Wegner’s Rules of Engagement

This article was originally published by 2014 LCA President William E. "Bill" Wegner (1950 – 2021) in the July 2015 issue of Litigation Commentary & Review, and is republished in his honor.

We Fellows of the LCA have collectively tried thousands of cases and we are the best at what we do.  The following is NOT intended to inform you about something you don’t already know.  It is a tool I use, every time I try a case, for my team.  Especially the younger members who are less experienced.  These are “Wegner’s Rules of Engagement”.  I share them with you so you can have in one place, to share with your teams, rules that I know you have employed for years.

Here is what I tell my trial teams:

These rules have been compiled from over thirty years of trial experience.  They are not negotiable.  Violation of any rule will be punished with adverse consequences to our case – almost instantaneously.  This sounds dramatic.  However, I have seen it happen, without fail time and again.  Violations have resulted in swift, adverse consequences every time.  These rules will be posted on the wall of the war room to remind us of them every day.  (A copy of the poster is at the end of this article.)  They apply to EVERYONE, client, staff, lawyers, paralegals, EVERYONE.

Here they are:

(1) EXPECT THE UNEXPECTED.  At trial you can’t control everything.  Don’t misunderstand – you should keep trying to control as much as you can.  But you should also realize that many unexpected events will happen during trial.  Witnesses will say things you didn’t anticipate.  The judge will make rulings you couldn’t have predicted.  And opposing counsel will do everything possible to throw you off.  When this happens, you’ll have to respond and do your best to repair any damage to your case and stay on track.  If you expect the unexpected, you’ll do so more easily.

Trial is like putting on a play, but where some of the actors (opposing counsel and parties) are deliberately trying to make the play go poorly for you.  So while you’re putting on this elegant production there’s someone on the other side who’s trying to screw it up.  But if you expect the unexpected, it doesn’t throw you off your game in the same way it would if you think that you’re going to put on a production and the other side and the judge are just going to sit like an audience and watch it.  Don’t be rattled when the unexpected happens as that will cause you to violate several more of the rules that follow.

(2) IT WILL NEVER BE PERFECT.  Even the things you thought were under your control won’t always go as you had planned.  You have worked very hard to make everything perfect, but accept that not everything will, in fact, be perfect.  Your exhibits may not come up on the projector as you had hoped.  A page may go missing from your outline.  You might fail to object to a key improper question by your adversary.  Again, don’t misunderstand – you should work hard and strive for perfection.  But if you let yourself get demoralized because your performance or one of your teammate’s performances was less than perfect, then you undermine your own morale and your own confidence.

(3) SHOOT ONLY AT THE ENEMY.  This rule seems obvious but it can be hard to follow in the heat of battle.  Your adversary is your enemy in this case, not your own team.  When things start to go poorly, the worst thing you can do is to take it out on the people helping you at trial.  You and your team will make mistakes at trial, no doubt about it.  And while infighting and bickering are human nature, you should resist them at all costs during trial, or morale will go into the tank.  If you see this starting to happen, step back, take a deep breath, go get a snack, take a 20 minute break – but do something to interrupt it.  Take care of each other.  When someone makes a mistake, back them up.  Help fix it.  Don’t attack them or speak against them behind their back.

(4)  NO INDECISIVENESS – COWPENS. When you are in court, you need to look like you know what you are doing at all times, even if you don’t.  A big part of this is to be decisive.  You should be decisive and confident in your objections, your examinations, and your arguments.  The judge and jury will not be impressed if you appear to be fumbling for answers, shuffling papers, or look confused.

The danger of decisiveness, of course, is that you make the wrong decisions.  But this is yet another reason why you have spent so much time preparing for trial.  By now, your instincts about the case should be honed to the point where your snap decisions are the right ones.  And if not, well, Remember Rule 2 – it will never be perfect.   But better to make a few bad decisions than to appear indecisive.

The battle of the cow pens teaches the lesson of decisiveness from a military perspective.

Revolutionary troops were drawn in to an ambush that had them in a “kill zone” boxed in on four sides.  Rather than pause to consider which side of the box to attack would be best (weaker) the commander just picked one and attacked that one.  If he had hesitated or waited for information to educate his decision, he and his troops would be dead before he could make one.

