There is nothing as scary, and as exhilarating, as trying your first case
Life holds certain moments that amaze and astound. Maybe for you it was the day you passed the bar, or the day you became a mom (or dad), or even the day you ran your first marathon. For me, the day I started my first trial is right up there in that list. I had just graduated from CAALA’s Plaintiff Trial Academy and was itching to try a case. At the Academy, CAALA “masters” gave us raw, in-depth instruction on every aspect of trial – how to organize an Opening Statement, how to use themes, how to cross examine experts effectively, and how to get the jury to relate to you. It was eight weeks of intense education, demonstration and “learning by doing.” But most importantly, it gave me the confidence and courage to say, “Damn it, I’m going to try this case.” So off to trial I went on August 31, 2015. I gave my very first Opening Statement on the 11th anniversary of my Dad’s passing – a sign from the man who wanted more than anything to watch his little girl grow up to be a trial attorney.
Things were so different than I had imagined. I was nervous, but calm. Scared, but ready. And as prepared as I was, things would come up once in a while that left me feeling like “hmm.... should I have done that differently?” Here’s the thing about trial that no one teaches you: When you walk into that courtroom, everything else stops, time stands still. You become a gladiator, ready to take on whatever stands in your way, and the only person you’re doing it for is the person that hired you two years ago to fight a battle he can’t fight himself. Of course you’re nervous about missing an objection, or forgetting to ask for permission to approach the witness, or putting a document on the Elmo without laying proper foundation, but it’s OK. It’s fixable. And once you mess up, you never make that mistake again.
My client Danny was a passenger on an MTA bus. Defendant made a left turn in front of the bus, on a green light, causing a collision. The defense hired their regular slew of experts to claim that this was a “minor impact” and that Danny’s injuries were pre-existing and not caused by the crash. They also claimed that the bus driver was partially at fault. They basically threw everything against the wall, hoping some of it would stick. So here I am, fighting liability and damages. It was daunting for sure. But I felt amazing. I was Spartacus!
During voir dire, I tried hard to be myself and keep it real. I was so afraid that none of the prospective jurors would talk, but within minutes, they were raising their hands, joining the discussion and engaging in the process. After voir dire, I looked at my jury and thought, “These folks are OK. These are the people that are going to help me win.”
Little did I know that I was very, very wrong.
After opening, I sat down, pleased with myself. I had nailed it. Then I destroyed the Defendant on 776, caught her in lies, made her look stupid, and reminded the jury that we were there because this one person just wouldn’t step up to the plate. Danny and his boss told a compelling story about how this crash had affected Danny’s life, how things were different for him now, and how uncertain the future was. My experts were equally effective, explaining complex medical terms to the jury, demonstrating what an epidural injection looks like, using the magic words for “reasonable and necessary.”
At the close of my case in chief, when I uttered those magical words – “Plaintiff rests, Your Honor” – I felt exhilarated, confident. Then came the defense experts, and it was magic!! Crossing the infamous Dr. Wilson was my movie moment. By the time of my closing argument, I was super comfortable up there. Funny how in a few days, from opening to closing, my style totally changed. I knew my stuff and I wasn’t afraid to go all in and ask for every single penny I thought Danny deserved.
After the judge read final jury instructions, and the jury at last left to begin deliberating, I took a long deep breath, looked around the empty courtroom and knew I had crossed that finish line. And for the first time in a week, I felt drained − emotionally and physically. I knew I had done my very best, and I was sure the jury got it. But not less than 72 minutes later, I got a call from the clerk – “Jury’s reached a verdict.” My heart sank. I was no seasoned trial lawyer, but even I knew this didn’t bode well for my client. As the verdict was read, I felt sadder and more defeated with each passing second. I had “won,” but not really. The jury came back with meager damages. They just didn’t buy the concept that Danny would need future surgery. They didn’t give him a cent to pay for that or for future pain and suffering.
I was down. Like really down. I felt betrayed by these folks who seemed so nice, so engaged and in whom I placed my trust. I felt cheated. On top of that, no sooner than the verdict was read, I got a text from my family pediatrician that my two-year-old son was being admitted into the ER. Trial lawyer hat off, mommy mode on. All of a sudden, the trial and its painful result vanished from my mind. On the drive to the hospital, I just kept thinking about my baby, wondering if he would be OK. And all the while, feeling guilty that, at that moment, nothing mattered more than him; not the case, not the trial, not the loss.
