Failure to Practice
Preparation: More is better. Much more is much better. You never get to a point where you can let up. Never.
Think back on the just-completed Zimmerman trial, not for the backlash on the verdict, but rather for what we can learn from it to improve our advocacy. Why was the prosecution so good, so professional, and so persuasive in the opening argument yet so poor on strategy and execution during the trial? While the Zimmerman team was the polar opposite? They failed miserably in the opening but followed with a good trial performance. One word – practice. The opening argument is a set piece like a David Beckham free-kick. I bet even he doesn’t know how many thousands of times he practiced that kick until it became legend in the film “Bend it like Beckham,” which celebrated its perfection.
I avidly read newspaper obituaries, not for some morbid interest, but because they are concise biographies of interesting lives. I just read one in the LA Times for a jazz pianist Paul Smith. He started practicing the piano at age 8 and continued every day until his death at 91. A singer he worked with said: “Paul was a perfectionist and worked every day to improve his art. When you worked with him, he expected the same of you.” We find nothing strange in this since we expect artists and athletes to practice, yet we never speak about trial lawyers practicing.
Prosecutor John Guy had clearly practiced extensively while the defense didn’t, and it showed in several ways:
First in the editing. When you practice and actually speak the words the edits come natural to you. Reading them on paper is not the same. They are two different forms of communication.
Second, his almost effortless performance. He knew his performance would be critiqued by cynical TV commentators, jealous lawyers and in the social media. So why not make it the best? This is how you will be judged. This is how your competency as a lawyer will be judged. Forget all those cases when no one is watching. If there was ever a time to be at your best, this was it.
Third, he was able to work out his stumbles ahead of time. We all trip over troublesome words or phrases. And we find ourselves hesitating to say that strong, pointed statement. You’ll get better at it with practice. And who doesn’t prefer to make the mistakes in private, rather than in a public courtroom in front of a jury or even worse on TV?
Fourth, I could tell the last lines in Guy’s opening had been heavily re-worked and polished for maximum effect. It wasn’t a throwaway. He left the jury wanting more.
Making the complex simple, however, takes time, creativity, and hard work. As Blaise Pascal (French mathematician, physicist, inventor, writer, and philosopher) famously said, “I would have written a shorter letter, but I ran out of time.” (Often also attributed to Mark Twain and Abraham Lincoln.) But it is through this process that perfection is approached.
The defense knew the material but never took the extra steps to put it together and practice it. Zimmerman’s defense meandered through a more than two-hour statement that included narrative detours, tangents, and at least one instance of diagramming a crude sketch of two men fighting with the words “red-shirt, bottom, black-shirt top.” Unfortunately their argument was jumbled and uncomprehensible at times despite having good content. “The finest conception may be completely ruined by a crude expression of it.” Henry Bett, Some Secrets of Style 248-49 (1932).
As a result they were savaged by the lawyers, in the press, and worse, in the social media, who turned it into a joke. When you become the butt of jokes online it is a disaster.
There are law firms in Miami who have in-house courtrooms for practice and training. James Woods played a trial lawyer in the TV show Shark. In the show he had a courtroom built in his house and practiced in it. He would bring in his associates in the law firm and practice with them. Both the arguments and the cross-examinations. One evening I ran into him at a restaurant and we discussed this aspect of the show. As an actor he prepared and practiced extensively and was shocked to hear that lawyers didn’t do the same.
You never see a great athlete who doesn’t drill. A basketball star who stops fanatically practicing his best shot. If you presume to love something, you must love the process of it much more than you love the finished product. The drills, the practice, the lovely drudgery of putting it all together.
The open is a classic for practice. It is a set piece planned out in advance while the final is a reaction to the testimony and naturally has to be evolving and dynamic. Yet it still has its own set pieces: Reasonable doubt, presumption of innocence, the trial themes, stories and analogies. All these should be worked out in advance.
Rehearse and then rehearse again. Get feedback from colleagues to refine the content and style of your presentation to assure you are not practicing while you’re on the mock judge’s meter.
I am going to repeat the cliches I used in a prior post:
“Practice makes perfect”
“Practice makes the master”
“Practice is everything”
“Perfect practice makes perfect”
And one that sums it up:
“In theory there is no difference between theory and practice. In practice there is.”
Believe in continuous self-improvement. One of my favorite maxims from sports is “Practice like you play.” From Peewee league to the professional level, coaches use this phrase to push their players, because they know that a player’s performance during practice determines his level of success on the field. Once an athlete can perfectly execute drills during the third hour of practice, when his body is weary and ready to give out, then he’ll be able to perfectly execute those same skills during the final moments of the game.
As Heifitz said, “There is no top. There are always further heights to reach.”