There are certain attitudes that are death to a case. I’m not talking about attorney errors made during trial – we all make mistakes, and a mistake by itself will rarely alter the trial dynamic so drastically that your chance of winning disappears. But bad attitudes can destroy a case.
Here are some examples of attitudes that kill a case:
“The judge will never grant that motion.”
“They don’t do it that way in this court.”
“That company won’t comply with a subpoena for those records.”
“That witness will never come in.” OR “If we call that witness, our adversary will crucify him on cross.”
“I can’t ask that question, it’s objectionable.” OR “I can’t ask that question, the witness will say x.”
The unspoken corollary of these attitudes is: “And therefore, I won’t [make that motion, try that tactic, send that subpoena, call that witness, ask that question].”
Death results from these attitudes because you are stopping yourself from trying. You are giving your adversary a gift, the gift of being defeated before you start. (Who needs an adversary when you are your own best opponent?)
In the real world – not the world you imagine exists in the courtroom – nobody is so clever or all seeing that you can’t match them, or defeat them. That question you thought was objectionable does not get objected to (maybe because, instead of defeating yourself, you figured out a better way to ask it – or maybe because your adversary was asleep at the switch). The witness comes in, and the cross examination is awful so your witness isn’t touched. The judge looks at your novel motion which you worked very hard on, and is impressed that someone finally asked for something interesting or real.
Self-censorship comes from defeatist thinking. In the end, a trial is a spontaneous and unpredictable, almost living organisim. You have to be in it to win it – and that means going in with everything you’ve got, not just what you think may be acceptable to someone else.