The role of a good second-chair lawyer at trial is strategically crucial. Yet the second chair’s contribution can be difficult to see, compared with that of the lead lawyer starring in the show. Two major components of the second chair’s contribution are preparation (before trial) and listening (at trial). The preparation gives the second chair something to contribute, and the listening is what allows the second chair to make that contribution at the right time.
I wanted to write about second chairing partly based on my own experience (years ago) as a second chair at depositions, arbitrations, and trial. Sometimes I knew I was being helpful, such as by pointing out some questions the lead attorney didn’t quite get to. Other times I worried that I was being annoying or distracting and wasn’t sure how to adjust the filter on how much to share. It was crucial to listen not only to the information being revealed through the proceeding itself, but also to the subtle cues of the first chair on the best and worst times to speak up.
Various ABA publications have some good advice for second chairs such as “How to Shine as a Second Chair” by Myra Mormile and “Your First Trial: Understanding the Second-Chair Role” by Michael R. Carey. A few major themes of listening are woven throughout. One is active listening. The other is listening for what’s not there (perhaps the hardest kind of listening, cognitively). Another important aspect of the second chair’s role is that even though it’s not a starring role, the second chair is being observed as well. The second chair’s demeanor in the act of listening and assisting has to be controlled just as much as the lead lawyer’s.
Virtually every piece of advice on second chairing will talk about active listening. Mormile cautioned second chairs going to trial for the first time every to avoid “deer in headlights” syndrome. She’s not addressing active listening in the traditional sense of listening, rephrasing the statement back to the speaker, and asking him or her to go on. She’s talking about the activity that should come about as a result of listening:
Don’t react; anticipate. If the first chair turns to you more than you turn to him or her, you have failed as a second chair. Avoid this by anticipating where your first chair, and the case, is headed. Listen to your first chair, the opposing party, and the fact-finder. If opposing counsel directs the witness to an exhibit or references a specific case, you should pull it on your own before your first chair asks for it.
This idea that the second chair is always active also resonated with Carey:
[W]hen your first chair crosses that expert, you get to listen and take notes. But second chair is not a casual observer role–you are actively listening and evaluating the evidence for substance and delivery. Tell your first chair about any problems before it is too late. If you cannot successfully fulfill this role, you might as well be sitting in the gallery.
Listening for what is not said, what’s left out, what’s elided — that’s one of the hardest parts of listening, at trial or otherwise. The reason is what Nobel Prize winner Daniel Kahneman calls the availability bias. Our brains are biased towards information that is present in the affirmative sense. Yet to be a good second chair, a lawyer must try to overcome this bias and listen for missing pieces. As Mormile points out, “When your witness leaves out a point in his or her testimony, bring it to your first chair’s attention.” How does one overcome the availability bias to do this? It’s difficult, but checklists may help trigger your brain to search for gaps, a suggestion that certainly resonates with best practices for trial prep. (Just Google “trial preparation checklist.” Here’s one example of too many to count.)
Beyond listening for specific information, problems, and gaps, the second chair’s listening role is also atmospheric. The second chair should have some extra cognitive bandwidth (that the lead lawyer doesn’t, given the demands of that role) to monitor the entire scene, as Michael Carey points out:
You have the luxury of looking around the room to see who might be falling asleep, who is aghast, who is rolling their eyes, or who is nodding along with your first chair’s line of questining. First chair relies on you to provide a comprehensive evaluation of how the jury and the judge are responding to the evidence.
And your listening is itself being observed, as Carey further points out: “[R]emember that you are being watched by the jury. If you look like you are trying to spy on opposing counsel, the jurors will lose trust in you.” Thus, non-distracting, focused, respectful body language is crucial. Here are a good quick primer on effective body language in court and some videos from litigation consulting firm A2L.
As noted above and in earlier posts on this blog, I’m a strong proponent of checklists. The parent of the checklists-in-the-professions movement is Dr. Atul Gawande, author of The Checklist Manifesto: How to Get Things Right. Gawande recommends that process-based checklists should include some sort of post-performance or “after action” review. For second chairs, this is crucial advice for many reasons, not least of which is that presumably most second chairs want to move up to first chair at some point. Second chairs can seek an informal “after action” by asking their first chairs, “How did I do?” Listening is very difficult to evaluate in part because the act of listening is itself difficult to observe. But a first-chair lawyer who just finished relying on a second chair to perform a listening role may be able to give better feedback because of the intensity of that experience.