Calming Courtroom Jitters, for Attorneys

Steven Peskind discusses cognitive behavioral therapy methods that can reframe your mindset to conquer courtroom nerves.

Steven’s courtroom advocacy skills are unmatched; so much so that he is trusted by the National Institute of Trial Advocacy to teach its students, who are also lawyers, how to effectively try divorce cases. Thank you Steven for joining us from Chicago improving our firm’s oral advocacy. Our friendship means a great deal.

Chicago Attorney Steven Peskind is recognized as one of the top attorneys in the nation. Throughout his career, he has been trusted by politicians, judges, professionals, business owners, and business executives (as well as their spouses) to discreetly and professionally represent them in family law matters.

Okay. So, thank you for the opportunity to speak about a topic that’s near and dear to my heart, which is effective oral advocacy in court. How do you succeed as a courtroom lawyer? That’s the purpose of why Miles asked me to come today. Before I start talking about some action steps that you guys can all consider in terms of helping you be effective in court, I want to just poll everybody. Who is nervous before they go to court. Raise your hand. Well, we have some liars in the room. Come on, everybody should be nervous. I’m nervous when I go to court. That’s a very normal sort of thing. There was a famous actor of the 20th century, Sir Lawrence Olivier, who said, “The day that I quit having stage fright is the day that I get off the stage.”

And I’ve been trying cases for about 40 years. 39 years. I’ve tried cases in our Supreme Court. I’ve tried cases in all of our appellate courts, many trial courts around the state, traffic court. I’ve been all over the place and I still get butterflies before I go to court, and that’s not a bad thing necessarily. In some ways, it is going to propel you to perform. It reflects some of your adrenaline. But let me, before we even start getting into the subject matter, give you some cognitive behavioral therapy. Do you guys know what that is? CBT?

Yeah. It’s a form of therapy that basically allows you to think your way through certain issues. And I’ve written about this before. One of the ways that you can deal with courtroom jitters is to reframe what your role is in the court. So when you go to court on a motion, typically, you’re going in worried about winning and losing, right? You want to please your client. You want to please your boss. You want to be successful. We all want to be successful when we go to court. But that’s really, I think, a pretty unhealthy way of looking at your assignment as a lawyer. There’s way too much that is out of your control to be able to guarantee a result.

What can you control when you go to court? You can control your level of preparation, your attitude, how you control yourself before the court, how you react or don’t react to the other attorney. All that is within your control, but the rest of the stuff that happens is not within your control. How the other attorney acts, what the judge does, the facts of your case, your boneheaded client, all of that kind of stuff is outside of your control.

So you can’t go in there with a thought that you can somehow manipulate it to your advantage to win the case. Sometimes you can, but the reality is not usually. I’m going to give you two strategies that you can think about with regard to motion practice, or a trial, I guess, for that matter. Number one, think of your role as being an educator for the judge.

And you can control that. You can 100% control that. I am going to take the information that is at issue with the court, I’m going to take the law, and I’m going to give it to the court so the judge can do his or her job. You’re off the hook at that point because all you need to do is be the teacher for the court. And if the judge rules against you, so be it. That’s on the judge, that’s not on you. And along those same lines, the second strategy to think about is a visual of being a relay runner. Anybody in track in high school or college? No. Okay, got a couple. In a relay, we have the four runners, and they’re passing the baton to get to the finish line. First person in the finish line, of course, wins.

Well, you could also think of yourself as a relay runner, as part of the race when you’re presenting in court. The client starts with a baton, they give it to you, you run with it to a given point, and then you pass it on to the court. Once you pass it on, once you’ve effectively passed it on, you have succeeded in your mission. That’s all you need to do. You need to have a clean handoff to the judge, and the judge then takes responsibility for it from there. Fear of failure is a particularly American sort of problem, I don’t know that Europeans feel the same thing. I just read an article about this. We are compulsive about success as Americans, and that’s part of the thing that made us a success as a culture, as a country. But it’s not necessarily a healthy way to live your life, because you take everything on yourself personally, and that’s the greatest way to crack up in this profession.

I’ve been doing it again for almost 40 years, and I’ve seen a lot of lawyers that have lost their souls, lost their minds because they personalized everything that happens. And if they’re not successful, they think it’s a reflection on them. It’s not. We all think, “Well, I could have done this differently. I could have worked harder. I could have worked last weekend,” whatever the case may be. But oftentimes that’s not the case, it’s just circumstances.

