Bill Wirskye
“Failure to prepare is preparing to fail.”1 This is one of my favorite quotes from legendary UCLA basketball coach John Wooden because it applies so perfectly to trial work. All the successful trial prosecutors I know embody this maxim. They are fanatical and obsessive about thorough case preparation, and their results reflect it. I’ve been fortunate throughout my career to observe, learn from, and try cases with or against some of these great prosecutors. They’ve taught me a lot. And because the start of a new year is a great time to take stock of yourself and look for areas to improve in, I’ve decided that in 2018 I’m resolving to be better-prepared for trial.
In support of this broad resolution, I’ve identified three specific New Year’s resolutions that I need to focus on to become a better prosecutor next year. Whether these resolutions resonate with you or not, my hope is that they will make you think about the topic and challenge you to be better prepared the next time you announce: “State’s ready.”
Resolution 1: “I won’t let advocacy distract me from preparation.”
Experienced trial prosecutors know that proper preparation will beat superior trial advocacy almost every time. To explain the difference, I’ll say that advocacy is a command of the courtroom. Preparation is a command of the facts. Juries will forgive poor advocacy but not poor preparation. But preparation and advocacy are not unrelated concepts. On the contrary, a properly prepared case is the foundation on which effective trial advocacy is built. Preparation is not only a prerequisite for advocacy; it is the most effective type of advocacy, in my opinion. Yet there can be a tension between the two concepts for prosecutors of all experience levels. Too much of a focus on advocacy can distract us from proper preparation. Let me explain.
An over-emphasis on advocacy is common in rookie prosecutors. They haven’t learned how to prepare yet, and they just don’t realize how important it is. New prosecutors often come into the profession with their heads filled with visions of fiery cross examinations and powerful and soaring courtroom oratory. After all, this is the sexy stuff. This is probably why most of us wanted to be prosecutors—to get in a courtroom and perform. There’s absolutely nothing wrong with that.
But what most young prosecutors don’t realize yet is that a tenacious and grinding preparation wins cases. You must know your case inside and out to present it coherently and to effectively parry the factual counter-narrative put forth by the defense, even if it’s only a reasonable-doubt defense. This involves lots of hard work, but not necessarily cutting-edge advocacy techniques. We must locate and interview witnesses—and then re-interview them if time permits. We must study and fully understand our forensics. We must locate, disclose, and read all the relevant reports and notes. The list goes on and on. This type of tedious and time-consuming prep work is a grind. Few prosecutors like it, especially early in their careers. Drafting and practicing our openings and closings and worrying about repetition, primacy, recency, or other advocacy-type techniques is far more fun—and that’s why it can be such a distraction to prosecutors.
Take this recent example: A young trial prosecutor came in to my office with a question on the eve of his DWI trial.
“Whose perspective do you think I should do my opening from?” he asked me. “I was thinking maybe the nurse who drew the blood. I’ll start out there. She should be a compelling witness.”
“You have interviewed this nurse, right?” I asked tentatively.
“No, but she gave a written statement to the police,” he replied confidently.
I winced inside. I knew this prosecutor had been working hard on this case, yet he hadn’t conducted even a basic witness interview to confirm the nurse’s testimony. Without that basic interview, how would he know what type of witness she would be? Clearly, he didn’t understand how trial prep and advocacy work together. He was attempting to employ an advanced trial advocacy tactic—opening non-chronologically and from the perspective of a witness—without the proper case prep. This is a dangerous approach because it’s hard to open in detail on a witness’s testimony when you don’t know exactly what she is going to say. This young prosecutor had foregone the grind of proper case prep in favor of the lure of a glitzy advocacy technique. It’s a mistake we’ve all made, and it’s not just limited to rookies.
Even once we’ve learned how to prepare a case for trial, we can still get distracted by advocacy. It seems that about the time we begin properly preparing our cases and winning consistently, that is about the same time that we are coming into our own as trial advocates. At this point in our careers, we are refining our courtroom style and persona and honing our go-to trial advocacy techniques. But our success can be our downfall. Because we are getting consistently positive results, we tend to give more credit to our advocacy rather than to our preparation. We start believing our own bullsh*t. We lose sight that really, it’s our solid preparation that’s winning the cases. Our advocacy is working—if it is—only because we have built it on the solid foundation of a factually well-prepared case. In short, we must learn the correct lesson from our success. Did we succeed because we were brilliant trial advocates? Or did we succeed because our case was properly prepared, which allowed us some leeway as trial advocates?2
I myself believe it’s more of the latter than the former. And because of that, I need to focus more on preparation and less on advocacy in 2018. While advocacy is fun, I can’t be distracted by it. I’m hoping this resolution will keep me grounded in the grind. I need to be reminded to put the grind before the glitz, because the grind is more important than the glitz.
Resolution 2: “I will make time to think about my cases more.”
While this resolution may seem simplistic at first blush, it reminds me to be intentional about setting aside time to think about my case during trial prep. The type of thinking I’m talking about is a scheduled, “deep work”3 time where you consider the strengths and weakness of a case, potential defenses, evidence admissibility issues, and any other strategic or tactical issue. Too often I see prosecutors rushing around in the “micro” world of trial prep—assembling the pieces of the trial—without any time spent in the “macro” realm, which is conceptualizing and visualizing how the pieces might fit together. Trying a case can be like putting together a puzzle without the box top. Yes, it’s important to have all the pieces, but you need to spend time visualizing what the finished puzzle will look like. You can never do too much of this type of thinking.
