Save Your Bait and Invest WiselyTrial 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
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In the courtroom, timing is everything. Any “miss” is a costly one. Timing requires cadence. Execution of timing is one trial skill firmly rooted in pure experience.read more
In some cases, it may be productive to let your opponent speculate over your intentions. Never be dishonest, of course, but do be conscientious in your communication with the other side.read more
Unlike the wily octopus, trial lawyers often have the instinct to be seen. We often fail to analyze the power of subterfuge or selective presence.read more
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When developing impeachment, wall off all exit points and secure them well in advance, or you might be the one getting “schooled.”read more