Sometimes you need to just let fate do its thing, accept it, and move on to the next one. So, I think that’s a psychologically healthy way of looking at what we do. But nerves are all part of it. And there’s no automatic way of dealing with nerves other than to reframe it, as I just suggested, to make sure that what is within your control you deal with, which is the level of preparation.

You always want to be hyper prepared for everything. And sometimes that’s just not practicable because of time constraints. And we have lives, and we have kids, and we have all this stuff going on, but you need to do what you can do to be the most prepared lawyer in the courtroom. A lot of times lawyers are frustrated with other lawyers that don’t tell the truth. You guys ever deal with any lawyers that are fast and loose with the facts? Yes. Yeah. We all do that. We all have to deal with that. And the best way of dealing with that is being the master of every single fact, as granular as you can go, so that you can rebut anything that lawyers say. Now, you can’t anticipate everything that’s going to come out of their mouths, but being prepared is just so critically important.

And by the way, that’s not something novel. You don’t need to spend your Friday afternoon listening to Steve Peskin say, “Be prepared.” That’s common sense, but I’m a firm believer that reviewing the fundamentals on a regular basis makes you better. Repetition is the mother of skill really. So going over the fundamentals from time to time in our early, early practices, we lose track of that. So being able to stop, pause, think about it a little bit is always helpful. I’ve been teaching at the trial institute, Joe was one of my students a few years ago, for 17 or 18 years.

And why do I do that? I mean, I go and I devote 10 days a year going over the fundamentals of how to do an effective direct examination, how to do an effective cross-examination, how to do an opening statement, closing argument, fundamentals of evidence, fundamentals of laying a foundation for an exhibit, all that kind of stuff. I don’t need to be doing that. I’ve tried a thousand cases at this point, but going over these fundamentals makes me, I think, more formidable, makes me a better lawyer, and helps me get the job done for my client.

So I advocate periodically going through the fundamentals. I think that’s going to be really helpful for you guys. So here are other ways to help deal with jitters, okay? Don’t work up until the last minute, rushing into the courthouse, spilling your file on the floor of the courtroom, hurley burley. You want to get all of your preparation done in enough time so that you can decompress, so that you can relax. Your brain is so crammed with facts, figures, loss, strategies, worry, all that kind of stuff that we all deal with up until the eve of trial. So, if you can, let’s say you got a trial starting on Monday, bust your ass, get it done by Thursday or Friday, so that over the weekend you can do what you like to do to decompress.

Whether you’re a runner or you like to listen to music or whatever the case is, you’ll be much more effective and frankly, less nervous when you hit the ground on Monday than if you were to go and work all weekend. And that’s just going to shrink your bandwidth and it’s going to give you jitters. It’s just not a good way to do it. You want to be thinking about ways that you can also take as many headaches out of your circumstances as you can. And what that basically means is make sure your materials are well organized. One of the things that I love is I use an iPad. Stephanie and I just tried a case a few weeks ago, where all of my exhibits were laid out by click. I could get to them quickly. There’s an app, a suite called Trial Pad and document review pad that allows you to organize everything digitally on an iPad or a laptop for that matter.

So, all those sorts of things make me much more confident. I’m much more relaxed knowing I can get my hands on everything that I possibly need quickly, and I rely heavily on Stephanie to help me with that because as I’ve aged, I think some of my bandwidth has shrunk a little bit. So that would help you relax as well. So planning ahead is, I think, critically important. What can I do to make sure that I don’t have these competing things weighing on me?

Again, sort of obvious stuff.

Steven Peskind is the author of:

• The Successful Lawyer Blog
• The Family Law Trial Evidence Handbook: Rules and Procedures for Effective Advocacy published by the ABA Family Law Section
• See the rest of Steven’s books at his author page on Amazon

Check out Peskind’s other videos in this Oral Advocacy series:

1. Calming Courtroom Jitters, for Attorneys
2. Peskind’s Structure of an Oral Argument for Lawyers
3. Oral Advocacy: Authenticity, Language and Professionalism
4. Keeping the Judge Engaged During Oral Arguments
5. How Do You Practice Oral Advocacy?

For further discussion, view Evidence & Oral Advocacy with Steven Peskind.