Chess can also be a useful metaphor for trial work. Chess masters can spend hours preparing for a match by merely visualizing a chess game. They calculate different combinations in intricate decision trees that can look many moves ahead.4 This is a focused and disciplined way to prepare to solve problems in a complex and dynamic environment where decisions need to be made quickly. By spending time engaging in this sort of anticipatory analysis, we can predict many potential trial issues. By having already given these issues some thought in advance, should they actually arise in your trial, you will be better prepared to deal with them. This is the very essence of “macro” trial preparation.
At least for me, this type of prep work is not a one-time deep-thinking session. Rather, it is a series of scheduled sessions, spanning the time from when it first appears a case might go to trial, up until the trial begins. My initial sessions focus on broader, more strategic issues, such as the theory or theme, while later sessions focus more on tactical issues, such as witness order or whether to offer into evidence a defendant’s statement to the police. During these final sessions, I find it helpful to actually visualize the trial playing out, imagining how the defense and the judge are going to respond. This process allows me to engage in structured issue spotting, which has spared me much panic and saved me numerous embarrassments in front of a jury.
Even though I know how important this “deep work” is, I’m finding it increasingly difficult to schedule a block of distraction-free time in which to do it. I know we are all experiencing similar struggles. Between the demanding nature of our jobs and the demanding of our attention by our technological devices, our undivided attention and quiet time are rare commodities. But I know that my case preparation will not be complete until I’ve spent this deep-thinking time. That’s why this resolution resonates with me—it reminds me of the absolute necessity of scheduling time to think about my case, put away my phone, and just think.
Resolution #3: “I will take complete ownership of my cases and double-check everything, every time.”
This particular resolution made my list because of a recent embarrassing oversight on my part. During a high-profile capital murder trial, I mistakenly offered into evidence 13 guns that had nothing to do with either the defendant or my case. The guns had been mistakenly pre-marked for admission by several officers to whom I had delegated the task. (It turns out they did exactly what I asked them to do—mark to be admitted into evidence every gun we had collected during the investigation.) I failed to catch our mistake in front of the jury so the guns went into evidence. We caught the mistake later that night. I spent a long and sleepless night, alternating between berating myself for my stupidity and then making excuses for my miscue and blaming others. When I finally tired of those pointless exercises, I worked on how to make my mistake a “teachable moment” for my kids, knowing that they were following the trial in the media and would hear of my stupidity. The next morning in court, I sheepishly asked the judge to re-open, and I proceeded to take back 13 guns out of evidence. I felt the jury watching me. I could almost see the thought bubbles above their heads as they wondered if I knew what I was doing. I couldn’t blame them. It was a stupid mistake. I resolved then and there to always take complete ownership of my cases and double-check everything, every time.
Thorough trial prep in our cases is ultimately our responsibility. We must take ownership of each and every detail. Excuses are unacceptable. Blaming others is unacceptable. In my example above, there were reasons I made the mistake (i.e., poor communication and fatigue), but there were no acceptable justifications. I screwed up. And at the end of the day, my screw-up could have compromised my case. Fortunately it didn’t, but the whole episode made me appreciate at a deeper level the fanatical obsession with preparation that is needed to seek justice and the extreme level of ownership we must take in our trial prep.5
What’s frustrating to me, and why this is a 2018 resolution of mine, is that I knew that my cases were my responsibility. I knew to double-check everything—I learned this early in my career. But in the crush of trial prep and in the rush of pure adrenaline during trial itself, I had delegated without double-checking. And the trial gods made sure I paid the price for my carelessness. They always do.
Parting thought
Our job as trial prosecutors is complex, dynamic, and demanding. And no matter how long you do it, you can never learn everything. The key is to keep trying to be a better version of you. What are your New Year’s resolutions for 2018?
Endnotes
1 Coach Wooden: The 7 principles That Shaped His Life and Will Change Yours, by Pat Williams, Revell 2011.
2 A variation on this theme involves a simple truth we as prosecutors are often reluctant to discuss. (I’m so reluctant to discuss it that I’ve relegated it to an endnote!) That truth is this: For prosecutors, there are some cases we simply can’t lose. Sometimes the facts of a case are so bad, the proof of a defendant’s guilt is so apparent and abundant, or the proper punishment verdict is so clear, that we will win the case despite either (or both) poor preparation or advocacy on our part. Sometimes we win despite ourselves. As prosecutors, that is an advantage we enjoy over the defense. The overarching takeaway here is to be sure we learn the right lessons from our success.
3 The term “deep work” comes from Cal Newport’s book Deep Work: Rules for Focused Success in a Distracted World, Grand Central Publishing, 2016. He defines it as professional activities performed in a state of distraction-free concentration that push our cognitive capabilities to their limit.
4 To further explore the concept of calculation in chess and how it may help us in trying cases, read Garry Kasparov’s How Life Imitates Chess: Making the Right Moves from the Board to the Boardroom, Bloomsbury 2007.
5 For further reading on taking ownership in your professional and personal life, read Jocko Willink’s and Leif Babin’s book Extreme Ownership, St. Martin’s Press, 2015.