If you’re not in trial very often—which is true for many of y’all—that doesn’t mean you lack opportunities to practice your craft.
Sure, the practice you get in court is important. But you shouldn’t stop there.
(Aren’t you happy that surgeons don’t only practice on the job?)
There are lots of ways to bring more practice into your practice, no matter how much time you spend at trial.
And that’s the topic for today’s episode of the FHTH Podcast!
You’ll want a notepad and pen for this one.
Enjoy!
-Sari
Mentioned in this episode:
"If you want to be a kick-ass trial attorney, you have to get familiar with all your idiosyncrasies—all the weird nonverbal things that you do or don't do. You want to be intimately familiar with them. It’s the only way that you can change them."
sari de la motte
EPISODE 225 TRANSCRIPTION
Hello! Welcome to another episode of From Hostage to Hero. Today we're talking about how to practice when you don't get to trial that much, or even if you do. All right. So I hear from you all the time that you are not in trial that much. So how on earth are you expected to get better when you don't get the trial practice? And so here is what I'm going to say. Well, before I say that, let's talk about why practice is important in the first place. First off, it gives you muscle memory. When you're actually practicing ahead of the thing that you're going to do, you're going to feel so much more confident when you have actually run through it, not just once, but many times it will feel familiar and you'll be able to drop in much more easily.
You'll create that muscle memory instead of just sitting behind on laptop, and writing up your opening, and then hoping it goes well once you get to trial. So it's going to create that muscle memory that's absolutely essential for you as trial attorneys, as anyone who's presenting information. So this goes for CLEs that you might be delivering or the PTA speech, whatever it might be, you want to have that muscle memory. You want to have felt it before you do it. It lets you function then when you have that muscle memory without notes.
So we tell our trial attorneys, if at all possible, and it's almost always possible, to deliver your opening statement or your closing statement without notes. Now, a lot of people are like, "That's impossible. My opening statement is two and a half hours long," and there's your problem, not the fact that you can't do without notes. It should not be two and a half hours long, especially your opening, even your closing. Your closing might be longer than the 30 minutes that I say for opening. I haven't really come to a right number on closing, but two problems.
First off, if your opening is too long, your jurors will not get the main points. Remember, opening is your opportunity to hum the tune that they're going to hear throughout trial from different people out of order who don't sing on key. So this is your one time to say, "Here is the song. Here's the reason why we're here," right? If that song is super long, if it's a Wagnerian opera, they are not going to get it. So you need to make that short because that's your one time that it's a coherent narrative of why we're here and what's at stake. Closing, we have the opposite problem. Now they're going to get to go do their job, but they're tired. So they know all the things, now they need to be empowered, not reviewing the evidence. That should also be fairly short.
So when you have a shorter statement, whether opening or closing, you can do that without notes, but only if you practice, right? Now, why is it so important to do without notes? Well, if you have notes and you're doing it word by word, why not just type that shit up and hand it to the jury to read themselves? You are not going to be able to work the room, to use your gesturing, to use your eye contact, to do all of the things that make a difference, quite frankly in trial storytelling, so on and so forth, if you are reading from your notes. You do not want to be tethered to your notes. Even if you're in federal court and you're tethered to the lectern, you do not want to be tethered to your notes.
Remember, your job as plaintiff attorneys is to motivate people to act. The way we motivate anyone to do anything is to have investment. And to be investment, we need to generate emotions in the jurors, we need to get them to care. And the way we do that is by caring ourselves, by generating those emotions in us, by showing the jury the way to go, by leading them there. You cannot do that when you're reading from a piece of paper. So this practice piece is so huge because it allows you to go without notes, and going without notes allows you to make those connections and lead that jury emotionally in the courtroom. But here's the other thing: the spoken word is much different than the written word. So oftentimes you'll write out your opening statement word for word, and then you'll stand up to deliver it even without notes, and you'll stumble because the way you write something is often very different from the way you say something.
When you practice, you build your confidence, you get to try different things on, you get to say, "That doesn't make sense there." Even if on paper, it looked like it made sense. It's not going to make sense when you actually say it out loud. So that practicing is going to let you have that. It allows you to work on your skills and it makes you better. All right. So that is my spiel on why we should practice. Now, again, I said this, I think, probably 200 podcasts ago, but a very well known trial attorney once said, "I don't like to practice. It makes me sound too rehearsed." I think the opposite is true. I think if you're just going off the cuff, then you are not hitting the points that you want to hit, and if you're reading from a script as we just said, that's not good either.
So when I'm talking about practice, I do not mean memorizing word for word. I keynote all the time. I do 45 minute to 90 minute keynotes. I do eight-hour trainings. I do not do anything word for word, but I have practiced my keynotes, not my trainings. I have practiced those so that I know where I'm going, what the flow is, I've had the words in my mouth, so to speak. So it doesn't feel rehearsed, it feels familiar. That's the difference for me.
