If 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’.

I’ve been reading Malcolm Gladwell’s Blink. Actually, I’ve been listening to the book on CD during my long commutes between Santa Barbara, where I live, and Los Angeles, where I mostly work.

I really like Gladwell, because he seems to dwell in the world of irony. In Blink, he capitalizes on how we often make more accurate decisions quickly, based on less information, than we do if we take more time and are weighed down with more information.

In one part of the book, Gladwell focuses on spontaneity. He discusses the improvisational comedy group, “Mother,” which performed at the Upright Citizens Brigade Theatre in New York city. He points out that, while the actors acted spontaneously on stage, reacting to what other actors said without any prearranged script, they were only able to perform so seamlessly because they spent a great deal of time both practicing and conducting post-performance analysis of each show.

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.

Legendary trial lawyer Edward Bennett Williams took this level of preparation a step further. His preparation included “devil’s advocate research” which prepared him for surprises his opponent might hurl at him during trial. In an interview published in the Winter, 1986 issue of Litigation, he said:

“I believe that a lawyer should always have the devil’s advocate. In my office, the devil’s advocate researches each of our cases as we prepare it, persistently finding the holes and forcing us to prepare specifically against each of them. Whenever I go into court, I have completely prepared both sides of the case.

Some trial lawyers do not want to do this. They say, ‘My opponent is skillful. He will find all the law on his side. I am going to prepare only my side.’ But I don’t like it that way, and I don’t think it can be done that way.

I believe a lawyer must prepare both sides so that he will not be surprised by whatever may be hurled at him. After he is prepared in this way, even if his opponent does come up with some detail that may have escaped him, it cannot be so far from the facts already known that it will completely surprise him or put him at a total disadvantage.” (Litigation, Vol. 12, No. 2 (Winter 1986), p. 37.)

So prepare for trial like you’re taking the stage or walking onto the battlefield.

Everything I’ve ever read and heard about trial preparation, including cross-examination, points to preparation as the single most important element of success. I know that strategy has always served me best. But what about the role of spontaneity? Surely, it’s not for new or uninitiated trial lawyers. But a recent post at The Velvet Hammer, in which Karen Koehler, an experienced trial lawyer, describes her experience cross-examining an expert at trial, highlights spontaneity as a crucial part of her strategy. She says:

“Us lawyers spend a lot of time preparing for cross, thinking about cross,  going to classes to learn about cross, and basically obsessing about cross and scaring ourselves to death over the prospect.  But here is the truth.  There is no one perfect way to do cross that works on all expert witnesses.  There is no magic bullet that will work every time.  Did I read his report in advance – yes.  Did I read a few depositions he had given before yes (thanks Ben Wells).  Did I make some notes – yes.  Do I know the chapter approach – yes.  Do I know the rules approach – yes.  Have I gone to reptile – yes.

But in truth, I do not know what I’m going to do in cross until Jodi sits down and it is my turn.  Being able to be in the moment.  Not focusing on obscure minutiae.   Being able to figure out how the message can be conveyed to the jury as quickly and powerfully as possible.  This is what is needed in cross.  At least for me.” (Emphasis added.)

In Cross-Examination: The Mosaic Art, John Nicholas Iannuzzi discusses this intersection between preparation and spontaneity. He says:

“[A]s you cross-examine on your feet, even if you have a full-blown cross-examination script in hand, you are not hide-bound by that script, but are continually revising and adjusting the cross-examination to accommodate the twists and turns that inevitably arise as the witness twists and turns to elude the thrusts of your questions. Therefore, that capacity and flexibility to improvise and formulate cross-examination quickly, while on your feet, is the same capacity which permits you to formulate your attack well, quickly, and professionally, despite the shortness of preparation time.” (p.127)

The key element here would seem to be confidence. Solid preparation builds confidence. This also holds true when taking depositions. If I am for some reason ill prepared, I remain glued to whatever outline I’ve created. When extremely well prepared, I feel far more comfortable drifting from my script, comforted by the knowledge it is available for me to retreat to, if necessary.

It would seem, then, that  preparation and spontaneity do not play equal roles, since spontaneity thrives on preparation. For most of us (who are not Robin Williams) the converse is probably not true.

So much in our lives, both professional and personal, lies outside our control. Focusing on the professional, most lawyers will never be fortunate enough to be able to limit our practice to only perfect clients who march into our office carrying a perfect set of facts which, when presented to a judge and jury, are virtually guaranteed to yield an excellent outcome.

A less pessimistic view is to recognize that what makes our practice so interesting and challenging (on those occasions when it is interesting and challenging) is the fact that we are forced to take a set of imperfect facts, involving a group of imperfect actors, and turn water into wine, capitalize on the positive, downplay the negative and procure the very best result for our clients. Sometimes this means pulling a rabbit out of a hat.

Given that so much is beyond our control, it would seem to me to make all the sense in the world, at least professionally, to take steps wherever we can, flex our muscles, to influence an outcome to the greatest extent possible. In the interest of progressing beyond the general to the particular, I’m referring once again to the issue of preparation.

