TWO HEADS ARE BETTER THAN ONE :
Five Simple , Yet Effective Ways to Maximize the Partnership Between First- and Second-Chair Trial Counsel
By Jonathan J . O ’ Konek
It is the afternoon before you are scheduled to participate in a highly contested trial . In preparation for tomorrow ’ s trial , you have a busy day that includes witness meetings , reviewing exhibits and witness questions , and placing the finishing touches on your opening statement and closing argument . However , in the midst of trial preparation , the opposing counsel files a motion that demands your immediate attention . You instantly bristle , experience a feeling of dismay , and ask yourself , “ How will I be able to complete trial preparation and respond to this motion at the same time ?”
You lean back in your chair , prepared to respond to this recently filed motion . As you pick up the phone to cancel your next appointment , your co-counsel walks into your office and says , “ I know you are extremely busy today , would you like me to respond to this motion ?”
You happily accept your co-counsel ’ s offer . Now relieved , you continue to prepare for trial .
Introduction
Preparing for a trial , deposition , or other contested legal proceeding can be extremely stressful . As the attorney of record , you are responsible for managing the case ’ s legal filings , presentations , and multiple witness and logistical issues . However , having an organized and capable co-counsel can ameliorate much of this stress . As noted in the above example , as attorneys prepare for trial , they must often address competing time-sensitive demands , including responding to eve of trial motions , managing witness testimony , and reacting to unexpected case changes or complications . Yet , with the assistance of co-counsel , these demands become much more manageable . For example , co-counsel can prepare and respond to pretrial motions , accept responsibility for examining certain witnesses , and offer helpful feedback concerning trial strategy and presentation . Simply put , having an effective co-counsel makes your case better .
Therefore , early on in the trial preparation process , attorneys of record ( first-chair counsel ) should actively identify potential co-counsel . Additionally , attorneys who would like to serve as co-counsel ( second-chair counsel ) should actively seek out such an opportunity . Nevertheless , after obtaining second-chair counsel , how can first-chair counsel best utilize – and maximize the value – of their co-counsel ? Listed below are five simple , yet effective ways to maximize the partnership between first- and second-chair counsel .
Have Real Conversations : Ask for Help or Ask How You Can Help
The key to building a successful relationship starts with genuine communication between the first- and second-chair counsel . At the beginning of the case , the first-chair counsel should sit down with
his or her co-counsel and provide an outline of the case , divide trial preparation responsibilities , and ask for case-related suggestions . Moreover , the first-chair counsel should be open to the secondchair counsel ’ s suggestions and be comfortable asking for help or assistance from his or her second-chair counsel . Conversely , the second-chair counsel should listen to the first-chair counsel and ask how they can best provide assistance .
Remove Obstacles
The most important attribute of an effective co-counsel is being available to solve problems for the first-chair counsel . Therefore , an effective co-counsel should actively strive to remove vexatious obstacles from the first-chair counsel ’ s trial preparation plans . Namely , second-chair counsel should make themselves available to respond to pretrial filings , organize discovery and trial exhibits , and offer solutions to case-related challenges . Additionally , co-counsel ought to run interference on distracting items when something unexpected occurs – either in the midst of trial preparation or during the trial itself . Removing these troublesome tasks from the first-chair counsel ’ s plate will ensure the first-chair counsel can focus on his or her important trial responsibilities . Ultimately , by removing obstacles from the first-chair counsel ’ s trial preparation plans , the second-chair counsel will help ensure , at trial , the case is organized and presented in the most effective manner possible .
Engage in Active Listening
In addition to having important conversations , first- and secondchair counsel must both engage in active listening . First-chair counsel should foster a collaborative environment with their co-counsel , so the second-chair counsel feels comfortable offering helpful suggestions and solutions . Occasionally , second-chair counsel may feel uncomfortable voicing their opinions to the first-chair counsel . However , during trial , if the first-chair counsel forgets to ask a witness an important question – for example one that establishes an element of the offense – the second-chair counsel must feel he or she is able to pass the first-chair counsel a note that informs the first-chair counsel about this misstep . In those situations , the first-chair counsel will no doubt appreciate their cocounsel ’ s assistance and willingness to voice their opinion .
Provide Feedback
Since trials are more art than science , trial preparation constantly changes and evolves . When case-related circumstances change , both first- and second-chair counsel must provide feedback to one another about how they can best address these changes . For example , should opposing counsel raise an affirmative defense , both the first- and second-chair counsel should communicate about how to focus their energies on rebutting this defense rather than
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