Jun 19, 2009

In a famous scene from the movie "Dead Poet Society", Robin Williams stands on top of his desk and then invites his class of teens to do the same. He then exclaims: "I stand upon my desk to remind myself that we must constantly look at things in a different way."

I have to admit that I am a "desk-stander"-sometimes my own, sometimes others. Before you write me off as insane, let me suggest that when looking for the best attorney to handle your family's important legal matter, I think you should consider a desk-stander.

In 18 years of trying cases in Colorado, there are certain indispensable desk-standing techniques I use to prepare for trial.

I Become My Opposition
In his treatise "The Art of War," Sun Tzu said: "To win any battle one must first know his enemy, and to know your enemy you must become your enemy." I am a firm believer in this proverb.

Because I focus on one area of the law, personal injury trial work-I have the advantage of seeing the same pool of 25-30 defense attorneys over and over again. This allows me to observe and keep mental notes about the family lives, interests, work habits, and other important characteristics of each of these defense attorneys.

For example:

  1. I know a certain attorney who recently went through a contentious divorce and has a hobby of hot air ballooning. When he is on a case, he will take the deposition of every doctor my client has ever seen from her pediatrician through adulthood.

  2. I also know which lawyers have their own health issues, and thus, are more sympathetic to my injured clients.

  3. I know which lawyers hate whiners. Consequently, I prepare my clients not to sound like that when dealing with these particular attorneys.

  4. I know which lawyers are willing to go all the way to trial and which will not.

  5. I know which lawyers are disgruntled, overloaded, or dissatisfied with their lot in life.

  6. I know which lawyers are looking to impress their bosses and are trying to move up the ladder at their firm and those who are on their way out and don't care at all. I definitely know who the lazy lawyers are and which ones will leave no rock unturned.

  7. I even attempt to decipher what sort of relationship these defense attorneys have with their respective insurance company clients.

Before every trial, I spend a couple days trying to look at my case from the eyes of that particular defense lawyer. Sound strange? Think again. After spending one or two full days reviewing a file while wearing the opposition's hat, I not only understand how they will present their arguments, I also understand all of the weaknesses in those arguments. I wouldn't dream of going to trial without first understanding my opponent and looking at my client's case from his perspective.

I Become The Judge
Before going into private practice, I clerked for a judge and thus remember a time when I thought the way a judge thinks. In order to effectively prepare a case for trial, it is essential to understand how the court will perceive the evidence. Courts are consumed with their concern over fairness, leveling the playing field, and avoiding undue waste of court time. I could have the most compelling story to tell the jury but if the judge has problems with how I go about telling the story, the jury will never be allowed to hear it.

Before every trial, I meticulously review my opening statement, witness questions, demonstrative exhibits, evidence, and even my closing statement, pretending to be the court and trying my best to play the role of the judge. I would never think of walking into court without first going through this exercise. I find that "thinking like a judge" makes my presentation swift, purposeful and successful.

I Become A Juror
Days before a trial begins, I make arrangements with the court to have access to the courtroom. With time alone in the empty courtroom, what do I do? Do I test out my counsel desk and chair for comfort and ergonomic support? Check out the features on the podium? No. Instead, I get in the jury box and make it a point to sit quietly in a juror chair.

In every trial I have ever done, regardless how familiar I am with the courtroom and how many prior occasions I tried a case in that very courtroom, I spend at least an hour sitting quietly like a bored and uncomfortable juror would have to. I try to think like this juror would. I try to think about what she might think about my case, the defendant's case, and of course, my client. These poor jurors are about to embark on at least a 30 to 60 hour ordeal. The least I can do is spend an hour in their position. For me, I think this habit helps me know how best to relate to these wonderful folks who take time out of their busy lives to perform their civic responsibility. I also think it helps me to better understand how they view the testimony and the evidence.

Each of these exercises-changing my viewpoint (desk-standing) and channeling the opposition, the judge and the jury-ensures that I'll never forget how important my client's case is and how a lawyer must think "outside the box" to get justice for his clients.


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