Sari Swears Podcast: Practice Makes Progress

If instinct is your only strategy in the courtroom, you've already lost ground.

This week’s episode might ruffle a few feathers.

Because I’m calling BS on the myth of “natural trial talent.”

You know the one. 😉

The idea that great trial lawyers are just BORN that way.

That some people just have it.

Instincts are a starting point.

BUT they’ll only take you so far.

If you’re not practicing, really practicing, you’re playing small.

In this episode, I talk about:

👉🏽 Why you confuse instinct with what it really is: trained responsiveness

👉🏽 How trial lawyers need to practice like musicians or athletes

👉🏽 Why making mistakes in practice is exactly what you need

👉🏽 How mindset always wins over technical skill

It’s honest.

It’s direct.

And it MIGHT just change how you prep for your next trial.

Tune in NOW! 🎧

Love,
Sari 💖

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“It’s not that you’re born a natural. It’s that you’ve done the reps. You’ve trained your brain and your body to respond a certain way in the courtroom. That’s not magic—it’s muscle. And every lawyer has the ability to build it.”
sari de la motte

TRANSCRIPTION

So there's levels of non-verbal intelligence, but we don't even get there until we're aware of our own non-verbal communication and we can't be aware of our own non-verbal communication unless we are regularly practicing. You're listening to Sari Swear on the Sari Swears podcast.

Welcome to another episode of Sari Swears, love to be with you today swearing along with all you, motherfuckers. But today we are talking about practice, how it makes progress and why you aren't doing it and why you should be doing it. So it's been very interesting as of late, I just had a client that booked a couple of days with me. One day working on voir dire, second day with a couple of mock juries. And it was so funny because it's one client. And he walks in... well, actually he doesn't walk in. Two strangers walk in on the day of day one, and then three more strangers. And then finally my client, he brought five team members, forgot to tell me that he was bringing, maybe it was only four, but anyways, so that was fun.

But at the end of that two days when we were talking about what their learnings were and what they took from that time, he and everyone else said that practice is so important. We've been running these new Command the Courtrooms, for example, and we have another one coming up in November. November 13th and 14th is our last one of the year, and it's going to be on opening. So if you haven't already got your seat, go to sariswears.com/opening. But they've been incredibly popular. We've sold out every single one. And when we ask them the question, those 12 attorneys who've come out to play on either, Boy Dear opening or damages, what are you taking away? We also hear, oh my gosh, it's so important to actually get it on your feet and practice.

In fact, I have a client who's been a client of mine for 20 years now. And he will say to me, I book stuff with you primarily because I know that if I have a session coming up with you, you're going to make me practice and I just won't do it on my own. So obviously, y'all understand the importance of practice, but you're not doing it. So today we're going to talk about actually doing things in force today, which is unusual because you know I love my threes. But we're going to talk about the importance of practicing. You get it, but I'm going to flesh that out a little bit more for you. We're going to talk about why I think you're not doing it and I'm going to show you ways to do it on the regular.

All right, so the first thing that I want to point out is that practicing trains your instincts. I'm going to do a whole podcast episode on instincts because I hear that a lot in the trial lawyer world. Trial lawyering is all about instincts. Then the new thing now, especially with big data, is you can't trust your instincts, which I think is fucking bullshit. But what I will say is that instincts do need to be trained. When I was looking up some information on instincts and preparing for that other podcast episode, what I found was that instincts are created in two ways. One, we're born with certain instincts as we've talked a lot about in this podcast. A lot of your instincts just come from your brain trying to keep you alive. So we all have the instincts to look out for our physical safety due to our brain, but many instincts are also created environmentally.

So for example, I don't think it is, I don't know, luck of the draw that I am a non-verbal expert. I grew up in domestic violence. I learned very early how to take the temperature of a room to literally keep myself safe. And now I am hyper aware of non-verbal cues from other people. So the environment also has a say in how your instincts are created, but I do think that your instincts need to be trained. For example, instinctually when we are speaking to a group and an individual in that group, whether that's a group of 12 like in most juries or if there's a group of 300 people. When an individual in that group asks the question of the speaker, we tend to walk toward them. And one of the things that I train my trial attorneys when they come out and work with me and they're practicing on their feet is to walk away from the person speaking.

