcome of the game.  Anyone who’s watched football has probably heard the old mantra, "Every second you leave on the clock unnecessarily may be the one your opponent uses to beat you."

That’s why football coaches spend so much time studying clock management techniques.  They think their way through every timing possible scenario before they take the field, because they know that they’ll eventually run into a situation where they need to make a split second decision.

How do they do it?  They script out their decisions in the calm of their office, before they run into the problem on the field. They know that their minds don’t work their best when dealing with distractions, time pressure, and screaming fans, so they figure out what the best possible response should be beforehand, and then implement it on the field.  

These coaches prepare charts to tell them when to kick and when to go for the 2 point conversion. They have charts to help them decide whether or not to stop the game clock.  They have charts to tell them whether or not to accept penalties.

Every conceivable problem gets mapped out before they take the field, so that they can make the best decision when it counts.

But what about you and your trial practice preparation?  Do you have a plan in place for dealing with emergencies?

Think about all of the things that could possibly go wrong in your next trial. Here are some examples:

• Your star witness is late…
• Your start witness doesn’t show up…
• Your exhibit is excluded…
• The judge reverses his pre-trial ruling and admits your opponent’s exhibit into evidence…
• The judge reverses his pre-trial ruling and doesn’t admit your exhibit into evidence…
• Your objection is overruled…
• Your opponent’s objection is sustained…

Do you have responses prepared for these scenarios?  If not, you need to invest some time burning the midnight oil and crafting a solution to each of those potential problems.

You’re not going to win jury trials because you’re the most attractive lawyer in the courthouse (even though you are, gorgeous!) or because you’re the smartest person in the courtroom (even though you are, Einstein!) Nope, you’ll win jury trials because you’re the most prepared lawyer in the courtroom, and you’ve thought of responses to every possible problem.

Being a trial lawyer is kind of like being a top notch surgeon performing an appendectomy.   Removing the appendix is easy.  Heck, I could probably teach you how to do it in a 30 minute seminar.  But surgeons don’t get paid the big bucks because they know how to remove the appendix — they get paid the big bucks because they know how to respond to the thousand different complications that can arise while you’re removing it.

That’s why you get paid the big bucks.  Trying cases is pretty easy. A high school student could probably do it if everything went according to plan. But things never go according to plan, and that’s why you get paid the big bucks.  Script out your responses to all of the different scenarios before trial begins, and you’ll be the lawyer representing the prevailing party, rather than the lawyer apologizing to your client.

During trial, you need your mind and body operating at their peak performance levels.  You need to be able to object immediately when you hear potentially objectionable material, to think quickly on your feet when cross-examination takes an unexpected turn, and to look energetic and engaged when delivering your closing argument.  If your mind and body aren’t at 100%, you’re doing your client a great disservice.  That’s why you need to establish a morning ritual that helps you get the most out of the day and gives you the energy you need during trial.

Before we begin, let me acknowledge that most trial lawyers won’t follow this advice.  They’ll prepare for trial the same way they’ve always prepared, staying up late to burn the midnight oil, bolting out of bed in the morning, grabbing a cup of caffeine and rushing to the court on just a few hours sleep.  And by following that ritual, they’ll sabotage their chances for success in the courtroom.

If, however, you’d like to think better on your feet, to have more energy, and to feel more confident all day long, this simple change in your morning routine will dramatically improve your courtroom performance.

Every morning, the way you start your day will dictate how the rest of your day will unfold and will set the tone for your entire day.  If you’re serious about improving your performance during trial, you’ll need to establish a morning ritual to get the most out of the day and ensure that you’re productive all day long.  You want to create a morning ritual that renews, refreshes, and gets you fired up.  The ritual that you’re about to read will add about 60 minutes to your morning, so you’re going to need to wake up earlier.  But, if you follow these directions, you’re guaranteed to have more energy each day and be quicker on your feet during trial.

Here are the action steps for your morning ritual:

1. Start by drinking half a liter of water. During the night, your body gets dehydrated.  Chug a 1/2 liter of water first thing in the morning, and your body will thank you.  It helps to have a visual reminder, so put your water bottle next to your bed or someplace where you’ll see it when you wake up.

2. Brush, floss, etc. and take care of your personal hygiene. Take care of those pearly whites — the jury wants to see your smile!

3. Exercise for at least 30 minutes. Stretch, lift weights, do pushups, run… whatever you want to do, just use your body (that’s the definition of exercise, “the act of using”) and get your heart pumping.  This may sound counter-intuitive, but if you exercise first thing in the morning and get your heart rate elevated, you won’t be tired, you’ll actually have more energy for the rest of the day.