(5) NO SLEEVE TUGGING.  While trial is in session, you and your team will have ideas that you want to share with one another.  This is a good thing, and one of the main reasons why you have a team.  But there is a right way and a wrong way for you and your team to share these ideas.  If your team is constantly tugging at one another’s sleeves, whispering frantically into each other’s ears, and furiously passing notes, the judge and jury are going to notice.  They are going to wonder why you are doing this.  Does this mean the other side has just made some good points, they will ask?  Or, does this mean you and your team are not prepared for trial, which is why you are scrambling?  You do not want the fact finder to have these thoughts.  When an idea comes to you, before you pass it along, ask yourself, is this something I can share with the team during a break?  Is this something I can share after court adjourns for the day?  If so, write it down and bring it up later.  If not, if it really has to be shared now or lose its utility, the idea should be calmly written down, and calmly passed along.  The judge and jury should see two relaxed colleagues passing a note, not two frantic lawyers racing to keep up with their more-effective adversaries.

MOST IMPORTANTLY, trials happen, literally, at the speed of sound.  You must be paying attention to everything that is happening real time or you may miss something important – important evidence or an objection you should make.  If someone is “tugging on your sleeve”, you will be distracted, and you may well miss something you shouldn’t.

(6) SCREW UPS WILL HAPPEN.  It’s not just that some things won’t be perfect; some will be awful.  Exhibits will go missing.  Demonstratives will not come out as planned.  Your witnesses will get confused and say the wrong thing on the stand.  You have to expect things like this to happen so you can respond accordingly and roll with them as best you can.  You also have to be sure to let everyone on your team know if you think something has been screwed up.  Even if it’s your fault, bring it up so it can be fixed.

You’ve worked and prepared hard enough so that none of the screw ups you experience are case threatening.  But they will impact your case to some extent, and you need to be ready for them, and manage them.  And through it all, remember Rule 3 – don’t shoot at your own teammates.  No matter whose fault the screw up is, you have to work together to fix it.  Recriminations during trial are not helpful and in fact are affirmatively harmful.  Just work together to fix the problem and do better next time.

(7)  IT ALWAYS SOUNDS BAD WHEN THE ENEMY IS SHOOTING.  We’re going to trial because we believe we can win.  But you always will have doubts about the strength of your case and the chance your opponent might prevail.  And at no time will those doubts be as strong as when your opponent is putting on her case.  During your opponent’s opening statement, while she is putting on her witnesses, while she is crossing your witnesses, and during her closing, you will have doubts about your case.  You will wonder if you missed something.  This is to be expected – it always sounds bad when your opponent gets to frame the case her way.  Don’t get down or be discouraged.  Don’t’ show that you are concerned or worried – see Rule 13.  Remember that you have a great case, and you will convince the judge and jury of that when it is your turn to talk.

 (8) BE FLEXIBLE.  No matter how good your battle plan is, any military strategist will tell you that after the first shots are fired the plan goes out the window.  That’s not to say you don’t’ try to follow your plan.  But you have to be flexible enough to adapt your plan on the fly, over and over again, as new and unexpected things happen during trial – see Rule 1.  For example, before trial you are going to anticipate what the other side is going to say, and what you are going to say in response.  But then the other side may not say what you expected them to say.  You need to be flexible and change your plan accordingly.  It does not good to say “This isn’t the case I wanted to try!”  This is the case you’re trying.  Don’t struggle against it; be flexible and go with it.

(9) BE CREATIVE.  In addition to being flexible, you need to be creative and think outside the box and around the corner.  This is especially important as you strategize with your team throughout trial.  Don’t be afraid to suggest new ideas for the trial, no matter how absurd they might seem.  You might have thought of something no one else had considered, and that something could help you win.  Better to raise and shoot down a “bad” idea than to stifle your team’s creativity and miss a good or even a great idea.

