When a lawyer says that they are “on trial” pretty much everyone in the legal profession understands that the lawyer is currently super busy and needs to devote all of their efforts to the trial and little else. Indeed, attorneys have often told courts and other lawyers that they were “on trial” in order to seek extensions of matters and to engender sympathy for their situation that might require flexibility with the lawyer’s work obligations. Until I fully prepared for a trial recently, I did not really understand what was so time intensive about being on trial that made it so different from handling any other task within the legal profession. However, I have come to realize why being on trial is different for a few reasons from other legal tasks and why lawyers dealing with trials might not have as much time flexibility as other attorneys.
Court Days
Appearing in court can be very disruptive to a lawyer’s practice. It is difficult for lawyers to work on papers, return communications with clients, and handle all of the tasks they have on other files if they are in court all day. In some courts, lawyers might even need to check in their phones with security, which can make it even more difficult for lawyers to manage their affairs. Fortunately, most of the time that lawyers appear in court for conferences, motions, or other types of hearings, they usually only need to be in court for a maximum of half a day and can then return to an office to complete other legal tasks.
This is not the case for most trials. When courts conduct trials, they are usually whole-day events, especially if they empanel a jury. If the trial lasts multiple days, and most of them do, this means that counsel needs to be at court early in the morning, and will not need able to leave court until the end of business hours. This makes it very difficult for lawyers to deal with all of the matters that might come up during a working day.
Pre-Trial Documents
Lawyers are used to preparing documents on short notice, and attorneys usually do not have much time to respond to motions and the like under normal circumstances. However, this problem is compounded for trials when deadlines are often even more rushed than normal. The complications can include motions in limine asking the court to make evidentiary rulings before a trial gets started, jury verdict sheets, jury instructions, and still other types of documents needed to prepare a case for trial.
Normally, people put off these tasks until the last minute since many cases settle before a trial. However, that desire to avoid what ends up turning out to be necessary work only compounds the time crunch. Moreover, lawyers usually need to do jury research, prepare opening statement outlines, and begin to prepare direct and cross examination outlines right before trial, which can further add to the stress and workload of trial lawyers.
Work During Trials
During trials themselves, lawyers also need to keep busy. After a trial each day, lawyers often need to prepare questions, exhibits, and arguments for the next day, and this leaves little time to complete other types of tasks. Moreover, unless a lawyer is staying close to a courthouse, the travel time it takes to get to and from the courthouse can be longer than commuting (especially if a lawyer is mostly working remote) which can drain the time a lawyer has to spend on the trial or other legal tasks. Lawyers often need to communicate with potential witnesses and coordinate administrative functions related to a trial when they are not in court, which can also soak up a lawyer’s free time.
In any case, until I was on the eve of trial for the first time in my career, I never really understood why lawyers always receive a level of deference when they said they needed to prepare for or appear at a trial. However, a trial is unlike any other function a lawyer needs to handle, draining a lawyer’s time and making it very difficult for the lawyer to complete any other task.
Jordan Rothman is a partner of The Rothman Law Firm, a full-service New York and New Jersey law firm. He is also the founder of Student Debt Diaries, a website discussing how he paid off his student loans. You can reach Jordan through email at jordan@rothman.law.