Save Your Bait and Invest Wisely

Trial by Nature #4 - Tips to Survival in the Courtroom

Green herons have been observed collecting and saving “bait” such as small scraps of bread. Rather than eating the bread themselves, the heron sprinkles the bread into the water to attract fish. They wait patiently while the fish assemble to nibble the bread. Once there is an abundance of fish, the heron chooses the fattest one for dinner.

These clever birds hedge their bets: a big fresh fish is a larger, more satisfying meal than a scrap of bread.


I’ve seen many attorneys who simply cannot resist the scrap. They cannot wait for the big fish. However, the reward is often worth the wait. Concede the facts that do not matter and focus on the critical facts in your theory of the case.

I once cross-examined an expert witness with a piece of established scientific literature contradicting her opinions. Rather than just conceding there are different opinions and re-focusing on her opinions, she wasted precious time trying to attack the methodology of the opposing study. Really, all she had to do was to agree there are differences of opinion in science and re-focus on her testimony on the unique facts of the case. Instead, her combative responses were defensive and unrealistic. Her opinions were buried. Nobody cared what she said.

Think twice before cross-examining a witness over inconsequential issues. Beating up an adverse (but objective) bystander witness over a DUI conviction 9 years ago can make you look pithy and desperate.

As a general rule, you should pick a handful of facts and objectives you need to accomplish with each witness. Stick to the plan and avoid the nitty gritty. Remember the green heron and save the breadcrumbs. It’s usually better to catch the bigger fish.



Other Articles in the Series

Trial by Nature Tip #10 – Guard Your Egg

We are responsible for ensuring the survival of our young lawyers. I cannot name one successful trial lawyer who did not receive coaching and mentoring from a more seasoned veteran. If you are one of the successful attorneys, by all means, “pay it forward.”

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