Use it or lose it

As time passes, our facility with a technique fades

It has been quite a while since I last posted to this Substack page. The reason is that I have already posted some 60+ times, each with a technique and examples, podcasts, or attachments. Enough can be enough, right?

I still train junior advocates, and recently ran a follow-up training regime for one new Club member, post-boot camp. The experience was revealing.

There appears to be a world of difference between gathering and processing the information in a case study during a timed, controlled session and tackling a real case in real time, with real consequences.

This difference leads me to make several suggestions.

First, take the lessons seriously, but not verbatim. They provide a holistic solution for a problem, namely, how to approach a case to get the best result. This may be a reliable opinion as to the merits of the case, preparation for a motion, examination out of court or settlement meeting (mediation or judicial), or the best preparation for a motion, hearing or final argument.

Second, consider the techniques that apply to the stage you are at in the case. If you are still interviewing your client or witnesses, then the interview and case analysis techniques govern. You don’t know what scenes matter yet, so don’t get bogged down in that. Keep notes and an open mind.

Third, apply your case analysis techniques early and often. Refine your theory and theme as more information arrives. Create files (even virtual ones) for each witness with your thoughts about strengths and weaknesses, and maybe some Five-and-Outs, if they occur to you.

Fourth, connect witnesses to both records (potential exhibits) and scenes, and to each other.

· Can this witness identify or comment on this record?

· Does the evidence (from a witness or record) touch on this scene?

· How reliable is that evidence?

· What is the provenance of the record?

· How can you prove it, or substantiate/corroborate?

· How can you introduce it (the record), or either credit or discredit it?

Fifth, for examinations, create and practice your Five-and-Outs, both direct and cross. Practice makes better (maybe not perfect) and leads to greater chances for better outcomes.

This post may seem to be self-evident, but there is an excellent chance that the lessons from your boot camp or review of Substack posts are long forgotten. You may want to revisit what you learned.