from fearful to forceful – overcoming …to make mistakes, eat well-balanced meals, and beware of...

FROM FEARFUL TO FORCEFUL – OVERCOMING COURTROOM FEAR AND MAKING IT YOUR FRIEND

JOHN V. MCSHANE McShane and Davis, L.L.P.

8350 North Central Expressway, Suite 1200 Dallas, Texas 75206

Work: (214) 365-9007 Fax: (214) 365-9030 Cell: (214) 728-1832

[email protected]

State Bar of Texas COLLABORATIVE LAW COURSE

March 10-11, 2011 Dallas

CHAPTER 7.4

From Fearful to Forceful – Overcoming Courtroom Fear and Making it Your Friend Chapter 7.4

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TABLE OF CONTENTS

RECOGNIZE INSIDE/OUTSIDE DISPARITY ............................................................................................................ 1

TAKE SPECIAL CARE OF YOUR BODY PRIOR TO COURT ................................................................................. 1

BE PROACTIVE IN THE AREAS OVER WHICH YOU HAVE CONTROL ............................................................ 2

STAKEOUT “HIGH GROUND” POSITIONS .............................................................................................................. 2

DEVELOP AND REHEARSE A HARD-HITTING “TWO MINUTE COMMERCIAL” FOR YOUR CASE ........... 2

LOOK THE PART .......................................................................................................................................................... 3

RECONNOITER THE TERRITORY AND GET SCOUTING REPORTS .................................................................. 3

DETACH ........................................................................................................................................................................ 3

REMEMBER YOUR LIMITED ROLE ......................................................................................................................... 4

MEDITATE .................................................................................................................................................................... 4

USE A COACH .............................................................................................................................................................. 4

CONCLUSION ............................................................................................................................................................... 4

From Fearful to Forceful- Overcoming Counroom Fear and Making it Your Friend

By John V, McShane©

At a recent seminar on trial tactics, four veteran trial lawyers were engaged in a panel discussion on various aspects of trying lawsuits, Between them, these lawyers had well over one hundred years of experience as litigators, A young lawyer in the audience addressed the most senior trial lawyer on the panel and asked, "When did you stop being afraid?" The elder lawyer laughed and said, "Neverl I am scared every day, but my fear has become my friend I" The moderator of the panel then asked the other lawyers about fear, and each of them admitted, even with all their experience, they still felt fear in the courtroom, However, each confirmed that specific strategies for managing fear made a lawyer more powerful in court and fear did not have to be debilitating,

I have tried cases for 43 years and have often strugg led with fear. I have also interviewed many lawyers on the subject of management of fear in court, Based on my years of experience and these interviews, I offer the following suggestions to provide a winning formula for moving from fearfu l to forceful.

1. Recognize Inside/Outside Disparitv. One of the biggest causes of anxiety among lawyers in the courtroom is the seeming ly cool , ca lm, collected and confident demeanor of the opponent. As a young lawyer, I found it particularly unnerving to see my opponent apparently exuding confidence while I was a mass of quaking, quivering nerves. My courtroom life was dramatically changed one day when I confessed my fear to my mentor, and he laughed about my "comparing my insides to my opponent's outsides," He said, "John, your opponent is probably th inking the same thing

about you , On the outside you, too, look calm and confident. No one except you knows how scared you are , Don't make the mistake of assuming that because your opponent looks calm externally, he does not suffer from the same fear. In all probability, he is quaking on the inside also."

I experienced a dramatic example of this phenomenon a short time later, I was asked to be on a television talk show with very little notice or time to prepare, but was assured that the host would brief me on the subjects to be covered before air time. The experience was a comedy of errors with the host dashing into the studio about ten seconds before the program was to start, falling into his chair as the makeup assistant furiously wiped the sweat off his brow, and telling me that he was sorry but we would have to "wing it." I was terrified . Nevertheless, when he started asking questions, I simply answered them as best I could , When I later watched the television show with my family, they remarked about how calm and confident I appeared . I was amazed at the difference between what I fe lt on the inside and how I looked on the outside. In the ensuing years, I have remembered this lesson and not made the mistake of overestimating the confidence of my opponent.

2. Take Special Care of Your Bodv Prior to Court. Do not use drugs or alcohol to alleviate the jitters, While drugs or alcohol may temporari ly cause you to feel calmer, these substances can impair your judgment and cause you to make mistakes, Eat well-balanced meals, and beware of new foods or foods that normally cause you to suffer from heartburn, Also, make sure you get plenty of rest - you will think quicker

From Fearful to Forceful - Overcoming Courtroom Fear and Making it Your Friend Chapter 7.4

and with more focus if you are not tired and irritable .

