What Should a New Lawyer Do to be Ready to Actually Take Cases to Trial

Some of my students this semester asked me a variation on the same question  – what they should do to become good trial attorneys?  They want to know what books I recommend, what strategies work best, and which cases are best-suited for trial.

My answer is that becoming a good trial attorney is largely a matter of geography.  Just as being a good basketball player requires that you change your location from bench to court as often as possible, so too does trial work require that you move yourself from your office to the courthouse.  Trial lawyers try cases.  It’s that simple.  Well, almost that simple.

Let’s take the basketball analogy a little further.  A person who wants to get better at basketball does so by actually playing.  But of course that isn’t all. Good players spend a lot of time practicing and thinking about the game.  There’s a reciprocal process going on – better practice leads to better play, better play helps you see what works so you can focus your practice.  But the 2 main ingredients stay the same- playing the game, and preparation.  So we can revise the formula a bit – trying cases plus thoughtful preparation (revised as experience dictates) are necessary ingredients for the aspiring trial lawyer.

Trials are not basketball games, but if they were one of my mentors could probably be the Steph Curry or LeBron James of trial work.  Often I would ask him what books I should read and what seminars I should attend to become a better trial lawyer.  He would usually patiently say that those things are great but ultimately you have to actually go try cases.   That’s why being a trial lawyer is largely a matter of geography.  I used to think that way of thinking was outdated.  I don’t think so any more.

Don’t misunderstand me – reading books is vital, and so is attendance at seminars.  I’m not encouraging that lawyers avoid those things.  In fact, I love to read books on trial techniques, psychology, persuasion, communication, and cognitive science.  But all that knowledge has to be translated into action, and trying cases is the way we do that.

Today, there’s been an enormous increase in the number of books written about trial work and related fields.  There’s no shortage of books or friendly experts willing to tell lawyers how to try cases.  But there is a shortage of trials.  Very, very few cases on the civil side go to trial.  So, to get better at trial work, get out and actually try some cases.