That is probably the most profound lesson I learned throughout the trial − yes, we are gladiators, yes, we fight for a living, but we are human. We have families, we make mistakes, we get overly emotional. But that’s what makes us better trial lawyers. Because no one can relate to a robot. It’s OK to be vulnerable, to admit that you don’t know something. It’s OK to look at your loss and say “I still fought.” And it’s OK to still think you did the best you could.
Practically speaking, I learned some more important lessons:
- Always, always maintain a good relationship with opposing counsel. It makes things so much easier and it’s one less thing you need to worry about. You can still be adversaries without being enemies. Judge Buckley told us during PTA that the number one thing he tells young lawyers is “go have a cup of coffee with opposing counsel and talk about everything and anything but the case.”
- Be upfront with the judge and the clerk that this is your first trial. I struggled with this. I didn’t want to look like an idiot, I didn’t want to make it look like I was asking for favors, but I had to let them know that this was my first. When the Judge gave us 20 minutes for voir dire, I brought it up right then and there, and said “this is my first time, I really don’t think I can get through voir dire in 20 minutes.” The judge was understanding and bumped it up to 40 minutes.
- Life goes on during trial. Kids still need help with homework, dinners still need to be prepped, laundry still needs to be done. My family went through this entire trial with me. My mom, my husband and seven-year old girl were my first focus group. When I practiced my Opening Statement in front of them, two really important things happened: my daughter asked if anyone else besides Danny got injured on the bus and my husband laughed when I asked for $650,000 in damages. I knew the “minor impact” thing was going to be a big problem, but didn’t understand how big of a problem it would be until I realized that even a seven-year old picked up on it. As for the $650,000, my husband explained to me why he thought that number was so ridiculous, and he was right. My family got me through this trial; don’t ignore yours. They still need you.
- You know who else needs you? You need you! You need to be healthy, strong and rested. I didn’t miss a single workout during trial. No matter how late it was, I needed to do something to let out all that built-up energy at the end of the day. Whether it was a run or a spin class, that was my time to think about something other than the trial. Take care of yourself so you can give your client the best representation possible.
- Trial is not as daunting as it seems. Going in, I thought it would be like this one long week of trial. But once you get in, you see that it’s like little time blocks. Motions in limine, break; voir dire, break; opening, break.... Trial is so much more manageable if you look at it as little compartments. And since court almost always closes at 4:00 p.m., you still get the rest of the evening to work on what you need to work on for the next day.
- Talk to the jury after the verdict. I wanted to run out of the courtroom after the verdict was read, not only because of my son but also because I was so upset at the jury. I let my ego get in the way of hunting them down and talking to them to figure out what went wrong. Thankfully, I was able to catch up to two stragglers who told me that they thought my client would have needed surgery even without this bus crash. You better believe I used those conversations as a basis for my Motion for New Trial!
- Lean on your CAALA buddies. I was never alone during this trial. The other students in my PTA course and I formed a chat group on WhatsApp and I kept in touch with them every day. Some of them came to watch portions of the trial and there was no feeling more gratifying than knowing that your friends were there, backing you up in the trenches. I feel incredibly lucky and honored to be a part of CAALA, knowing that even little old me has the guidance and support of the Dordicks, Alders, Simons and Homampours – and of course the Mandells – of the world behind her.
- Just do it. Nike totally got it right. You will never learn how to try a case until you try a case. Even then, you won’t learn everything. But you have to get in the ring, suck it up and just go for it!
- Scheduling is key. And I think scheduling is part of the reason I didn’t do as well as I would have liked. Opening was on a Monday. I rested my case Wednesday morning. We had one defense expert Wednesday afternoon. The only witness remaining was the defense ortho expert and Closings. Court was dark Thursday and Friday, and Monday was Labor Day. So the jury went four days without any testimony and had to come back for a single day. I think this annoyed them and their verdict showed that they simply didn’t want to stick around any longer. I was so eager to try this case that I didn’t want to agree to any more continuances. Looking back,
I should have waited that extra two weeks.