4. Meditate for 5-10 minutes.  Do NOT think about the trial or what you’re going to do in court today.  Just take some time to clear your mind and focus your thinking.  Breathe deeply, and relax.  (This might be the only time all day that you get to!)

5. Shower and clean up.

6. Eat a great first meal. Don’t grab an energy bar or a drive-thru breakfast – eat something healthy, balanced, natural, and organic.  Eat something that will fuel you for the day and give you the energy you need.  Here’s a good example:

Blueberry-Honey Breakfast Shake (makes 2 servings)

* 1/2 cup fresh or frozen blueberries

* 1/2 cup low-fat vanilla yogurt

* 1/2 cup low-fat milk

* 2 tablespoons honey

* 5 ice cubes

Throw everything in the blender and hit “frappe” to have a healthy breakfast ready to go in under 2 minutes.

When creating your morning ritual, it’s important to plan it specifically and give yourself enough time to accomplish everything. Give yourself an extra 10-15 minutes for the “on ramp” to your success ritual, so you can handle all of the “Where are my shoes?”  “Where’s the water?”, etc. situations and give yourself some time to get geared up. Also, give yourself 10-15 minutes for the “off ramp” to gear into your regular day.
(This probably means that you’re going to have to wake up earlier, which means you can’t go to bed at 2 AM.  Getting a full night’s sleep will also contribute to a successful day in court.)

Finally, here’s the most important part: You need to start doing this immediately.  That means first thing tomorrow morning, you should be on the first day of your program.  Don’t put it off — in the words of the Nike ad, “Just do it.”   Because if you don’t do it tomorrow, you won’t do it on Monday, either, and you certainly won’t do it the first day of trial.  However, when you do, you’ll be guaranteed to have more energy, sharper focus, and more confidence than you’ve ever had before.  Good luck!

“William Wirt’s Advice to a Young Lawyer”

This week’s post is a little different.  I found a book written in 1850 entitled, Success in Life: The Lawyer, by L.C. Tuthill, and thought you might enjoy one of the chapters from that books, entitled “William Wirt’s Advice to a Young Lawyer.”  Wirt, who was the prosecutor in Aaron Burr’s treason trial, is credited with turning the Attorney General’s position into a position of influence (he held the position for 12 years, the longest tenure of any U.S. Attorney General).  In this letter, he includes several tips that are still worthwhile more than 150 years later.  Enjoy!

“To work insatiably, requires much less mind, than to work judiciously”

In 1806, Mr. Wirt removed to Richmond.  The following excellent advice forms a part of a letter written about this period to a young lawyer, in whom Mr. Wirt felt great interest.

“Endeavor to cultivate that superior grace of manners which distinguishes the gentleman from the crowd around him.  In your conversation avoid a rapid and indistinct utterance, and speak deliberately and articulately.

Blend with the natural hilarity of your temper, that dignity of sentiment and demeanor, which alone can prevent the wit and humorist from sinking into a trifler, and can give him an effective attitude in society.

Get a habit, a passion, for reading — not flying from book to book with the squeamish caprice of a literary epicure, — but read systematically, closely, and thoughtfully, analyzing every subject as you go along, and laying it up safely and carefully in your memory.

Determine with yourself that no application shall be wanting to lift you to the heights of public notice; and if you find your spirits beginning to flag, think of being buried all your life in obscurity, confounded with the gross and ignorant herd around you.  But there are yet more animating and more noble motives for this emulation: the power of doing more extensive good — the pure delight of hearing one’s self blessed for benevolent and virtuous actions, and as a still more unequivocal and rapturous proof of gratitude, ‘reading that blessing in a nation’s eyes;’ add to this, the communicating the beneficial effects of this fame to our friends and relations; the having it in our power to requite past favors, and to take humble and indigent genius by the hand, and lead it forward to the notice of the world.  These are a few, and but a few, of the good effects of improving’ one’s talents to the highest point, by careful and constant study, and aspiring to distinction.”

On reviewing his past life, at this period, Mr. Wirt seems to have been forcibly struck with the warning and encouragement which it presented to young men.   “I have, indeed,” says he, “great cause of gratitude to Heaven.  In reviewing the short course of my life, I see where I made plunges from which nothing less than a Divine hand could ever have raised me; but I have been raised, and I trust that my feet are now upon a rook.  Yet, can I never cease to deplore’ the years of my youth, that I have murdered in idleness and folly.  What a spur should this reflection be to young men!”