All right. So there are three types of practice. The first type of practice is the practice that you do by yourself, right? So you are standing in your office or in your den and you are attempting your opening statement, so on and so forth. The second type of practice is with others. So that could be with a focus group, that could be with fellow attorneys, that could be in front of your family, but you are presenting or practicing with an audience of some kind. That could be on zoom. The third type of practice is the actual performance and say, "Well, how's that practice?" Well, because the more you perform, whether that's behind a piano on a stage or in front of a jury, the better you get. So that in itself is practice as well. The more times you get up in front of a jury, the easier that it's going to be as your career continues on.
Now, all of these are important for different reasons, right? So if you just try to get the kind of practice that happens in front of a jury, meaning the actual performance, that's not great because then you haven't built that confidence, you haven't heard what it sounds like out loud, all of the things that I just talked about. So we need the other two, right? But if all you ever did is practice by yourself before getting in front of a jury, you may not get some valuable feedback. So it really takes all three types because even if you get in front of people without practicing it on your own, and I've seen this happen, is you're kind of swirling, you're not really sure what you want to say, and your audience gets frustrated.
So all three parts are really important when you're trying to build that muscle memory. First, trying it on your own by yourself, getting the words in your mouth, seeing what makes sense out loud, getting that muscle memory, then trying it in front of others, getting feedback from either your coach or your audience, tweaking, playing, and then trying to get in front of that jury as much as possible.
All right. So how do you practice? I'm going to give you the three steps that I am going to suggest in how you bring practice into your practice. So the first one is, I don't. Do not write it word forward. When you're putting together, let's say you're opening, you do not want to be sitting behind a laptop to do that. What you want to do is get up and get some flip charts, I always recommend two, I know the easels are like 99 bucks, 129 bucks, and like two. Yes, you always want two, and you want two different flip charts, and I like the ones with the stickies on the back so I can take things off and put them around my room, right? As I'm preparing something. So you want two.
Instead of sitting and typing, the very first thing out of your mouth, you should be standing and just trying it out. But Sari, "I don't have my thoughts generated yet." You're not going to have a lot of great thoughts being generated behind a laptop. Now, some of you can. That's a great place for you to start, and then you get up and you start trying it out. But I think so many of you are so used to being behind a laptop that it's going to close off some great creative ideas for you instead of just standing up and seeing what feels right when you're on your feet. Now, if you're an H2H crew or you have the book, you know my nine-part template, you can just start at any part of those. You can say, "I'm going to start with the story, or I'm going to start with the teaching section." Maybe you don't have your hook yet, that's fine, but work it out on your feet.
The second thing is to videotape yourself. I could already hear you groaning about this wherever you're listening. Nobody likes to see themselves on video, and we all know the reason why. And no, it's not because of your weight or your hair or all of that. That's common, right? We always look different than what we think we look like. But I think the reason why we don't like to see ourselves on videotape is because we are doing all kinds of weird shit, which is exactly the reason why you should videotape yourself. I videotaped myself every single thing I did for the first, at least five years of my career, and then I would go watch it back even as horrific as it was and noticed, I became an expert on what and how I showed up nonverbally, and then I set to fixing those things.
If you want to be a kick-ass speaker, a kick-ass trial attorney, you have got to get super familiar with all your weird idiosyncrasies, all the weird nonverbal things that you do or don't do, how you never gesture, or how you drop your gestures or how you never pause or you pause too long, I rarely heard that one, whatever it may be, you want to be intimately familiar with that. That's the only way that you can change it.
And I want you to film yourself again in these three ways: so film yourself while you're by yourself, film yourself in front of your audience if you can, not always possible, film yourself in the real deal situation. You want to see how you show up differently when different things are present. I don't watch as much video of myself nowadays as I used to, but I listen to all my podcasts and I recognize that I say things over and over again that I don't want to say, and I'm trying to change that. I'd never know that if I didn't listen to it. I bet you could tell me what I say over and over again.
Number three, you need to have a working group. This is probably outside of your practicing on your own and videotaping it. This is probably the most important piece. Having somebody to work this shit out with is so huge, I cannot even tell you how important it is. When you've got other attorneys or you've got friends or you've got a focus group, I'm really talking about other attorneys or people that are willing to play with you in this, that is going to sharpen your skills more than anything else because you're going to get some great feedback, you're going to get a chance to see what other people think about it, you're going to see how you show up differently when you're in front of an audience.
And so one of the things that I just recently taught, and I may have already mentioned this, is when I was out working with TLC in their women's group and we were doing storytelling, what I had them do, and you can do this with a working group, is I said, "Let's put people in groups of four, and I want you to take your story, which in the template, of course, is the defendant's story, and I want you to create a play where everybody has a piece, and you may have to play multiple parts." But for most stories that I help generate in opening statement, four is a really good number. We normally have four key players or less, but if you have more, people can play different roles.