This time, though, my focus is on preparation for settlement discussions. I’m thinking specifically about a recent settlement conference I attended in an employment discrimination case. The case was nearing trial and this settlement conference was the parties’ one last chance to talk turkey. Because this case was pending in federal district court, there had been a pretty decent interval of time, a few months, between completion of discovery and the settlement conference (in state court, by contrast, at least in California, the parties may not complete discovery until a month or less before trial). I made the assumption that because I was immersed waist-deep in writing motions in limine and formulating trial strategy, that my opponent–an older, more seasoned lawyer–was surely equally immersed and conversant in the facts and theories of the case.

Eh . . . Not so much. While we were sequestered during the first part of the conference, the judge ultimately decided to bring all the lawyers together because he figured we might make more progress debating the merits mano a mano. It then became abundantly clear that my opponent didn’t know his case. (In hindsight, I might have been tipped off to this by the fact that he had just days before served 17 motions in limine, several of which had nothing to do–literally nothing at all to do–with the facts of our case.) Worse, not only did he not know his case, he was haughty, bombastic and steadfastly indignant about the absolute, unquestionably unquestionable merit of his client’s discrimination claims, only he had no evidentiary basis to back them up. It was kind of ridiculous, really.*

What kind of message does it send for a lawyer to be out of touch with the key facts of his client’s case so close to trial? I can tell you what kind of message it doesn’t send. It doesn’t inspire fear or grave concern. It doesn’t, and didn’t, make us rush to write a check. The case did ultimately settle, but it was a “cost of defense” settlement in the purest sense. Actually, it was a-little-less-than-half-the-cost-of-defense settlement. In other words, great outcome for my client, not such a good outcome for my opponent.

In fairness, the plaintiff didn’t have a kick ass case to start with. In fact her case sucked. And we knew it. So this story might not be the most potent example of how preparation can make a difference in settlement negotiations. But it is a cautionary tale, because counsel was so out of touch with the facts that, even if his client had had a really good case, we still wouldn’t have paid much. His lack of preparedness made his client’s case weak, regardless of the facts or evidence.

*For example: the plaintiff’s employment was governed by a collective bargaining agreement. This was no secret. The agreement had been produced and referenced repeatedly in discovery, and the fact that plaintiff’s employment was so governed constituted a major component of our defense. When given his turn during the joint session of the settlement conference to articulate his client’s position, however, almost the first words out of my opponent’s mouth was a suggestion that “this was the first he’d ever heard” about any collective bargaining agreement. Just ridiculous.

Having the time and inclination to prepare as much as necessary–even over-prepare–really is a great equalizer when it comes to the trial lawyer’s craft. I had the good fortune to practice for a brief time with a distinguished aviation trial lawyer, Lee Horton, who gifted to me a primer he wrote years ago to help young associates learn how to try a case. In the Preface to this primer, he wrote:

“Whatever success I have had as a trial lawyer has been based on the following very simple rules.  These are: 1. Recognizing that there are a lot of people smarter than I am, but only a few that can outwork me.”

I am saving the remaining 3 rules from his primer for future posts. But when I read this first rule I found it to be a comforting revelation. I rarely hold the opinion that I am the smartest guy in any room. But when I remind myself of this first “Horton Rule,” I am empowered with the notion that there is an additional X factor that I alone control: how much time and effort I devote to being the better prepared lawyer in the (court) room.

It can be difficult to know precisely how much preparation is necessary. I find that the first time I do anything I tend to heavily over-prepare. For example, I do not frequently argue before appellate courts. However, a few years back an opponent appealed a favorable ruling I obtained on an anti-SLAPP motion. Fully briefed, it came time for oral argument of the case. I knew that I would want to over-prepare because only then would I feel ready for my first appellate court oral argument. I also knew I didn’t want my client to bear the financial brunt of this need to over-prepare, so I queried a few of my partners who had more appellate experience about how long they would typically spending preparing for such an oral argument. While I ultimately spent about three times as much as my partners suggested, I only billed the client for a third of my time.

We can learn from other disciplines about how much preparation is enough. I studied piano as an adult, and my teacher had attended the Moscow Conservatory and often shared stories from his time learning from one great master or another. He once described how hard he would work to prepare for a solo performance: when he thought he had memorized every nuance of a piece he would set his alarm to go off in the middle of the night. He would wake from a deep sleep, go immediately to the piano and play the piece. Only when he could literally play the piece, including every nuance, while still half asleep did he know he was really ready to perform.

There are multiple ways in which excessive preparation can be a weapon. I have learned from judges and mediators that the party whose counsel is better prepared is always at a distinct advantage in a pretrial mediation or settlement conference. On the other hand, there is no rule that says you have to make your opponent aware how prepared you are. I am a great believer in treating opposing counsel as a mushroom (i.e., keeping them completely in the dark) when it suits my strategy. Sometimes I want the element of surprise that comes from not revealing how prepared I am until it’s too late for them to catch up.

Is there such a thing as over-preparation to the point of diminishing returns? Undoubtedly. The key is to have enough lead time to accommodate the preparation you need without sacrificing your health, including mental health. Like most everyone, I pulled the occasional all-nighter in college and law school. But it was exhausting then, and it would be really exhausting now. Definitely not a good way to start a trial.