As many of you know, my partner, Pat Rice, and I concentrate our practice in the area of personal injury litigation. Many of you also know that my partner is addicted to the game of golf. Recently, I began to think about the similarities that exist between the courtroom and the golf course.
You’re standing on the first tee. Despite the early hour, a small gallery has formed. You begin an athlete’s perfunctory stretching. The bets are laid down, and the foursome is then divided into teams. The tee is inserted in the ground, the ball is placed, and you step back and line up for the big hit. Like a halo, the eyes surround you. The ball looks incredibly small when you bring back the club for the first practice swing. You visualize the ball taking flight, and landing in the middle of the fairway, 250 yards from the tee box. Reality sets in, and you begin the real swing, three thousand thoughts cross your mind, and the ball is struck. You look up, and the ball trails off far right into the trees. The only consolation is knowing that you made contact, and no worms were harmed by a little white ball traveling at 120 mph through the blades of grass. You retrieve your tee, and comment how stiff you are at this early hour, knowing full well that a number of excuses will be used throughout the next four hours.
You’re standing at the counsel table. It is 9:30, the jury has just been brought in, and your client is seated next to you with anxiety all over their face. You begin with the historical verbiage, "May it please the Court", and you step forward to address the jury. The negotiations have long since evaporated, the lines have been drawn, and the competition is set to commence. You step in front of the jury box and visualize your new "best" friends, who will listen intently, keep eye contact, and reward your hard work with a fair and reasonable verdict in six figures. Reality sets in, and you begin to tell the jury a story. Your preparation carries you through despite all of the thoughts running around in your head. You sit down knowing that the day is young, the client nods silent approval, but you’re not out of the woods yet.
The similarities are stunning. Whether it’s the gallery or the jury, the anxiety is there. The feelings you get each time you step up to the first tee remain the same. The emotion you feel when you step up to the jury box to give your opening statement decreases only slightly over time. Anxiety is good, and preparation is the only way to reduce your natural feelings.
You walk up to the first green. The sun has removed most of the dew, and the grounds crew is raking the traps. You line up your putt, knowing the break but not the speed. The putter feels awkward at first, but then the stroke comes back to you. Although thinking "Don’t leave it short", your first putt barely makes it half way to the hole. You walk away with a double bogey, but are confident that the best is yet to come.
Your first witness is on the stand. Although the trial is under way, the pressure returns once you begin to contemplate the importance of now presenting to the jury your first witness. As you approach your witness to present your first exhibit, the bailiff has found something to keep his mind occupied, and the witness is starting to show comfort in her appearance. The questioning at first appeared choppy, but now you have developed a flow with your colloquy with the witness. You near the end of your questioning, but your mind can’t help but let you know you have missed something. You quickly peruse your notes, and ask one final question before you deliver the witness to cross-examination. You sit down and think about the testimony while leaving an ear open to your opponent’s questioning. After a short while, you conclude that although you may not have scored perfectly, you are on your way to a successful trial.
You bend over to retrieve your ball out of the cup and head to the clubhouse for a snack and a beer before beginning the back nine. You calculate in your head the score on the first nine, and then you think about all the missed opportunities. If you had only two-putted the fifth hole, and stayed out of the sand trap on the eighth fairway. The errant drive on number three and the bad lie on number six. If not for those mistakes and misfortunes, you would be four over par. You erase those thoughts temporarily and take a big gulp of Bud Light.
Your second witness finishes at 11:50, and the judge instructs the jury to return at 1:30. You set out to pack your trial briefcase and give some comforting words to your client. During your walk out to your car, the thoughts start piling up. How had your witness not understood your question. Why did he admit on cross-examination to something that was clearly wrong. You immediately highlight the mishaps and damaging testimony, and wonder out loud back at the office how wonderful the trial would be going if not for those screwups. You set these thoughts aside and prepare for the afternoon testimony.
You tee up the ball on the tenth tee feeling refreshed, loose and ready to conquer. Gone are the jitters and the thoughts of the front nine. The focus of your concentration is now on reaching the green in regulation, and sinking the putt for par. You take a nice easy swing and the ball bounces and rolls down the middle of the fairway. Walking down the fairway, you can’t help but think about what it would be like to par the next nine holes.
You return to court promptly at 1:25 to prepare for your next witness. The occurrence testimony had its flaws, but the medical testimony went smoothly. You know that you have made it past a directed verdict. Your client takes the stand, looking fresh and confident. The hours spent preparing for this moment should pay off. You proceed to assist your client through two hours of testimony on the incident, the treatment, and the way her life has changed. Things go smoothly, and you sit down with a great deal of confidence and relief. You sit back and hope that you have adequately prepared the plaintiff for the painful experience of being cross-examined in DuPage County. Although your client held up pretty well, you finish with some re-direct to clear up some questions raised by your opponent. You finish and experience the premature feelings of a victory.
You and your partner are up by twelve points, and desperation appears on the faces of your opponents. They win the eleventh hole, and immediately talk about "pressing" (increasing the points on a hole). By the seventeenth, they have made a remarkable comeback, and the teams are now neck and neck. It all comes down to the final hole.
The defendant begins to introduce their evidence. You can’t help but feel confident that your case is unbeatable. The witnesses are led through the incident, and the medical treatment, and the opinions concerning the plaintiff’s condition. A cloud of doubt appears, and you are now wondering what the jury is thinking. You mentally concede that the defendant’s attorney has scored with the jury, and the verdict is now up in the air. You realize that your case must be won by your closing argument.
It is Déjà Vu. You tee up for your final drive and the anxiety that struck you on the first tee has reared its ugly head. The thought of the nice easy swings during the past three hours has been replaced by the knowledge that this drive may determine whether you walk away with the win. You think about all the trips to the driving range over the past few weeks, and you hope to bring what you have learned and developed into this swing. The tee box is yours, and you hit first. This drive will set the stage for opponent’s strategy. With a great drive, all the pressure is on your opponent. If the ball is not hit well, you unintentionally boost the confidence level of your opponent.
You stand up and face the jury for the final time. Everything you need and want to say is in your heart and in your head. No notes are necessary. You have been thinking about this argument for weeks, the evidence is now in, and you thrive on the opportunity to wrap up the case, present it to the jury in a nice package, and sit back and wait for them to return with your reward. You methodically go through the law that they will hear from the judge, and you explain how the facts work hand in hand with that law to bring them to only one conclusion: that your client should receive a verdict in their favor. You complete your closing argument knowing that the jury can’t help but appreciate your sincerity and truthfulness, because you gave them exactly what you told them you would present to them in your opening statement. The pressure is now on your opponent.
The flag is pulled, and the putters are in hand. You and your partner lie three, and your opponents need to sink a long putt to have a chance. You step up and calmly sink your ten foot putt. The hole and the match is yours. You shake hands and walk off the course to celebrate, saying to yourself, "I love this game".
Two hours after you left the courtroom, the phone rings and the clerk informs you that the jury is in. You rush back to court with your client. The bailiff brings the jury in, and you attempt to make eye contact with any of the jurors. They sit and the foreperson hands the verdict form to the bailiff. Your pen is ready and as the judge begins to read the verdict, your heart is racing and your palms are wet. When he reaches the plaintiff’s name first, you know that you have won, and the relief rushes from your body. The jury is excused, and you shake hands with your opponent. You walk out of the courtroom and you realize that there is nothing better than being a trial attorney.
James E. Hundman is a Principal of Rice & Hundman, Ltd., Wheaton. His practice is limited to Plaintiff’s Personal Injury Litigation.