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Touching all the bases at trial

Recently, I was doing a little research on Hank Aaron and came across an article by Henri Bauholz called “How to Hit a Home Run.” With a recent case in the back of my mind, I thought: can trial attorneys learn a little something from baseball?

At this point I’ve had more than a few trials, but even the most senior trial dog will tell you there’s always more to learn, and I’m always looking for ways to improve. So, Bauholz’s article runs through five quick tips on how to hit a home run:

Learn how to swing.

Sounds simple, huh? To be a good hitter you need to practice and develop a “good, steady, level swing.” I think the same thing goes for trial work. If we’re going to be good trial attorneys we need to learn the basics. We have to learn (and learn again) what makes for good opening statements, direct and cross examinations and closing arguments. We have to know the law and the rules that govern the proceedings and the area of law in which we practice. And, we have to have good preparation.

Keep your eye on the ball.

Bauholz isn’t telling us anything we didn’t already know — to be a good hitter of course you’ve got to watch the ball. But sometimes it’s the simple things that we tend to neglect. In trial work, as with many other things in life, we have to stay focused. For example, we’ve got to make sure we get our evidence admitted into the record, get the testimony we need from each witness and make our best arguments to the judge or jury.

Develop a power swing.

Another big idea here, right? To be a home run hitter obviously it helps to have power. Bauholz says not every player needs this, and I think the same is true for an attorney. But, we should all be working out our “muscles” so that every once in a while we can make that emphatic charismatic statement that really drives a point home. Trial work can be entertainment, like baseball.

Wait for a good pitch to hit.

Like a sweet pitch that floats right down the middle, every once in a while the same opportunities will come in a trial. We just have to practice and develop enough experience so that when these opportunities come along we hit them out the park and use them for all their worth.

Don’t try to hit a home run.

Maybe a little counterintuitive, but think about it – when you’re really wired about something, what do you tend to do? Forget the basics you’ve learned? Take your eye off the ball? Here is where Bauholz mentions Hank Aaron – at roughly 5’10” and 185 pounds he wasn’t a powerful guy (particularly by today’s standards) but he developed a great swing, he kept his eyes on the ball, he was patient and the home runs took care of themselves. If we do the same — one witness at a time, one piece of evidence at a time — then we’ll get the verdicts we’re looking for.

Recently, a couple veteran trial attorneys came across a hard-nosed pitcher by the name of Roger Clemens and they struck out on a “rookie mistake.” The judge made a ruling that certain statements would be inadmissible in the trial but the prosecution neglected to redact them from a videotape they played in court. The result: a mistrial. In looking for that home run, they forgot the basics.

The thing to remember, however, is that all of us will strike out at some point. We just have to wait our turn and courageously step back up to the plate.

2 comments

  1. As if the trial advocacy “literature” needed another person advising trial lawyers to “do good and avoid evil.” John W. Davis probably had no idea what he was starting when he wrote his “go for the jugular” piece.

    BTW – you would have been better off leaving your take on the Clemens (not “Clemons”) mistrial out of the article. There are lots of possible explanations for what happened there, and whether it was intentional or accidental (almost certainly intentional). The various criminal justice blogs have discussed them ad infinitum. But no one attributes the move to a “rookie” mistake (though it clearly was a mistake). The only rookie mistake here is including that particular point in this story.

    The DR ought to reconsider publishing this particular blog. The “authors” consistently say uninformed, unintelligent, or self-evident things (just what you would expect from young lawyers). All blogs do this, of course, but some provoke interesting discussions in the process. I take it that is what saves them. I don’t mean to single out this particular story. It’s not the worst offender (in fact, it is better than most), just the most recent.

  2. Agree with Pushkin; at the very least, someone from TDR should be editing these blogs. I stopped reading when the author said he had a few “trails” under his belt.