Why Mindfulness Matters in Trial

A classic mistake made by inexperienced lawyers is to write out the questions to be asked in direct examination. When the questions are written out, the answers don't matter because the lawyer knows what the next question is regardless of what the witness says. Likewise, an inexperienced lawyer (or one who has not unlearned the bad lessons of the DA's office) will write out yes-or-no questions to ask the potential jurors during voir dire. The only reason to write out the questions would be that it didn't matter what the potential jurors were going to say; the only reason to ask yes-or-no questions would be that it didn't matter how the potential jurors felt. On cross-examination, what the witness says generally doesn't matter (cross-exam master Terry MacCarthy says the witness is just there to agree with you), but how he says it matters, and how the jury responds to it matters. Any good lawyer will tell you that the single most important trial skill is listening. The lawyer who is attentive to what is happening at any moment in the trial is going to do a better job in that moment than the lawyer who is thinking ahead or thinking about the past. That attentiveness is mindfulness.

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