Vail Law column: 13 things you’ll learn from going to trial, about the law and yourself
September 5, 2017
I was talking to a client recently following a weeklong trial. He said the strangest thing; he actually "enjoyed" the experience. Well, sort of, anyway. What he enjoyed was what he learned about the system — and about himself. So permit me, kindly, to offer a few quick lessons from the trenches.
1. Trial is exhausting. At times, it is mind numbingly, beat by a two-by-four, aching to the bone, wearyingly so. It is dig-a-hole-and-pull-the-earth-in-after-you tiring. Not only for the lawyers who, to be effective, must enter the arena fully prepared, and who must be "on" — fueled by adrenaline — but also for the parties over whose lives the lawyers are engaging in a tug-of-war, like bulldogs over a bone.
2. Getting to trial takes longer than you think. Injustice is immediate. To have your day in court will take a bit longer. Even in the swiftest of cases, it is unlikely that your matter will be heard in less than a year. The more complex the matter, the longer the horizon will likely stretch until it's show time. Buckle the seatbelts of your patience. Grit your teeth and settle in. This is gonna take a while.
3. And often costs more than you planned. There are lawyers' fees, of course. But there are other costs, as well, and they can be substantial. If experts are involved, then they have to feed their families, too. If there are depositions, then they can raise the budget. There will be court costs, reproduction costs, travel costs, perhaps, and others.
4. You have to trust your lawyer. If you don't, hire someone else. A relationship of trust, candor and confidence between a lawyer and his client is essential. Although any good lawyer will welcome and encourage a client's input, there is a point where you have to put your faith in the lawyer's expertise. If thinking of doing so gives you chills or keeps you up at night, it may be time to make a switch. If it's nerves alone, however, and the lawyer is worthy of your confidence, a cup of chamomile tea just might set you right.
5. Juries do the darndest things. The facts may be with you, the law may be with you, even the Force may be with you, and the jurors may be nodding their bobble heads in rapt agreement from kick off to the final gun. And yet, sometimes juries just plain confound you. Sometimes they get it wrong. Especially in complex or technical cases, sometimes juries get lost in all of the detail. Sometimes they think they have done one thing but instead have done another. And sometimes, you have simply read them wrong. Juries, remember, are composed of people, with all of their prejudices, predispositions, strengths and weaknesses. A lot of what is at work in determining the outcome of a case is as simple — or complex — as human nature.
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6. Judges make mistakes, too. Or else they are unpersuaded by what — in the fog of legal wrangling — is clear and unequivocal to you.
7. Not everything you think is important will find its way before the court. "Evidence" is a full-year class in law school, and there are subtleties to master throughout a lawyer's career. Some important stuff will never come before the judge or jury to consider, and however much excluding it may knot your undies in a bunch, that's just the way it is.
8. There is lots of theater. A trier of fact — whether it is a jury or a judge — can sniff out an ill-prepared or incompetent attorney in an instant. Similarly, a jury or a judge will be off-put by a disrespectful attitude or appearance. Neat, clean, respectful and prepared — this applies equally to attorneys, clients and anyone brought before the court.
9. "How" a case is presented is essential. The lawyer needs to be an orchestra conductor who leads the witnesses in telling a compelling story. If the story skips around too much, lacks a unifying theme or bogs down in minutiae, then you'll see the jury nodding off. The same story can be told in a compelling manner or one that bores the warts off of a toad.
10. Substance counts, too. There is no substitute for a lawyer knowing his case blindfolded, in the dark, standing on his head, with his arms tied behind his back and inside out. Like the three L's in real estate, the key to effective litigation is preparation, preparation and then more preparation.
11. The devil is often in the details. There is a distinction between picking nits and details. The details count; nits do not. An experienced lawyer knows the difference and has the courage to tell his client that a detail precious to the client is, in fact, a nit.
12. "Justice" isn't always done. Life isn't always fair. Even the best lawyers lose cases. If they didn't, then it would be an indicator, above all else, that the lawyer has no mettle and takes only "sure things." Just like lint collecting in the depths of your pockets, sometimes these things simply defy both the laws of physics and human logic. Bad stuff happens. Life is not always Skittles and beer. Sometimes, justice is simply orphaned like a runny-nosed waif abandoned on a dusty roadside.
13. You'll learn something about yourself. Maybe something valuable. Lessons from the courtroom will carry over into other parts of life. You'll learn what you are made of and how you stand up under pressure. You'll likely learn a thing or two, as well, about patience and persistence. While the reasons that you've come before the court are critical enough to you that you've marched down this path, the process is a metaphor for life as well. Learn something from it — win or lose — and life will be a little fuller.
In the final analysis, litigation is a trial — in every possible sense of the word.
Rohn K. Robbins is an attorney licensed before the bars of Colorado and California who practices in the Vail Valley with the law firm of Stevens, Littman, Biddison, Tharp & Weinberg LLC. His practice areas include business and commercial transactions, real estate and development, family law, custody and divorce and civil litigation. Robbins may be reached at 970-926-4461 or at his email address, firstname.lastname@example.org.