The Successful Advocate: From Zeal to Zen

Last summer, I was lucky enough to land myself a judicial externship. In two months’ time, I spent 150 hours at court. I watched numerous trials and hearings, I observed many attorneys at their best (and a few at their worst), and, after the trials, I discussed my observations with the judge in his chambers, where I also heard his feedback.

I gained some amazing insights from these observations and discussions. The first, and perhaps most obvious insight, is that hearings and trials are stressful. Different attorneys handle that stress differently. The second insight was that there are good ways and bad ways to handle that stress. Far too often, I saw attorneys allow the stress, the excitement, and the desire to be a zealous advocate for their client get the better of them. Rather than reacting gracefully to a question, critique, or criticism from the judge, some attorneys went so far as to gesture towards their opposing counsel and blame them for whatever the issue may be. 

“Well, Your Honor, if Mr. _____ had sent these documents to me before 4:30pm yesterday, I would be more prepare to answer that…”

“Your Honor, opposing counsel wrote this document and it is full of errors…” 

These statements mirror the tattling of a young child and they come across the same way in court. Compare the last statement to opposing counsel’s response, which was: “Your Honor, I apologize for any errors in the document, I was not aware of them, but I would be happy to make the appropriate corrections…the scrivener is oft criticized for his work.”  This eloquent response was given from an attorney who was calm, composed, and able to deal with the seemingly petulant behavior of the complaining counsel with grace, humor, and charm. In other words, the responding counselor remained in a state of Zen. He did not allow the belligerent comments of the complaining counselor to ruffle his feathers. Consequently, the complaining attorney looked even more foolish against the respondent’s aplomb and confident demeanor. 

The need to remain Zen in court spills over into other areas of the trial as well. When making an objection, a counselor should do it confidently and not in an argumentative matter that is sure to irritate the judge and chafe opposing counsel. If the judge asks for clarification of the objection, or on another rule of law, one should take a measured breath before answering. I observed too often, attorneys firing from the hip in attempt to answer the question as soon as possible, as though speed were a better tool to their case than wisdom.

“Well, Your Honor, I…um…er…” 

This sheepish response only undermines your confidence and your case, causing you to appear nervous and unprepared. If you do not know the answer off the top of your head, ask for a moment of the court’s time to develop a cogent response: “Well, Your Honor, that is a good question. Might I beg the court’s leave to review my notes for a moment?” Although some professors, attorneys, and even judges might tell you not to look at notes in the middle of a trial, nearly all of them will admit that a careful, reasoned response beats out a brash, nonsensical one every time.

Maintaining a careful Zen demeanor during the trial can be hard to do. From day one of law school, we are told that we need to be zealous advocates for our clients.  Trial advocacy, moot court, and many legal practitioners tell us that we need to be emotive during trials: we need to put on a good act for the jury and show them when we think a witness is lying or when opposing counsel is saying something foolish. While emotiveness is certainly necessary during certain stages of the trial, it is unnecessary and completely unprofessional when speaking with the judge or in relation to opposing counsel. You will win far more points with the judge, and the jury, if you act professionally and calmly. If the judge sees you responding thoughtfully to a question, or simply remaining unfazed by the negative antics of opposing counsel, the judge will think better of you. That positive reinforcement could very well help your case later on down the road. Jurors will notice these differences as well. If you are unprofessional, overly zealous, and overly emotive, the jury will see it and think of you as more of an actor, who they cannot trust; rather than as an advocate who believes the just cause of his/her case. 

Whether you are being questioned by the judge, or responding to opposing counsel, be Zen. Take a calming breath before you respond. In that time, clear your mind of all the angry retorts you want to say and think of which response will best help your client’s case. Be composed in the face of stress and adversity and you will find respect in the courtroom. The Zen advocate rallies sympathy and support for his client and his cause. Good things can and will flow from such deliberate and reasoned composure. Thus is the war won, not through flamboyant displays, but from successive, sometimes even tiny, victories. Remaining Zen under fire will gain you those necessary victories. 

Photo 1: Clearly Ambiguous, Flickr

Photo 2: Tony Wills, Creative Commons