- Don’t forget about the client. On my drive back from the courthouse, Danny called me and said, “I know it’s not what you wanted, but thank you.” This man, who had sat in court for a week, getting beat up every day by defense counsel, and defense experts, still wanted to thank me. My spirit was broken, and at that moment, I needed him more than he needed me.
- It’s better to not stick to script. During PTA, when we were practicing Opening Statements, I literally wrote out my Opening, word for word and took it up there with me. I didn’t read it, but I looked at it (often). I didn’t want to miss a single word because every word on there had meaning for me. Once I was done, the instructor said “Hey, Aslin, let me see your Opening for a second.” I proudly handed it to him, at which point he said “OK, now do it again without your notes.”
Sure enough, I knew my Opening. In fact, I did it better than the first time around. Yes, I forgot to say some things but no one knew that except me. The connection was so much stronger, the emotions were more authentic and it definitely wasn’t as sing-songy. So at trial, I left my notes on the podium, walked up to the jury, and went back to the podium only when I needed to. By the time closing came around, I didn’t have any notes since most of it was in my PowerPoint anyway.
- Be willing to change gears mid-trial. My accident reconstruction/biomechanics expert gave me a script of questions to ask him that was in sync with his PowerPoint presentation. The preliminary questions (about 45 minutes’ worth) was laying foundation, and while technically necessary, painfully boring. One of the jurors was literally falling asleep, and I knew I was losing them. So right then and there, I ditched the questions and moved right into his opinions by showing the video of the crash. The jury was back! Knowing what I know now, I would have streamlined my direct even more.
- No matter how well you think things are going, no matter how awesome things seem at the moment, there is always room for improvement. If you can’t admit that to yourself, you won’t become a better trial lawyer.
- For years now, we’ve been hearing about how insurance companies and defense firms keep tabs on which attorneys try cases and which ones settle. I very much doubted this. Turns out, it’s so true! About three weeks after my trial, I was at a deposition at defense counsel’s office on a different case. Defense counsel walked in, looked me up and down, and said, “Hey, didn’t you just try that bus case against Early Maslach a few weeks ago?” Calling that moment “incredible” is an understatement. It didn’t matter what this defense attorney knew about the case, or the verdict− but he knew I’ve tried a case, and would try this one if I had to.
- There’s a different victory when you settle a case versus when you try it. Yes, settlements are great. Yes, not every case should be tried. Yes, it is very, very expensive to try a case. But a verdict at the end of trial is POWERFUL. It is blood, sweat and tears. Even if the result isn’t that great, it’s your client’s dignity restored. I was lucky enough to have a client who understood that this was not his lottery ticket. He only wanted to be treated fairly and have his rights vindicated. The trial was his vindication.
- Spend a lot of time with your client. I mean a lot. I didn’t do that and I regret it.
Sure I prepped him in my office, and we went over the questions I would ask him and what he would be cross-examined on, but I didn’t really get to know him until trial actually started. Looking back, I understand now that a meeting in an office with your client and his wife is not the best way to get the real story out. Our offices are sterile; the client’s probably nervous about trial. As much as I thought I had broken through some of his barriers, I wish I had done more. Next time around, I plan on meeting my client and his family at his home, on their turf, in their reality.
For about two days after trial ended, I was fairly devastated and depressed. I felt cheated. And after licking my wounds, I realized I didn’t have time to sulk. I had another case coming up for trial – a more difficult case, with bigger disputes and an out-of-state client. The fight is never over. But the cause we take up for our clients is never greater. What we do is important, and I am so proud that I can now truly call myself, a trial lawyer.
Aslin Tutuyan is a Senior Associate at The Mandell Law Firm in Woodland Hills where her practice focuses on automobile collisions, premises liability and other personal-injury matters. She joined the firm in 2008 and is a graduate of Southwestern Law School. She is an August 2011 graduate of the 25th Annual ABOTA Trial School and a graduate of CAALA’s Plaintiff Trial Academy (2015). In 2015, she was selected as one of Southern California Super Lawyer Rising Stars.
Copyright © 2020 by the author.
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