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Once trial starts the attorney is the director and the litigant is merely an actor

I was recently preparing for a trial with a litigant who was filled with good ideas but wanted to be the medium to express all those ideas. We had jointly developed a strategy we hoped might achieve the client’s goals. We had jointly prepared testimony outlines for all the witnesses, including his own testimony and the testimony of the opposing party’s witnesses. However he kept wanting to editorialize about the other witnesses’ information. It was a struggle to get him to focus on answering questions for items in which he had personal knowledge, while trusting me to elicit additional helpful information from other witnesses.

This is not an uncommon struggle with an invested litigant, and it is useful for litigants to be invested in their outcomes as they can often provide good ideas and information. However, I wanted him to have a narrow focus on his testimony without squelching his desire to be helpful. I finally hit upon a method of explaining the trial process to him in a way that would not dampen his enthusiasm while reducing the risk of having him editorialize on issues that were best left to other witnesses (my fear being that if cross-examined on these issues, he might damage his case).

As I explained to him, he had hired me to develop an effective strategy to prevail at trial. With his input, we had developed that strategy and prepared testimony and exhibits to implement that strategy. On the cusp of trial, I indicated he now need to trust me to do so. The metaphor I used was that I was now the “director” and he was now an “actor.” As the director, I determined when and how each actor would deliver their lines (i.e., testimony). As an actor, it was his job to deliver his lines. Further, he was one actor among many, and these other actors had their own lines to deliver. As a mere “actor” he was relieved of the burden of presenting all the information to the court–whereas I, as the “director” was now responsible for using both him and the other “actors” (i.e., witnesses) to insure all the necessary information was provided at trial.

Relieved of this responsibility, my client handled his testimony much better than I would have hoped (only going “off reservation” once during cross examination). Many of the points we wished to establish were done through cross examination of the other side’s witnesses and my client’s testimony took less than 20 minutes. Further the points we wished to establish were much more effectively proven when they came from the testimony of the other’s side’s witnesses–as the other side can’t really argue her own witnesses are not credible.

Many litigants have the desire to control all aspects of litigation–not just the goals to be sought, but the methods of achieving those goals, and even the minutia of executing those methods. During the trial preparation process, a client’s input can be very useful. However at trial it’s best if the client allows the attorney to “direct” the proceedings and the client becomes a mere mouthpiece for some of the proceedings. If enough trust has been established in the attorney-client relationship, most clients are willing to cede this control.

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  • One of your best columns yet.

    I once testified where I was a litigant. I had a lawyer I liked with a good reputation. The lawyer shared precious little regarding trial strategy and trial preparation with me. I had no confidence my lawyer would cover all bases. On the stand, I insisted on getting in everything I thought relevant and helpful. By all accounts, including my friends and the jury, I was the worst witness ever to take the stand in South Carolina. The lawyer and litigant must be a team but once the team arrives at the courthouse, the lawyer must be the team leader.

    Love your comment about extracting negative testimony from the opposing party’s witnesses rather than from your client—excellent trial strategy. Erin I try to avoid our client testifying to anything negative about the opposing party.

  • Gary

    This is superb! You nailed it. Thanks.

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