This article is going to be about two topics that combine in many ways, being aggressive and being prepared.
I really don't like to use bad language in a post but there is a saying that trial lawyers have which everyone who appears in court should know. It deals with the methods some people use in handling their cases.
"He confuses being aggressive with being an asshole."
That is a slight variation on the old saying, "You can get more flies with honey than you can with vinegar".
Being aggressive in a lawsuit is fine and, indeed, is usually the appropriate demeanor to have but being aggressive and being rude, condescending, or mean is not the same thing.
A person can be aggressive in a lawsuit and yet still reach agreements on most matters, be willing to reschedule or work around other's schedules, and in general be a good human being. Plus, when you are nice to people they generally want to be nice to you. In a trial, being rude to a witness when you are questioning them is the quickest way to alienate a jury or a judge, not to mention the witness themselves. As we discuss in The Guerrilla Guide to Picking a Jury, if you know there is a witness that is going to be mean to you or hard to deal with, you can address that problem during voir dire in such a way that the jury will not hold it against you and will hold it against the witness when it is time for you to be firm.
However, the key to being aggressive is being prepared.
Know your case inside and out. If you have looked over the evidence in your case less than ten times, and I mean really looked it over, then you haven't looked at it enough. When my office was at its largest, I had a staff of 12-15, depending on the day of the week and whether some part timers were there. That included three attorneys that were junior to me as well as secretaries, assistants, and others. Yet, every time I prepared a case I personally went through and labeled all of my exhibits, made the copies of the exhibits that were to be given to the judge and the other side (as well as those for my trial notebook and the exhibit notebooks for the jurors if I was using them), wrote out my witness and exhibit lists, etc.
I wasn't a control freak as so many attorneys are and it wasn't that I felt like no one else could do the job better than me. Instead, doing this was one final time I got to look at each exhibit and reevaluate each witness to see how they played into the case and fit into the overall scheme.
After my first trial, where I was caught by surprise on something, I swore that it would never happen again in a trial and it didn't. The reason for that is that every piece of evidence and every question I planned on asking, I always asked myself "what if it doesn't; go the way I think it will" and then I prepared for that contingency as well.
This not only helps you to be successful in your trials, it also makes them go faster which will gain the appreciation of the judge.
By the time your trial starts, you should have went through every phase of it multiple times in your head. You should have not only went through what you will do but also, and perhaps even more importantly, what your opponent will do. What witnesses will they call and in what order? What questions will they ask? What evidence will they offer? What will be your objections to the evidence and, if the judge overrules your objection, what case law do you have to have to support your position?
In the next few weeks we will be discussing a Trial Notebook and why they are so important but in the meantime, if you are involved in a lawsuit the two thing you have to concentrate on are 1) being nice but aggressive and 2) being prepared.
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