The preparations that super-lawyer Vincent Bugliosi go through to prepare for a trial are impressive, and his method could be used to prepare for any number of things:
With the trial scheduled to start in the morning, my yellow-pad sheets of paper, covering every aspect of the trial (even case law authority to overcome anticipated objections, and optional lines of follow-up questions dependent on how a witness on cross-examination answered a particular question), rose to a height of almost a foot. Although the clear trend in the legal profession is toward fewer and fewer notes on direct examination, cross-examination, and final summation (so recommend instructors at many law schools and trial lawyer seminars), I do the opposite, almost to an obsessive, perhaps even unnecessary extreme. But I believe in the adage that the war is won before the first battle is fought, and thus far in my career I’ve been able to orchestrate most of the trial on paper before ever entering the courtroom. Arguments, counterarguments, questions, objections—the whole gamut takes place on my yellow pad before the trial even starts. My objective, of course, is for the trial to be merely the acting out of the scenario or script I’ve already written. Granted, unusual things happen at a trial, but if I’ve done my homework, even many of these occurrences can be anticipated and prepared for. In my unremitting quest to be completely ready for trial, I find that in effect I try the case against myself.
Reducing what’s in one’s mind to writing is very tedious and time-consuming, of course. In fact, working on my yellow pad is the hardest part of trying a case for me. But in my opinion, it is the only way to try a complex lawsuit, and the only way to make a superior presentation of my case, as opposed to a good or merely adequate one.
For instance, in preparing my cross-examination, I might know, in my mind, what point I want to make, but it might take me a half an hour of sweat on my yellow pad to work out the very best way of establishing this one point on cross. Before I ask my key question, I might decide I have to ask ten preliminary questions, and in a particular sequence. Some of these preliminary questions I may rewrite three or four times because when I examine them closely I may see that the witness might be able to discern the direction in which I am taking him.
Likewise, in preparing my final summation, I might know what point I want to make, but when I try to articulate it on my yellow pad, oftentimes my pencil comes to a stop. It’s at this moment that I realize I didn’t quite understand my point as well as I thought I did, or even if I did, I certainly realize I was unable to extemporaneously articulate the point with the clarity and power I want.
The standard explanation of lawyers who religiously avoid the pain and agony of the yellow pad is that if a lawyer does all that preparation and has everything written down, he can’t be flexible, and can’t think on his feet when something not covered by his notes occurs. If that’s not a classic non sequitur, I don’t know what is. Is instant improvisation and flexibility the domain only of those who are unprepared?