I had a DWI jury trial for most of last week. I don’t blog about trials or cases in detail, and I’m not going to start here. But I would like to talk about the experience of trial stress and what it’s like to represent a defendant in front of a jury of her peers.
I usually start feeling trial anxiety the weekend before. That is when my thought process becomes dominated by visions of voir dire and opening statements.
If my mind isn’t occupied with other matters then mentally I’m in trial. I often visualize the scene, projecting myself into the trial. I can see the jury, the prosecutor, and the courtroom.
There can be some spill over into real life. For example, I’ll be driving and start gesturing with my hands to emphasis a point in front of the jury that’s in my mind. My wife is getting used to this but still asks me what I am doing some time. I’m going through the motions, literally.
Sleep patterns are grealty affected by trial stress. I expect to wake up at least an hour earlier than usual during a jury trial. My usual sleep pattern is waking up between 4-6, going back to bed until 7 then starting my day. On trial days the first time I wake up is the last time. Whether it’s 4 or 6 am I can’t go back to sleep. Adrenaline and anxiety combine to form a substance with more kick than coffee.
I’m ready to get to the office and tackle that day’s trial challenge. Not that I haven’t already prepped the case. I work a case up well before trial. Usually by the pre trial hearing I’ve spotted the legal and factual issues and decided what my angle is. But that’s never enough to get me through trial without more prep work. Why?
Criminal jury trials are never completely predictable and unexpected issues are to be expected. Stories change on the stand, the state has their own objections, the judge may ask you to research an issue before he rules etc. It’s a rare jury trial that does not include a few moments of research panic.
S L O W D O W N
The trial adrenaline/stress have led to my strict no coffee/soda on trial day policy. Stimulants are not needed when you feel like a hummingbird on meth. Relax, take deep breaths, and exercise whenever possible.
I’m not embarrassed to admit that sometimes I exhibit the tell tale signs of jury trial adrenaline- shaking hands, nervous pen clicking, rocking back and forth in my chair etc. By far my worst bad trial habit is talking too fast.
These get better with each trial, but have not completely disappeared. The first day of trial is usually the worst, by day 3 of trial most of the adrenaline is gone.
Why so serious?
What is the source of trial anxiety? The defense lawyer/freedom fighter/Constitution protecting patriot in me interprets trial stress as a sign that I fully appreciate the awesome responsibility of defending the liberty of the accused. If you are nonchalant about your client who is facing incarceration, you shouldn’t try criminal cases.
Further, our pro conviction appellate courts have created a situation where you must make a perfect objection every time in trial. If not, if you cite the wrong subsection of a statute or can’t instantly think of the right case to argue, you have just waived your client’s rights forever. Fun.
Every time a bell rings….
A great deal of pre trial anxiety is the theater/public speaking aspect. I was a thespian in high school and vividly remember the adrenaline inherent with live performance. My awesome skills as a player were rewarded with the lead in It’s A Wonderful Life. I easily speak more lines in a criminal trial than George Bailey ever said on stage. Back then if I was off or forgot Zuzu’s name no one went to jail. Trial is a high wire act, a solo performance in front of the public with your client’s freedom on the line.
I enjoy trials after they are over. I learn something new every time- about myself, the prosecutor, jurors, the judge. Trial is often the best CLE, with unique lessons and costs. Emotionally draining, mentally exhausting work these jury trials are. And that’s how it should be-
You can only protect your liberties in this world by protecting the other man’s freedom. You can only be free if I am free.
—Clarence Darrow, Closing argument in “Communist Trial