Trial Practice Is Better Than Trying to Practice

• Author: Kristin Bender
• Pages: 35-38

Published in Litigation, Volume 47, Number 3, Spring 2021. © 2021 by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof may not be

copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association. 35

Trial Practice

Is Better Than

Trying to Practice

KRISTIN BENDER

The author is with Willkie Farr & Gallagher LLP, Washington, D.C., and London.

This article memorializes her time with Boies Schiller Flexner LLP, Washington, D.C.

“I don’t love the law,” I used to whine to myself in law school before

dutifully pressing Play on yet another Supreme Court podcast.

“You know, I don’t love the law,” I would confess to my co-

clerks, hoping I’d displayed some knack for legal philosophy to

which they could point in contradicting me.

The love letters from law firms that trickled in to recruit clerks

depressed me. I told myself that law would be a stopgap until I

found something I actually loved.

Then last year I went to trial. More accurately, I went to trials.

Multiple trials. There were four of them. And everything changed

for me. Everything. Completely.

The first came to my attention about seven weeks after I started

with the firm, when an associate I barely knew stopped in to say

goodbye. She would be out of the office until February, she said—a

happy combination of her well-timed vacation and trial. I looked

up from a primer on equitable defenses that I’d been revising since

I’d started with the firm, blinking. Trial? That sounded good.

The same day, I approached the partner responsible for sched-

uling and asked if I could attend. I was thanked for my enthusiasm

and assured there would be future trials. That was fair. The associ-

ates who had been with the case for years had dibs. A few weeks

later, the partner stopped by my office. An associate was coming

home from that trial. Was I still interested?

Yes, I was!

The Perfect First and Second Trials

It was—for me—the perfect first trial. It wasn’t really ours. It had

facts that substantially overlapped with our case, which was sched-

uled for trial a few months later. The cases were close enough that

it made sense to get the lay of the land, assess the experts com-

mon to both of them, and see how each side’s facts looked as they

came into evidence. We were there to observe, which gave me the

luxury of watching what was essentially my case unfold without

the distraction of doing anything at all to support it.

Here’s what I saw.

Each day, an associate would arrive early to sit near an evi-

dence screen with a view of the jury and take notes on the tes

-

timony and rulings. At the end of each day’s proceedings, like

clockwork, lead counsel for our twin trial would announce that

he was done for the day and invite the team to meet him for a

nightcap. The group would reconvene at the hotel, where con-

versation would flit between case predictions and war stories.

This trial—though not all I observed—was trial-lite.

Winter ticked to spring. Our trial came up to bat. Our cli-

ent had requested that associates alternate working remotely

in shifts. I was scheduled to attend the first 12 days and the last

nine. Those of us taking first shift would be in close quarters; our

hotel rooms and the trial team war room would be attached by