If you could somehow read the mind of opposing counsel and anticipate their every argument, would you? On some level, you may be privy to the opposition’s case through their brief and/or disclosure of evidence, but being able to predict what they will say is impossible, or is it? In sport, an athlete’s ability to predict their opponent’s next move is what differentiates a novice from an expert, and the same is true in the courtroom. Think about the expert performers you know, such as a trial attorney who seems like they are reading their opposing counsel’s mind or a defensive end who intercepts the ball as if it was being thrown to them. What do these examples have in common? Anticipation refers to one’s ability to utilize a prior event to help predict subsequent ones (Merriam-Webster Online, n.d.). In a study done with soccer goalkeepers, researchers found that when presented with a film of penalty kicks, expert participants were more accurate at preventing the goal from going in (Savelsbergh, Williams, Van Der Kamp, & Ward, 2002).
Although a courtroom is dynamic and constantly changing, similar to the soccer goalkeepers, there are some tools you can use to help you anticipate your opponent’s next moves. First, a minor caveat, even if you practice you can’t control the opposing counsel. In football, the practices before each game are spent playing against a practice team whose job is to mimic your upcoming opponent. The practice team is supposed to help the team learn about the tendencies of the opponent so they can be prepared for the likely plays. Despite this practice, teams still lose. Just like in a courtroom, the other team may come up with something you never prepared for or didn’t think was likely to come up. As I alluded to earlier it is impossible to predict with 100% accuracy what another person will say or do. You are only in control of yourself and your own actions. So remember, all you can do is practice and be as prepared as you possibly can. These tips can help you anticipate your opponent but it isn’t foolproof. Learn from the missteps that happen. You may face that opponent again and the next time you do, you will be armed with more knowledge about how they work and will be better able to anticipate them.
First, practice! Try to make your practice as ecologically relevant as possible. If you can, go back to your early days of law school and create your own mock trial. Practice in a courtroom where you plan to give your opening arguments and defend your case against colleagues or peers.
Also, consider recalling previous case law without the aid of a book, you likely won’t have the one you need in court anyways so why practice with one? The reason for reverting to law school practice is simple, the more you practice this way the more your brain builds up long term working memory stores. This type of purposeful practice makes it easier for you to recall information in the future. For example, in a famous study by Simon and Chase (1973), chess players were able to recall where all of the chess pieces were oriented on the board after only being presented with the image for 5 seconds. The many years of practice lead to enhanced pattern recognition that allowed the players to recreate the image using procedural memory of the likely spaces that the chess pieces would be. Incredibly, expert chess players were able to do this even when the chess pieces were in illogical order. Mock trial practice essentially does the same thing by creating a procedural memory of likely outcomes that can aid you in anticipating your opponent.
Another tip for honing your anticipation skills, is to review recorded trial footage of cases. Pause the tape at key points and try to predict what argument the attorney in the video will make. Pay attention to the cues you receive from the video to help you surmise a likely outcome. While the cases may not be directly applicable to the case you are working on, research has shown (Smeeton, Williams, Hodges, & Ward, 2005) that the act of discovery learning can help you to acquire better anticipatory skills.
Furthermore, by using this tactic you can improve upon your creativity skills and learn to focus on relevant audio cues which transfers to the courtroom. Lastly, plan! This tip goes back to the importance of having a good pre-performance routine. The more prepared you are, the more confident you will be when you enter the courtroom. I’m sure it will come as no surprise to you, that you should first orient yourself with the previous case law and decisions when planning your arguments.
Also, examine the cases that could be used against your arguments and come up with ways to dispute them. By doing this, you will be ahead of the game if the opposing counsel tries to provide counters to your argument. Once you’ve done this try rehearsing your opposing counsel’s arguments.
What would you do if you were them?
What case laws would you cite?
Getting in the mindset of your opponent using this practice can help you anticipate their likely steps. ? References Anticipation [Def. 1]. (n.d.) In Merriam-Webster Online, Retrieved March 16, 2017, from https://www.merriam-webster.com/dictionary/anticipation Savelsbergh, G. J. P., Williams, A. M., Kamp, J. V. D., & Ward, P. (2002). Visual search, anticipation and expertise in soccer goalkeepers. Journal of Sports Sciences, 20, 279-287. doi:10.1080/026404102317284826 Simon, H.A., & Chase, W.G. (1973). Skill in chess. American Scientist, 61, 394-403. Smeeton, N. J., Williams, A. M., Hodges, N. J., & Ward, P. (2005). The relative effectiveness of various instructional approaches in developing anticipation skill. Journal of Experimental Psychology: Applied, 11, 98-110. doi:10.1037/1076-898X.11.2.98
Attorney Don Pumphrey, Jr. is a former prosecutor, former law enforcement officer, and a successful and experienced criminal defense attorney. Don has achieved over 100 not guilty verdicts at trial and over 2,000 dismissals.
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