Now we have a very specific way to do that to show that we're still listening, but the reason that we don't walk toward the person is we cut off the entirety of the rest of the group. The person starts to speak softer, so then the group can't hear them. There's all kinds of reasons why we don't, but there's an example of having to train your instincts because your instincts are to walk toward the person again because that's what's normal in individual communication. But we're not in individual communication when we're speaking to a group. So we have to train our instincts. Another example, we tend to use smaller gestures when you're practicing, for example, when you're here and you're practicing tend to be really small. And the reason for that is because 99% of the time you are not in front of a group, you're gesturing.

We almost all do it naturally. I've rarely met anyone who never gestures. But you're most often in small groups or one-on-one. So that's an instinct that needs to be trained, that you need to have bigger gestures in front of a group or else you look small or you can't command attention or any of the things. So training your instincts comes with practice and we know that the brain can create new neural pathways, and the way that we do that is by creating habits. And the way that we create habits is by doing things over and over again. So one huge benefit of practicing actually getting up on your feet and doing the thing is that you're going to be creating those new neural pathways, those new habits, and that's going to help you train your instincts because not everything that we do in trial, you can rely on the instincts that you were either born with or from your environment. Because trial is a very different environment and as you continue to remind me, you're not in trial that often. So those things need to be trained.

The second benefit from practicing is that it develops your non-verbal intelligence. I hear a lot of people want to come work with me and they're like, "Because I know you're a non-verbal expert and you can help me communicate non-verbally." And my answer to that is always you already do communicate non-verbally. What I'm going to do is help you communicate non-verbally on purpose. See, we're all communicating non-verbally just by being in these bodies. We always are sending signals to our audience, to each other, and the point of non-verbal intelligence is to develop your non-verbals, your body language on purpose, that what you're doing is purposeful and you mean to be conveying the message that you're conveying. Because honestly, oftentimes we'll see this all the time when you come out and work with me here in Lake Oswego is that you are communicating something that you don't mean to communicate because you're being sloppy with your non-verbal communication.

I talk about three levels of non-verbal intelligence. The first level is yourself, which is what we're talking about really today, is that you're extremely aware of how you communicate non-verbally and eventually you're doing that on purpose. But the next place to go is once you're aware of what you are doing non-verbally, how can you then watch other people and read their cues so that you can meet them where they are. Not guessing at what they're thinking or feeling because I don't believe that can be done through non-verbals. As I just said, oftentimes you will communicate something you don't mean to communicate, which means that somebody could think that's what you mean and that's not even what you meant. So there's an example of how, I don't think you can read people based on their non-verbal communication. We try, that's why we want to be very specific in what we're doing because people will take messages from what we're doing.

But the second level is now you can read other people and meet them where they are and work with that. And then the third level of course is group dynamics where you're understanding how a group, whether or not they're formed for example, that's a non-verbal thing that you can be looking for. How they're viewing individuals in the group, all of those things. So there's levels of non-verbal intelligence, but we don't even get there until we're aware of our own non-verbal communication and we can't be aware of our own non-verbal communication unless we are regularly practicing. The third reason why you should be practicing is it builds confidence. Why do we freak out when we get in front of a group, whether that's a jury or we're giving a CLE or whatever it may be? Well, we tend to think, well, because I'm afraid of the jury and I'm afraid I'm going to lose my case. All of that, for sure.

I think there's a lot of fear there. We talk a lot about that here in the podcast. But in terms of the actual delivery of the opening or whatever it is that we're talking about, the reason why we tend to freak out is because it's not familiar. Practice makes it familiar. That's what practice does is it gets you in your body so that your brain, again, remembers our brain, I'm always talking about your brain because I want you to understand this. Your brain is wired to keep you safe. Anything unfamiliar, the brain is automatically going to assume it's not safe and it's going to ramp up the hormones, the adrenaline, all of the things, the fight or flight response to get you out of the situation until it can determine that it is safe. Now, we don't want to have that fight or flight response when we stand in front of a jury. At least we don't want to have it for a long time. We want it to go away quickly.