If you find yourself speaking a little too quickly or a little too loud ly, take a few breaths and slow down . Deep breathing helps control stress by returning your breathing to its natural, pre-stress patterns. It is also helpful to do a few light exercises immediately prior to entering the courtroom. One professional speaker recommends finding a storage room or empty restroom and doing several vigorous jumping jacks immediately priorto speaking. The same speaker also recommends isometric exercises . These are stationary exercises in which one group of muscles work against another. You can press your fingertips gently together, then press harder and hold for a few minutes. These can be done whi le sitting at the counsel table waiting for the case to be ca lled . No one will know that you're reducing your fear, but it worksl

3. Be Proactive in the Areas Over which You have Control. Many of us spend a great deal of time worrying about problems over which we have no control instead of using our time and energy proactively to manage the areas of a case over which we do have control. One prominent attorney recommends making a "fear list." Every potential problem in a case is listed in one of two categories: (a) a "control" list which includes those things which the lawyer can do something about; and (b) a "no contro l" list where the lawyer is powerless to impact these items regardless of what he or she does. Examples of the "control" category are the amount of preparation, the organization ofthe files, utilizing the fear management techniques in this article, and thinking creatively to develop the best possible approach to the case. Examples of "no control" areas are the bad facts created by the client, a tyrant judge, a maverick jury, an unethical opponent, etc.

Once this list is made, the lawyer should take aggressive action in those areas over which

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he or she has control. While taking this action, the "no control" areas should be dismissed from the mind because it makes no sense to worry about something over which you have no control. Action invariably conquers fear, and this is especially true if the action is pinpointed toward the areas where it will make a significant difference.

4. Stakeout "High Ground" Positions. It is much easier to be confident when you know you are right. Any triable case will have favorable and unfavorable aspects. It is helpfu l to list those areas where a lawyer can have conviction that his or her cause is just. Once those "high ground" positions are identified , themes and subthemes should be developed around them so the lawyer is able to summon zeal , righteousness , and possibly even a measure of moral indignation with reference to these points. The passion generated by focusing on areas of "high ground" wi ll energize other areas of the case where the lawyer is not quite as confident, rendering him or her a more effective advocate.

5. Develop and Rehearse a HardHitting "Two-Minute Commercial" for Your Case. All coaches of public speakers emphasize the importance of a strong but concise introduction to the speech wherein the speaker's purpose and goals are clearly announced. Unfortunately, many lawyers are not ready with a clear and concise statement of why they are in court and what they want. For example, at a motion hearing judges will frequently pick up the file and say, "Counsel, why are we here?" Some lawyers then proceed to stammer through a long-winded recitation of what led them to be in court that day, sometimes never getting around to the specific relief being requested .

A common complaint heard from judges is that lawyers are not precise and articu late in asking for what they want. These problems are cured by the "two-minute commercial." Marketing experts and career counselors instruct people


looking for work to develop a "two-minute commercial" which concisely enumerates their merits and describes the type of position they are seeking . It is suggested that the two-minute commercial be practiced while driving to appointments and even tape recorded for listening during the commute . Developing a precise, hardhitting summary of the problem and the remedy sought, and the presentment of a one-page summary exhibit listing the relief requested, will go a long way toward relieving the jitters one has while waiting for the case to be called. The lawyer knows he or she is ready to come out swinging as soon as an opening is given.

6. Look the Part. One of the key fear management strateg ies involves knowing that you look, dress, walk, talk and organize your materials like a great lawyer. Pay close attention to your attire and personal grooming. If necessary, check out the latest edition of John Malloy's "Dress for Success." Although it may seem oldfashioned in today's "business casual" cu lture, there is merit to coming to court suited up in a conservative power suit. Personal grooming should be immaculate. Nothing saps confidence like knowing your appearance does not measure up to the image of the successful lawyer. Even if you are dying a thousand deaths inside, your stride shou ld be confident, your handshake firm and your voice resonant. There should be a glint in your eyes which will be there naturally if you have properly prepared your case and yourself.

Although the physical packaging and appearance of the lawyer is of critica l importance, the physical packaging of the case should not be overlooked. Walking into court with one's case well organized into notebooks, laptop computers and indexed document carriers shouts "I'M READY!" and is one of the best confidence boosters a lawyer can have. Further, it sends an immediate message to the opponent, the judge, and the jury that this lawyer is well prepared and means business. Even if you are not as prepared mentally as you would like, you can

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give yourself an edge by looking like you have left no stone unturned. This can be accomplished very easily by having a physical ly well organized and packaged case. One prominent trial lawyer always exhorts his staff as follows: "Even if we are not well organized, we will for damn sure always look like we're well organized I"

7. Reconnoiter the Territory and Get Scouting Reports. No college or professional football team would ever go into a game without scouting the opponents. Much of a trial lawyer's fear relates to apprehension about the unknown. Many of these "unknown" areas can be eliminated by some basic reconnaissance. Go to the courtroom in advance of the trial or hearing. Introduce yourself to court personnel. Ask for pointers about how things are conducted in that court. Watch the judge in action and formulate a list of do's and don't's, e.g., the things that seem to irritate the judge and the things that seem to cause things to go more smoothly in his or her court.

