The Litigator’s Playbook:
Practice Makes Perfect!

by Jeri Kagel, M.Ed., J.D.

We have all heard the expression, “practice makes perfect.” Our parents and teachers told us to study for tests; we practice with our team to prepare for a game; we rehearse songs in our church choir; we cook a new dish for ourselves first before serving it to guests; and as children, many of us practiced playing our obligatory piano or violin or flute pieces in anticipation of our teachers hearing our pieces.

In practicing we do far more than carry out the task at hand. In baseball we don’t just repeatedly swing the bat: we learn about a particular pitcher or the pitches likely to come our way. We study better when teachers and professors tell us what to expect on a test. We think about what our families or friends like or don’t like to eat before serving a dish to them.

So, what makes good practice? In my work, I repeatedly see things attorneys do that do not serve them well, and also see things that – if modified slightly – could provide them with a significantly greater return.

The following general suggestion, although not specifically focused on a particular facet of trial work, should be helpful to attorneys in all aspects of trial work – preparing juror profiles and voir dire, designing opening statements, choosing what to focus on during witness examinations, and determining the thrust of their closing arguments.

The Tried and True Method: Practicing Our Delivery – Talking
New and even well-seasoned attorneys often practice in front of a mirror, in the shower, through role-playing, or by videotaping just to hear themselves speak the words they intend to use in court. When we do something repeatedly, we gain familiarity with the material, which positively affects our delivery. The more we repeat the words in a safe environment – i.e., practice – the less likely we are to appear nervous or uneasy before the judge and jury or to make mistakes requiring correction and potentially taking us off our game. A good idea, but . . .

An Improvement: Step Back First
Practicing in front of a mirror is all well and good, but not close to the “perfect” that we are attempting to achieve when we practice. While perfection itself may be impossible, making the attempt can have a dramatic, positive impact on the process. It is for that reason that I want to stress the importance of first taking a step back before we stand in front of the mirror.