And the number one way to do that is to make it as familiar as possible. So part of that is just getting up even in your own office and practicing so that your body is aware that you've done these motions before, that you've said these words before. The second level, of course, is practicing in front of an actual group. The third option is going in front of a mock jury. And until you are doing all of that so often that your brain no longer sees it as unfamiliar, i.e., a threat. The fourth reason why you need to be practicing is that as I've alluded to here, but I've said throughout this podcast in general is that if there is a contest between what you say and what you communicate non-verbally, the non-verbal communication will win every single time.

People will go with your non-verbal message over your verbal message, if there's a mismatch. Just think about times that I've observed where you are talking and you will say, let's say you're in the defendant's story portion of the H2H template opening. And you say something like, and then she died, and then you move on. Now the words she died are, those are sad words, but if you just say them, sometimes the jury just misses it completely versus when you non-verbally mark them, when you slow down, when you say things like, and then she died. And you hold the space with a pause, right? That is going to make, and I have gotten most of the ums out of my speaking, but right is my new one. Now you guys are going to listen for it too, which is good because that makes me more cognizant of it. So apologies for continually saying, right.

But my point is that you can say someone died or you can say it with good non-verbals and actually sell it. When we're creating on our feet, for example, and we're practicing, that's when we can play with, how should I say this? What kind of gesture should I use? What should my face look like? All of those things versus typing, she died behind a laptop. So it's going to train your non-verbal intelligence, but it's also going to help because that non-verbal intelligence is what's going to communicate more so than even the words that you say. So let's talk about why you don't practice. All right, so I'm going to go through these one at a time because you think you have good excuses and I'm going to blow them right the fuck out of the water. So the first one is, sorry, I don't go to trial that often, so that's why I don't practice because why would I spend 20 to 30 minutes a day, for example, practicing something that I don't do that often?

Well, let me share a little information with you. I'm a musician, as many of you know, I have two advanced degrees in music and musicians practice way more than they will ever, ever perform. They practice hundreds of hours sometimes for a 10-minute recital piece that they're going to play. And recitals are often twice a year, most of the time once a year. So that's about the rate that many of you go to trial. So if they're doing that to prepare for a 10-minute, that's not even professional musicians. We're just talking about my kid right now practicing cello just to learn how to play in the recital in the spring. So that's not an excuse. Look at athletes, athletes practice way more than they ever play in games, right? Oh, there's the right again. Olympians, Olympians practice for something that happens every four years and that performance that they're going to do every four years is often just a few minutes long.

They all practice way more than they'll ever perform. And here's what I want you to be thinking about, is that the reason they do that, especially in terms of the professional athletes and Olympians, is because what is at stake is so important that they know that the practice is going to be the thing that will either win the game or get them the medal. Don't you think that what you are doing is even more important than winning a gold medal or a basketball game? It is, we're talking about actual people's lives. Trial experience used to lead to the kind of skill that we need because attorneys went to trial way more often than they do, but you don't go to trial as often anymore.

And so, instead of fixing that deficit you just let go practicing all together and now made it into a good excuse. Instead of saying, "Well, we used to get so much more practice because we were in trial all the time, but now we're not, so we really need to find another way to do that." You've said, "Well, because we're not, I guess, I don't need to practice." And nothing could be further from the truth. Now, I know some of you are worried about, quote, unquote, "learning on the job" to become a better attorney. And I know student doctors, for example, we don't just hand them a scalpel and be like, good luck. They're working with cadavers, for example. But you have to practice so that you don't feel like you are just learning on the job, that's going to help. Not going to trial as often means you should practice more than less because you aren't getting that practice that you would normally get in trial.

Think about when athletes are benched, for example. So you're, what are they called? The second runner up? No, that's not the phrase. What is it when you're on the bench and you could be pulled in anytime. You're not the first. See, if Kevin was in here, you're not the first string? Maybe that's it. I don't know. Do you not practice then? Do you say, "Well, I'll probably never be called into the game, so I'm not going to practice that much." No. What if the coach puts you in? Here's what I really want you to get. You have to decide whether or not you're a real trial attorney. And if you decide that you're a real trial attorney that goes to trial, it doesn't matter how many times you go to trial or how often you go to trial. If you've decided you're a trial attorney, that shit takes practice, the end.

