Channel Your Inner Miles Davis on Cross-Examination

mdIf it’s possible for any living trial (and appellate) lawyer to qualify as a rock star, David Boies unquestionably deserves that title. In the Review section of the Wall Street Journal last weekend, Boies said this about the need to improvise during cross-examination:

“This is jazz; it is not a symphony . . . This is Miles Davis; it’s not Beethoven”

This echoes something I discussed in an earlier post, calling on the writings of Malcolm Gladwell, on the topic of successful spontaneity in the courtroom. In a nutshell, Gladwell writes about similarities between improvisational theatre and armies entering battle and the need for both to meticulously prepare in advance, which frees them to be spontaneous in the moment. Because there’s probably no greater example of a writer’s narcissism than self-quoting, I’m going to quote myself discussing Gladwell. Here goes:

“Gladwell likened the actors’ level of pre- and post-performance effort to the preparation an army or navy undergoes in advance of an actual battle. Soldiers train, practice and even participate in highly elaborate war games to prepare for what they might encounter on the battlefield. Gladwell refers to this preparation as ‘creating the conditions [necessary] for successful spontaneity.’

It occurred to me that creating the conditions necessary for successful spontaneity in the courtroom can be viewed the same way. In other words, while the improvisational actors do not work off of a script, and soldiers cannot anticipate exactly what they will encounter on the battlefield, it is through meticulous preparation in advance of the performance or battle that both the actors and the soldiers are able to successfully respond spontaneously to whatever is thrown their way.

That same level of preparation is necessary in advance of trial in order for the lawyer to successfully respond spontaneously to whatever is thrown his or her way at trial. While most of us will craft an outline for direct or cross-examination, it is only by being thoroughly prepared that we can effectively deal with surprises, such as an unexpected evidentiary ruling, a witness who forgets or gets confused, or a judge who cuts our examination short.”

While the focus of that post was on advance preparation as the key ingredient to successful spontaneity, Boies is advancing a slightly different message. While he echoes several successful trial lawyers I’ve written about on this blog on the need to work hard to prepare for trial (“‘It’s a question of how much they want to win,’ he says of his opponents. ‘Do they want to win more than going to the opera?'”), the main message is the need for rest to maintain the ability to be spontaneous over the course of a lengthy trial. The WSJ article says:

“During a trial, Mr. Boies keeps a disciplined schedule. Though his staff may work through the night, he makes sure he sleeps for eight hours since he’ll be the one in the spotlight. ‘If I don’t do that, over a long period of time I’m not going to be able to do what I need to do in court.’ He says that it’s especially important to be able to improvise during cross-examination, coming up with new questions.”

I want to argue that, for most of us, who are not leading a giant trial “team” for clients with endless budgets, advance preparation is still the answer. This is because you have a choice: you can make it a goal to complete most of your trial preparation before trial begins, or prepare at the last minute, every night. If you’ve sufficiently prepared in advance, it’s more likely you can make it to bed by midnight than if you’ve waited until the night before to prepare your cross. I’m just sayin’.

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