If possible, spend some quiet time in the courtroom when no one else is present. Use the time to visualize yourself in this court being successful. Additionally, it is helpful to get scouting reports on the opponent. Check with colleagues about his or her favorite tactics. When time permits, spend a few minutes watching the opponent in action at one of his or her trials. Invariably, we give unknown opponents more credit than they deserve. As we sit in the courtroom watching them make the same mistakes we make, we will develop confidence about our ability to deal with them.

8. Detach. Author and psychologist Dr. Wayne Dyer refers to detachment as the most powerful strategy for keeping our professional activities in proper perspective. This does not mean an absence of caring - it simply means that we detach from the results of what we do for a living and don't allow outcomes to define us.


Lawyering cannot define us - it is merely a profession which we practice to meet certain of our needs. The sum tota l of who we are is far greater than this profession. Too many of us gain our self-esteem and validation from what we do rather than who we are.

It is also important to learn to detach from the opinions of other people, especially opinions expressed in the form of praise or criticism. If we are inflated by praise or devastated by criticism, we have allowed another person to control the quality of our lives - an area for which we have the sale responsibility. Psychiatrist Abraham Maslow spent his entire career studying highly functioning people. He concluded that the dominant characteristic of these high achievers was that they remained "independent of the good opinion of others."

9. Remember Your Limited Role. Too many of us take responsibility for too much . A trial is a complex drama made up of many players. The players include the judge acting as referee, the jury as trier of fact, the parties and witnesses who give evidence, the court reporter recording the testimony, the clerks keeping the court's files, the bailiff keeping order, and the janitor who sweeps up the courtroom at night, in addition to the lawyers. The job of the lawyer is simply to present the client's case and attempt to discredit the case of the opponent. All too often, lawyers get caught up in the drama and start taking responsibility for other roles.

If we just remember to "keep it simple" and limit our focus to our job of presenting and attacking the evidence, life will be easier. Since we have no control over what our opponents, the judge, the jury (or even the janitor) does, why not just acknowledge this and be proactive within our own sphere of influence? Adopting this mind set helps us to remain ca lm when we feel that the judge is making erroneous rulings, a jury has all indications of being a "runaway jury," or the opponent is engaging in unethical tactics. Since

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we have no control over any of these problems, we should stay focused on our limited ro le and perform it to the best of our ability.

10. Meditate. Fearful thoughts about a case frequently trespass on what should otherwise be happy moments. In order to clear the mind of troubling, fear-based thoughts, it is helpful to develop some type of meditation practice. It is beyond the scope of this article to teach meditation; however, any major bookstore will have dozens of books on meditation and the Yellow Pages of any urban telephone directory wi ll provide names of instructors who specialize in teaching meditation. Once a lawyer has developed the abi lity to clear the mind offear and replace it with positive, relaxing, and energizing mental pictures, he or she will have a great advantage over an opponent who has not developed this practice .

11. Use a Coach. We can learn from the calm and confident demeanor of politicians during high-pressure, televised, political debates. Like trial lawyers, these professional communicators have to think quickly and achieve maximum performance under highly stressful conditions. Invariably, debate preparations will have involved intensive coaching by a variety of consu ltants using rehearsal, role-playing , visualizing, and relaxation techniques. When the stakes are high, it is worth utilizing mentors, trial scientists, psychologists, speech coaches, or at least the lawyer down the hall who can critique your presentation and offer suggestions for improvement. Some of the most effective opening statements and summations of my career have occurred when I took the time to rehearse key points in front of mentors and colleagues who could give me honest feedback and constructive criticism.

Conclusion

Use of these fear management tactics will turn what was once thought to be a liability into a trial lawyer's greatest asset. Since nearly every


lawyer entering the courtroom for the trial of a major case is experiencing some fear, an advantage is gained by the lawyer who is most adept at managing his or her fear. Since our duty to our clients require that we be the best we can be, management of fear should occupy the same priority as preparation of exhibits or outlining the examinations of witnesses. Once we elevate our fear management program to the level of these other preparations, the trial of cases becomes an exciting pastime and is no longer a debilitating or emotionally unhealthy experience.

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