Courtroom skills improve a litigator’s results across the board, but how can young lawyers with no trial experience develop these skills? In the first of a series on associate training, Kirkland & Ellis partners explain how they teach skills on evidence—handling evidentiary issues in depositions, motion in limine strategy, and objections at trial.
The ability to take a case to trial is the indispensable skill for any litigator. A lawyer with that skill is more effective and efficient in discovery, more incisive of the relative strength of cases, and more acute in determining the winning strategy.
Such lawyers radiate confidence. Judges learn that their word can be trusted, adversaries become more reasonable and disinclined to posture, and clients learn that conservative advice does not betray a lack of self-confidence. Courtroom skills improve a litigator’s results across the board.
But how can young lawyers develop these skills before they have ever done a trial? Kirkland lawyers start a trial, on average, at least once a week in courts and before arbitration panels, around the country and the world. Therefore, we must train our young lawyers for the courtroom, from year one.
The cornerstone of our approach is hands-on training through the Kirkland Institute for Trial Advocacy, the most expansive litigation training program conducted by a private firm. It is a week-long mock trial program completed by every litigation associate every year. KITA comprises a mix of simulations, theory, and real-world practice. The thousands of hours spent learning-through-doing at KITA trials are supplemented by mock deposition and evidence programs.
This article is the first in a series from Kirkland partners about how we teach trial skills at KITA and suggestions for young attorneys seeking to develop those skills. This installment focuses on evidence.
Evidence permeates every decision made throughout a case. The rules of evidence and their related caselaw inform the universe of discoverable material and set the bounds of what can be shown at trial. Firm grounding in how to use the rules in depositions and at trial is crucial.
Programs Emphasize Three Skills for Evidence
The Kirkland Deposition Program and the KITA Trial Program teach evidence by emphasizing three skills: handling evidentiary issues in depositions, motion in limine strategy, and objections at trial. Both programs give associates on-their-feet experience litigating a premade case file with professional actors playing the witnesses. Kirkland partners instruct on rules and practical tips, and each team of associates has one or more partners to provide mentoring and critiques throughout.
In the Deposition Program, associates depose witnesses. In addition to gaining discovery information and obtaining admissions, associates must follow the rules of evidence and formulate deposition strategy focused on trial admissibility. When evidentiary issues are missed, partners identify them in post-deposition critiques.
The key insight associates tell us they get from such learning-through-doing is that laying foundation, establishing authenticity and identifying or resolving hearsay in depositions often determines successful execution at trial.
The annual KITA Trial Program then gives courtroom context to evidentiary issues. Associates put on full trials with witnesses and jurors. The evidence in the file is imperfect by design, bringing home the two cornerstones of trial evidence practice—strategic anticipation and tactical reaction. Associates practice strategic anticipation through motions in limine, which they must choose to file and argue before partners.
Associates say this training significantly refines their client work by teaching them to separate the signal from the noise in evidentiary issues, thus identifying evidentiary battles worth fighting and resolving before trial.
Learning Through Doing Is Critical
Associates practice tactical reaction—thinking on their feet—through the live-time making of objections at KITA trials. We stress with them four practical elements:
- Object like you mean it (standing upright and speaking forcefully).
- Be brief. State a short basis, no speeches.
- Object quickly—get the objection out before testimony is given. Be ready to do this by having a list of key issues unresolved by motion that might arise and identifying those issues by exhibit and witness.
- Object on important or harmful issues and to preserve appeal. Don’t object on everything.
Associates say this training builds “muscle memory” to quickly object and to plan objection strategy.
Kirkland’s training programs have taught us that learning though doing, rather than reading or being told about trial, is critical to young attorneys developing competence before appearing in court.
Young lawyers who confront evidentiary and other issues through participatory training wind up doing better work for clients. They focus on the probative and admissible rather than getting lost in interminable discovery fights.
The evident skills developed in such training give partners and clients the confidence to put associates forward earlier. If your firm or organization does not offer hands-on training in taking depositions and conducting trials, seek it out yourself. The National Institute for Trial Advocacy as well as many law schools and professional organizations offer excellent participatory training programs. The best way to learn is to do.
This column does not necessarily reflect the opinion of The Bureau of National Affairs, Inc. or its owners.
Jim Basile is a senior partner in Kirkland & Ellis’s San Francisco office. He runs the KITA Trial Program and is in charge of firmwide litigation training.
Robert Gretch is the knowledge management partner for litigation in Kirkland & Ellis’s New York office.