All right. The second reason that you're not practicing. Now, this isn't one that you give me. This is one I'm going to give you is arrogance. Listen, you think you can wing it. Everywhere else you value hard work. I hear that all the time. What does it take to be a trial? Hard work, hard work, hard work. That's the number one thing. Hard work. It's the holy grail, that and preparation, which is also hard work, right? That's what you guys tout out all the time. That's what it takes to be a great trial lawyer. Hard work except in this one area, you'll shove information into your brain until 2:00 AM the night before a deposition, but God forbid, you spend 20 to 30 minutes practicing. Now, some of you are absolutely totally naturals, I guess, is the word I want to say. I'm a natural. I was born to do this work. I was born to be a speaker on stage, all of the things.But it also took practicing and training to get me to where I am now.

Even if you are a natural, which many of you are, that doesn't mean that you shouldn't be practicing whether that's on your own or in a cohort. A lot of our H2H-ers get together to practice or come out here or whatever it is. Because that's only going to continue your mastery. You don't get to say, I'm so good at this and then not practice. Now I know many of you have had the experience where you are given something last minute or told you're doing a voir dire at the last minute and you're like, that's the best voir dire of my life and I didn't even prepare that much. So don't get me wrong here, I'm not comparing preparation with practice. I think you do tend to over-prepare and get into your head. And that being out there, and being in flow, and finding that beautiful space where you trust yourself and you trust your instincts, that's great. That doesn't mean that you shouldn't continue to practice and hone your craft.

When the Command the Courtroom people are out here and they are really getting hard on themselves. Some of them have, this is their first time with H2H and they're trying the skills. And they're like, "Oh my God, I'm getting it wrong." And you can just see they're being really hard on themselves and I say, "Listen, I want you to be compassionate with yourself as you're learning." But I also want to say this and then I move over, "What the fuck do you expect? Do you really think that you can come here and in two days learn this skill so that you don't struggle with it at all?" That's some fucking arrogance right there. Stop your fucking whining. This shit takes practice. If you want to get really good at presentation skills or voir dire, all the things that we're here on the regular, on our feet working with, that takes time, that takes practice. It's not one time you come out for two days. That's the arrogance I'm talking about.

It's the people who are continually willing to work on it even when it's uncomfortable, even when they're making mistakes, even when it looks dumb, even when it feels stupid. That's the attorneys that go on to really, really hone their craft. So I think you don't practice arrogance. You either don't think you need it or you try it and you're like, "Well, this is weird and this feels awkward, so I don't want to feel uncomfortable, so then I just won't practice." That's arrogance.

The third reason why you don't practice is time. Speaking of whiny babies, this is the big one. This is your big excuse for everything. I know that you're busy, but what are you busy doing? First off, many of you are doing things you shouldn't be doing, which I'm going to talk about in a minute, but the big thing that I see across the board is many of you, especially those of you own your own firms and you can control this. I know some of you can't, is you have way too many fucking cases, way too many cases. There is no way I agree with you that you can spend time practicing when you have 200 cases, that's your caseload. That's fucking crazy ass shit. That is not trial lawyering, that is just paper pushing and trying to settle as much as you can get settled.

Now, there's different types of business models. There's types where one partner is doing all the settling, keeping the doors open, and the other one is actually the trial lawyer out there trying the cases. Maybe that'll work for you. Many of my mastermind clients have gone on to reduce their caseload down to 10. I have one who's down to 10 who's like, "Ah, I think it's still too much, eight." And then you're like, "That could never happen." It can because it is, because I have clients doing it, I do. But the second reason outside of having too many cases is that I think that the reason you don't have time is you're doing things you shouldn't be doing. Here's what you need to recognize. You are the talent. Listen, Beyonce is not up there shaking her booty and doing her amazing shit that we all pay lots of money to see and then out selling T-shirts after the concert.

