“Please Tell Me you Didn’t. . . How to Keep Client’s Out of the Jailhouse, Poorhouse and Lawyers Out of the Nuthouse” -Blog
Last week, I found myself in day “one” of a trial, defending a sort of healthcare civil fraud case in small town just north of “Nowhere, Texas.” At the first break, my client was absolutely freaking out. “I can’t believe they are saying such bad things about me! All lies! This is awful! We are going to lose!”
I looked at him calmly and replied, “Yes, it’s war.” I assured him, “they are shooting at us and they are trying to win.” I then leaned in and whispered, “you can either panic, sorta like you are doing now, or suck it up and help me shoot down the next thing they send over the ridge. That’s how we deal with it.”
I would like to say this advice helped. (It didn’t.) But it did occur to me, that I have tried maybe 600 healthcare cases, and I forget that I am used to it. Not everyone is. Maybe I can help other lawyers who are in a similar situation, and are experiencing fear of a courtroom.
Competence vs. Smoothness, or “the zone.” “Competence,” in my way of thinking, refers to the technical ability to get through a hearing or trial. I and do mean, “get through it.” If you are brand new to courtroom work, the rules of civil procedure and evidence are like learning a foreign language.
I remember the first time I asked an Italian person, “Come ti chiami?” And she told me her name. I couldn’t believe it actually worked, since I don’t speak Italian, at least, not until then.
Same with rules of court. There are five steps, for example, when using a writing to refresh recollection, then, getting the writing admitted, when the witness still can’t remember. It’s just a rule, and it does work. Some of the fear of a courtroom, I think, is simply the kind of fear that comes from not believing any of this is actually going to work– that the judge might give you what you want. (They will).
“Smoothness,” or getting in “the zone” on the other hand, is “competence,” plus, being “chilled out” enough to think clearly, free of fear of your own incompetence. Athletes call this being “in the zone.” This is the point where you can reflexively handle anything that gets thrown at you. You aren’t thinking about screwing it up, you are thinking, “I’ve got this.” It is a wonderful place to be.
Exposure therapy.
Here is the thing I think most lawyers don’t realize about “smoothness” or “the zone” in court. It usually doesn’t arrive until day two of a trial. Day one, is more for “ancillary” issues, such as “are we going to settle,” or “is the trial really going to take place at all?” And my all-time favorite, “have I left my trial notebook back at the hotel?”
It usually isn’t until “day two,” that you get “locked in,” that fear melts away and you get in “the zone.” This a problem if all you ever do is 30-minute hearings, or maybe single-day temporary injunctions cases. You might come to believe that “smoothness” or “the zone,” isn’t part of your abilities. When it just might be that you have not had a chance for “smoothness” or “the zone” to arrive for you. You aren’t getting the benefit of “exposure therapy,” because all you ever get is the “day one” jitters, when there simply isn’t a “day two” in a one-day hearing.
“Scary,” “really scary” and “not scary at all.” I used to have the same problem with email which might help you with day-one trial jitters. Every day, there are 50 to 100 emails in my inbox. And I used to dread them. Then, while watching the Stephen King movie “It,” there was a scene where the ghost had three doors, marked “scary,” “really scary” and “not scary at all.” Which was a joke for “comic relief.”
So, one day, I took a yellow notepad, and made three columns for my emails, marked “scary,” “really scary” and “not scary at all.” As I went through my emails for one week, I made a mark in each column to keep up with each type of email (the kind of mark where you make four vertical lines and one diagonal to make “five.” Then you count up the groups of five to see how many you’ve got in total.)
And you know what, at the end of the week, there weren’t any “really scary” and practically no “scary” emails at all. Almost all of them were marked, “not scary at all.” You could do the same thing with “competence.” Make a chart of things that scare you, and keep track of whether or not you could or could not, “handle it with ease,” “handle with difficulty,” or “it was a complete disaster.” My point being, maybe, it isn’t just “exposure” to something, (I was clearly “exposed” to my email inbox) but instead, the trick is in realizing, that your fear is completely unfounded.