Sink or Swim: Improvisation and Cross-Examination

By Rice Divorce Team | March 14, 2016

Typically when a layperson attempts to estimate the amount of time and effort that a lawyer has to sacrifice in order to properly prepare themselves to represent a client said estimate tends to be drastically lower than it should be. I have often heard my boss, Larry Rice, remind all the members of his team that on average for each day a trial is expected to last, a month of preparation time should be allotted by the attorney. Yet even despite this incredible amount of preparation there are some aspects of a trial that no matter how much preparation a lawyer devotes, they can never be entirely prepared for every eventuality that could come to pass. Sometimes a lawyer simply has to trust their instincts and improvise. I learned this in a rather extreme exercise that happened to quite literally fall on (and nearly crush) me last December.

I had just returned from lunch and was just settling in to read any emails that might have come in during my absence when one of the associates in the firm walked into the small office I share and told me that me that due to the absence of my fellow clerks, (due to their end of term exams) I had been selected to aid one of our clients in trial preparation. I was to assume the position of opposing council and attempt to cross-examine them as harshly as possible. I will take this opportunity to explain that despite me presently applying to law schools, I am not a law student. In addition to this I had absolutely no knowledge of this case. In fact, I did not even know that this case existed until approximately fifteen seconds after the associate had entered my small bubble. These tidbits of information probably allow you to understand why a debilitating wave of shock and fear quickly overtook me once I had confirmed that I had not imagined the entire conversation up until this point. I quickly asked how much time I had to prepare before the client was to arrive and was informed that she would be arriving and this exercise would be commencing imminently. “Imminently” as in as this entire enterprise was being explained to me the client was being shown into the preparation room and was already ready to begin. At this point in my panic attack, Larry came into the room and asked if I was ready for this. To be frank with everyone I’m not entirely certain that my answer was in any understandable language, but his response to my shell-shocked appearance was to simply state, “The one thing that I worry about the individuals that gain experience here is that they don’t learn how to react on the fly and to adapt to unexpected situations. This will help you to train yourself to adjust in the best way possible.” While in retrospect this advice makes perfect sense at the moment that it was conveyed to me it did not sink in at all.

What followed over both this session and a follow up session with the same client can only be described as witnessing a newborn giraffe attempting to walk. There were countless instances of fumbling, falling, and face planting. At the end of it all though, despite my firm belief that I had not asked a single question correctly, I was told that I had done a decent job. This was not my first trial by fire experience that I had ever had in either my academic or everyday life and like those other instances this one has rewarded me with great knowledge at my having lived through it. I will go ahead, however, and give a helpful bit of advice to anyone who happens to find themselves in a situation such as the one described above. Don’t stop moving forward. It does you absolutely no good to freeze and then drown in your own fear. Keep moving and flail about until you can finally tread water. As for worrying about the finesse and speed at which you adapt to unexpected situations, those are things that can be honed with time and many more hours of practice. You can learn the butterfly and breaststroke later, but for now the dog paddle will save your confidence and perhaps a few shreds of your sanity.