The eloquent author of the Life of William Wirt says: “We have remarked of Wirt, that his life is peculiarly fraught with materials for the edification of youth.  Its difficulties and impediments, its temptations and trials, its triumphs over many obstacles, its rewards, both in the self-approving judgment of his own heart, and in the success won by patient labor and well-directed study; and the final consummation of his hopes, in an old age not less adorned by the applause of good men, than by the serene and cheerful temper inspired by a devout Christian faith; all these present a type of human progress worthy of the imitation of the young and the gifted.”

But this “progress” is not to be made without constant effort.  Wirt in his figurative style thus describes it:

“You will find it pretty much of an Alp-climbing business.   The points of the rooks to which you cling will often break in your hands, and give you many a fall and many a bruise; but instead of despairing at the first fall, or the twentieth, remember the prospect from the summit and the rich prizes that await you.  Up with a laugh, catch a better hold next time, and try it again.”

“The law is to many, at first, and at last, too, a dry and revolting study.  It is hard and laborious; it is a dark and intricate labyrinth, through which they grope in constant uncertainty and perplexity-the most painful of all states of mind.  But you cannot imagine that this was the case with Lord Mansfield or with Blackstone, who saw through the whole fabric in full daylight in all its proportions and lustre.”

The pleasure with which Wirt entered into a trial of legal strength, after he had “toiled and moiled” in his profession for many years, is thus expressed:

“I have some expectation of going to Washington in February to plead a cause.  I shall be opposed to the Attorney- General, and perhaps to PINCKNEY.  ’The blood more stirs to wake the lion than to hunt the hare.”  I should like to meet them.”

To the friend to whom he has so frequently addressed stimulating arguments, Mr. Wirt again writes:

“You must read, sir; you must read and meditate like a Conestoga horse — no disparagement to the horse by the simile.  You must read like Jefferson, and speak like Henry.  If you ask me how you are to do this, I cannot tell you, but you are nevertheless to do it.”

“By the way, there is one thing I had like to have forgotten.   One of the most dignified traits in the character of (Patrick) Henry, is the noble decorum with which he debated, and the uniform and marked respect with which he treated his adversaries.  I am a little afraid of you in this particular, for you are a wit and a satirist.  Take care of this propensity.  It will make you enemies, pull a bee-hive on your head, and cover your forensic path with stings and venom.  Let it be universally agreed that you are the most polite, gentlemanly debater at the bar.  That, alone, will give you a distinction, and a noble one too; besides, it is a striking index and proper concomitant of first-rate talents.

For two or three years you must read, delve, meditate, study, and make the whole mine of the law your own.

Let me use the privilege of my age and experience to give you so few hints, which, now that you are beginning the practice, you may find not useless.

1.  Adopt a system of life, as to business and exercise; and never deviate from it, except so far as you may be occasionally forced from it by imperious and uncontrollable circumstances.

2.  Live in your office; that is, be always in it except at the hours of eating and exercise.

3.  Answer all letters as soon as they are received; you know not how many heart-aches it may save you.   Then fold neatly, and file away neatly, alphabetically, and by the year, all the letters so received.  Let your letters of business be short, and keep copies of them.

4.  Put every law paper in its place as soon as received, and let no scrap of paper be seen lying for a moment on your writing-chair or tables.

5. Keep regular accounts of every cent of income and expenditure, and file your receipts neatly, alphabetically, and by the month, or, at least, by the year.

6.  Be patient with your foolish clients, and hear all their tedious circumlocution and repetition with calm and kind attention; cross-examine and sift them until you know all the strength and weakness of their cause, and take notes of it at once, whenever you can do so.

7.  File your bills in Chancery at the moment of ordering the suit, and while your client is still with you to correct your statement of his case; also, prepare every declaration the moment the suit is ordered, and have it ready to file.

8.  Cultivate a simple style of speaking, so as to be able to inject the strongest thought into the weakest capacity.  You will never be a good jury lawyer without this faculty.

9.  Never attempt to be grand and magnificent before common tribunals, — and the most you will address are common.

10.  Keep your Latin and Greek, and science to yourself, and to the very small circle which they may suit.  The mean, envious world will never forgive you your knowledge, if you make it too public.  It will require the most unceasing urbanity and habitual gentleness of manners, almost to humility, to make your superior attainments tolerable to your associates.

11.  Enter with warmth and kindness into the interesting concerns of others — not with the consciousness of a superior, but with the tenderness and simplicity of an equal.

12.  Be never flurried in speaking, but learn to assume the exterior of composure and collectedness, whatever riot and confusion may be within; speak slowly, firmly, distinctly, and make your periods by proper pauses, and a steady, significant look.

You talk of complimenting your adversaries.  Take care of your manner of doing this.  Let it be humble and sincere, and not as if you thought it was in your power to give them importance by your fiat.  These maxims are all sound; practice them, and I will warrant your SUCCESS.”