She's the fucking talent. She spends her time and energy where she gets the biggest bang for her buck and that's what you need to be doing too. Some of you need to be hiring an associate like yesterday, "I can't afford that." You can't afford not to. Your results are going to get better and better the more that you free yourself to actually be the talent and block off your schedule so that you are not getting pulled into a million different directions. Look, lots of this is you're just in a habit. You started when you became a trial lawyer and you did all the things. Maybe you are brand new, maybe you're working for somebody else. Maybe you didn't have that much staff and now you have the staff or need the staff and you're just in the habit. I've always done it. You got to level up. And when you level up, you have to let some shit go.

Even those of you who are the most busy, I know that you can set aside 30 minutes a day, hell, 5 minutes a day would make a difference. We had someone who was a coach for us in the H2H Playground who decided they really wanted to master the designed alliance, which is about two minutes tops when he really got it down well. And he decided that every day for a year he would spend five minutes practicing the designed alliance and that is what he did. And now he can do that fucking shit in his sleep. Five minutes, five minutes a day. Y'all have that to stand up, and work on your gesturing, or your pausing, or the hook that you're going to give in your opening. And the fourth reason that you don't practice, and I think this is a big one, and so that's why I want to spend some time on this here at the end, is you don't know how.

It's awkward, you're like, "What am I supposed to be doing? Do I just stand up? Do I write out my notes and then try to memorize them?" You don't know how and the times that you have practiced by yourself, you're like, that didn't get me where I wanted to go and it was awkward and it was weird. So yeah, I'm not doing that again. So never fear, your Finnish mama is here. I'm going to give you now to end our podcast four ways to get yourself practicing, the know-how, the how to do it. Because hopefully, I've convinced you that it's important to do and that your reasons don't hold up except for maybe this last one and I'm going to fix it for you. All right, so the first thing I have for you is to set a regular time. It's really easy to not do this if you try to just fit it in wherever you can.

If you want to make this a habit, then make it a habit, stack it with something. If you think about Atomic Habits and how he talks about habit stacking. So maybe, I know I have several of my masterminds have created a schedule in where the first thing that they do on two mornings a week or sometimes it's every morning, depends on my mastermind, is they come into the office and they read for 30 minutes, the newest trial book or whatever it may be. They do some learning for themselves. So maybe right after your learning time, you're going to spend 10 minutes to start on, just something small, even five, and that's going to just be your practice. At the end of the time that you read, that's during your practice. Or maybe it's after I come back from lunch, I'm going to stand up and do five minutes of the designed alliance, of the first five minutes of my opening, whatever it may be, but make it the same time.

Maybe it's only once a week to start. Every Monday after lunch I'm going to practice. Great, but it has to be at the same time or you won't do it. And also make that manageable, right? Start small. It's not one of my four things it probably should have been, but start small. The second thing is I want you to videotape it. It doesn't have to be fancy equipment like we have here. I want you to take your iPhone or your iPad and just prop it up somewhere where you can get nearly a full body shot. If you can't get a full body shot, at least waist up, and I want you to videotape the five minutes of practice, or 10 minutes, or 30 minutes you're doing. And I want you to watch yourself because that's where your best learning is going to come.

Yes, the actual doing of the things is going to help you with the familiarity, with the neural pathway work, with training your instincts, all of that. But this is where you're going to really learn in terms of non-verbal intelligence because now you're going to know what weird shit you're doing. Because everyone has weird shit that they're doing. Why do I hold my hand like that? Why am I picking up my hair like that? What am I plucking out of my butt like that? Whatever it may be. Again, so if you're doing five minutes of practice and you're going to watch it back for five minutes and you're going to be like, "Oh my God, I hate watching myself." This is like saying, when people use flip charts here, "Oh my gosh, my handwriting is so bad." What do you suggest for somebody who's handwriting is so bad?

My answer is always fix your fucking handwriting. Practice if you need to. Use block letters, that's not an excuse. The same thing here. I hate seeing myself on video. Then watch yourself more on video until you don't hate it, until you're doing stuff and you're getting rid of all the annoying things that make you hate watching yourself on video and you're like, "Ooh, I actually did that really well." Work up to that point. But this second step is probably the most important if you want to be really, really good at what you do. Know what you're doing non-verbally in a very intimate way, that sounds really gross. But whether you do this with clothes on or close off, it's up to you. All right, just lock that shit down. Nobody wants to see that. All right, number three, calendar time with an audience. So one of my former masterminds does a focus group every single, I think every month, but maybe every week. Even if they don't have anything coming up right away, and he does that to get in the practice.