And so it was fun to watch and I had them come up and I said, "Here we go." And so one person was a narrator, and then the other person was the person behind the wheel of the car, and the other person was in the semitruck, and the other person was the witness, and they went ahead and told the story like a play with everybody playing the different parts. Once they did that... The narrator was the person whose case it was. I said, "Everybody gets to go away except for the narrator," which just means, "This is your case, right?" And they said, "Yes." I said, "Now, I want to see you do that, meaning you play all the parts." And what was so amazing about that is that because they just saw it happen in front of their eyes, it was so easy now to actually step in to the roles that this working group helped them actually manifest in front of them and play all the parts themselves, because this is what you have to do in trial, is it not?
When you tell the story, you have to be every person. You have to change your voice, change your posture, step out, be narrator for a minute. That's hard to do. So use the storytelling technique, get together a group of four or six friends, create a play of the story in your case, and then attempt to do it by yourself, and get that coaching and feedback from people in your working group. Those are my three things to practice. Don't write it. Stand up with flip charts. That's the first thing. Two, videotape yourself. Three, have a working group you can work with.
Now, here's some nonformal ways that you can up your trial skills even though you are not often in trial, if in fact you aren't, which most people are not. I did mention some of these in a previous podcast when we talked about how to incorporate play into your life as trial attorneys, but I want to repeat them here because I think they're really important in terms of practice. So my all time favorite is to throw a dinner party. Dinner parties are a great time for you to attempt voir dire and just asking questions and getting the group talking. I have two favorites that I use at every dinner party that I am either throwing or at. I just kind of take over when I'm there because I love practicing my questioning skills.
So the first one is I always announce, "Everybody has either a great how we met story or a great how we got engaged story." Some people have both, but I've found that almost every couple has one of those two stories that are great. "Which one is yours?" And I have never had anyone say, "We don't have a good one." Everyone's like, "Well,..." And they start laughing before they even tell it. It's fantastic. It's a great way to get people talking, and then you can just ask questions as they're telling their story. Fantastic.
Another one that I use, excuse me, is I always say, "Put them in order. Cake, pie, cookies, ice cream, which is the right order, by the way?" And they go, "What do you mean?" I said, "In order of your like of those desserts. What's your top? And then your next one, and then your next one, your next one?" And it's just hilarious how people start arguing about this. They're like, "Well, is cheesecake cake or is that pie? And where does brownies fit in this?" It's a great thing. You don't have to use these. My point is that when you are in the company of other people, practice these skills, practice asking people questions, practice having these interactions with your fellow human beings.
Another one, practice telling stories. We were creating a how to create keynotes in the H2H crew right now, and one of the things I had them do is create a story bank. It doesn't have to do anything with trial or anything with your keynotes, just what are the funny stories that have happened to you, things that have happened to you that are bizarre or weird or hilarious or embarrassing? Start writing that shit down. You can steal other people's stories. You got to, when you're telling the story, say it's not you, don't make it you, but I've heard a ton of people tell crazier stories that I retell because they're such a good story. That's going to help you with your storytelling. Practice telling stories about things that have happened to you, practice listening to other people's stories, practice retelling those stories, that gets you to be a good storyteller.
Have resonant conversations with your kids and your spouse where you're asking questions like, "What happened today? What was that like? What was important about that for you? How did that make you feel? All of the different things that are resonant conversations where we're kind of.. with the people that we live with. Have those resonant conversations with the people that are in your home right now. If you're not having those at home, how the fuck are you going to have those in court?
Take the fundamentals of coaching course at Co-Active Coaching, CTI. It's coactive.com. That's where I got my training, that's where coach K got his training, all of our coaches at H2H are trained in the Co-Active method. Their opening course, I think it's called fundamentals of coaching, is a two and a half day course, I think they do them now virtually, and you will learn all kinds of things about powerful questions and resonant conversations and levels of listening. It's fantastic, and I personally believe it's a primer for any trial attorney that wants to get really good at asking questions, not just of jurors, but of your clients. It's just fantastic. Witnesses? And join the Playground. That's why the Playground exists. Our number one reason we exist is to give you a place to play and practice. We often say, "Come and fail here first before you do it out there in trial." We're going to be opening the crew in September, so get that on your calendar. We want to invite you to come and play with us.
Practice is huge. I don't know of any other career that demands that you perform in public where the people in the career spend very little time practicing that actual skill. It's like basketball players who just show up for the games and maybe a game of scrimmage, is that what it's called? Right? The night before. No, if you want to be a kick-ass basketball player, you're going to go to the practices, constantly going to practice. You don't just show up to the games and neither should you. So I hope that helps get more practice into your practice, and I'll talk to you next week.
Simon says, "Stop working so damn hard." Simon says, "Book yourself a vacation." Simon says, "Listen to Sari." I am thrilled to once again invite you all to join us in the H2H Playground. Come and be a part of the only online working group where plaintiff attorneys learn and practice proven trial skills in a safe place while having fun. Simon says, "Become the lawyer you were born to be." Visit sariswears.com/play and join the waitlist. Ready, set, go! Wait, I didn't say Simon says. Just checking to see if you're paying attention. But for real, go to sariswears.com/play now.
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