(10) DON’T FRET THE SMALL STUFF.  This is a corollary to Rules 2 and 6.  Bad things will happen at trial. Many (if not all) will seem hugely significant to you and your team.  But before you stay up all night trying to fix them, step back and ask, how important is this really?  In a perfect world, you would fix every single little mistake and issue that arises.  But as we’ve already established, trial is not a perfect world.  Sometimes, you have to just let go of minor issues, so you can pay attention to the big ones.

(11) BE CALM AND THOUGHTFUL.  This one may seem obvious, but it’s not in practice and it’s important.  There is nothing worse in the middle of a battle than having someone yell “We’re all going to die!”  No matter how bad it gets, you must keep your cool and your composure.  If you lose your head, you may also lose your case.

(12) OWN THE COURTROOM.  This rule ties in with Rule 11.  It’s not enough to be calm and thoughtful on the inside; you need to be calm and thoughtful on the outside, too.  And if you are, you will project a mastery of the courtroom that everyone will notice.  You want to look relaxed, in charge, like you know exactly what you are doing and that everything is going according to plan.  You definitively do not want to project the opposite.  When you see a lawyer frantically flipping through documents, looking agitated, out of control, you know what that means.  They’re nervous, they’re upset, they don’t know what they’re doing.  That’s not you – you want everyone to think you are in total control, that this is your courtroom, and everyone else is just visiting.

(13) NO REACTIONS.  Don’t react.  A master of the courtroom doesn’t react, because a master of the courtroom already knows what is going to happen next.  When something happens, good or bad, your reaction should be the same.  Neutral, even bored.  Respectful, certainly.  Paying attention.  But not reacting one way or the other.  This is harder than it sounds.  Opposing counsel will misstate the law; witnesses will lie; the judge will make bad rulings.  You will want to jump up and shout.  But if you do, you will make it even worse.  You make the fact finder pay closer attention at exactly the wrong time, which could hurt the case.  You may anger the judge, which is never good. And you will certainly embolden opposing counsel.  The same goes for celebrating.  No fist-pumping, no high-fiving.  No chuckling, no eye-rolling, no snorting, nothing.  Stay calm and thoughtful (Rule 11).  Continue to own the courtroom (Rule 12).  Don’t react.

(14) KEEP YOUR EYES ON THE GUN SIGHT NOT ON THE GAS GUAGE.  This is generally more a rule for your client than for you.  Everyone knows it’s important to keep costs down in any case.  Throughout the litigation you’ve been looking for the least expensive alternative for your client.  But once you get to trial, this mindset needs to be readjusted to some extent.  You need to explain this to your client:  when we’re in trial, we need to do whatever we need to do to win.  The consequences of losing are just too high – that’s why you’re in trial in the first place.  So you need to have your eyes on the gun sight the whole time, figuring out how to beat the other side.  Time spent worrying about the bill now is distracting, may prevent doing something important and results in false economy.

(15) REMEMBER THAT WE ARE RIGHT.  The last rule may be the most important.  It underpins all of the rules above.  Trial is hard.  You will be tired, you will be stressed, you will be constantly worried about how the case is going.  It is hard to keep yourself up and be “on” and in the game at all times.  It is helpful to have a north star to keep you focused.  That should be your conviction that you are right.  Remember why you went to trial in the first place.  You know you can win.  You know your case is solid.  You know you are right.  This sounds obvious, but four weeks into a many week trial it is easy to forget.  So when you are having trouble sticking with Rules 1 through 14 remember Rule 15:  You are right.  That’s why we took this case to trial.  So let’s go out there and convince the judge and jury.  We are right!

A final point for you and your team:  remember you are human.  Humans need to sleep. Humans need to eat.  Humans need to shut their brains off now and then.  So make sure you and your team take some time off, even if it’s only briefly.  During trial, you could fill every waking minute (including many minutes you should be sleeping) with preparation.  Don’t do this, unless it’s a one or two day trial.  Trial is a marathon, not a sprint, and you don’t want to burn yourself or your team out.  You need to make sure you get enough sleep, and you also need to take some kind of small break now and then.  For example, instead of ordering food in every night, you should make time for a team dinner at a nearby restaurant.  You can go back to work afterwards, but the break will be invaluable.  Make this rule, not the exception. Reboot, recharge.  And then go get ‘em!