So everyone, let's just assume it's a month. Every single month, he's at least getting an hour or two, if not three, of practicing, he's doing an actual voir dire and maybe an opening in front of a focus group. That's a little different than focus grouping when you're throwing facts out and seeing what they know... He's using it as time for practice. Maybe he's doing both. Calendar time in front of an audience. Maybe that's just your associate and your paralegal and the guy down the hall and every month you give each other an opportunity to practice in front of each other. Because that's going to change things. You're going to want to stop and try things differently when you're at home and that's fine, that's good, or in your office. But when you're in front of someone, you have to keep going and just do it and see how it works, right? There's that right again. Thank you for helping me with that.

And by the way, I didn't put this in one of the four and I should have, you're not typing this whole thing out. Go back and listen if it's back, hopefully that one has come out before this one. But basically, we don't ever type out word for word anything we do in H2H ever, because we don't want you creating that neural pathway and so you're not looking at notes, you're not typing out notes, you're not memorizing anything. You're just standing up and trying it and creating that neural pathway that you can talk about your case. Even if you want to do this and count this as practice. Here's the easiest thing, it just came to me right now. When you schedule an audience, I want you to say, can you guys come in and just for 10 minutes maybe gather some people in your office, listen to me talk about this case for 10 minutes.

I just want you to practice standing up and talking about your case just like these people never heard about it ever before and you're just telling them what it's about. Just that. Videotape that. Don't call it an opening. Don't call it anything that it isn't. Just practice being on your feet in front of people talking about your case. Because eventually, this is where you end up, right? Eventually in H2H, we want to sound like you're just talking about something that you know really well. So there, that's how you can do it. Even if you just do that once a week for 10 minutes, just practice standing in front of people and talking about your case. That's going to assist you, especially if you videotape it. And the last thing you can do to help you practice, which is a little self-serving, but I gave you an extra one in there. So here it is, you can join the H2H Playground and yet self-serve in that. I get money from that, but it's not in that. It really is going to help you.

Because there, we are constantly practicing. You're either practicing in our practice makes progress call where we put you in breakout rooms and small groups and practicing with each other, or you are getting a hot seat with me and you're practicing in front of the group getting coached by me, or you're putting something in our H2H sandbox, which is our online or private Facebook group, and you're saying, "Hey, can somebody come play with me with the voir dire circle on Saturday, which is happening this Saturday for one of our members?" And a bunch of people are like, "Yeah, I can be there." It's a place where we recommend support and assist you practicing on the regular. It gives you a place and people to do that with. And so, you can go to sariswears.com/play and join right now.

We are going to close the playground at the end of this year and go back to our launch model where it's only open a couple times a year, so this is your chance to get in there now. Otherwise you're going to have to wait until we have a launch where we open it a couple times a year. But that's why, that's the number one reason why we created the H2H Playground is so you have a place to practice with other people. Because as you've seen in this podcast episode, practice is where it's at. It's what I continue to hear from those of you who come out here. Whether it's you booked two days with me and paid tons of money to do that on your own, at least I was thinking it was on your own until you brought all your staff members with you, or you're here with a group of 11 other attorneys for two days.

This is what I keep hearing, "Oh my gosh, this is so valuable. I need to be doing this on my own." Yes, you do. So here it is. Even if it's just 10 minutes a week, start with that. I'll take anything. My love, just start practicing. It's absolutely going to change everything. And that's only if you're a real trial lawyer. If you're not, then fuck this. But those of you who are like, "Yeah, yeah, I'm a real fucking trial lawyer." Then this is what you need to be doing. All right, talk next week.

Have you registered yet for our Command the Courtroom Opening Masterclass? What are you waiting for? It's happening November 13th and 14th. It's our last one of the year. Go to sariswears.com/opening and enroll today. Ever wish you had a place to practice your trial skills and connect with other lawyers who get it and connect with me? Grab your seat in the H2H Playground. It's where you get a real coaching community and strategies to actually grow your practice. Head to sariswears.com/play and get enrolled. Until next time.