Our 17th Year – Thinking on Your Feet
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In my last post “Prompts gonna prompt”, I described dipping my toe into the AI (or machine-assisted learning) waters to find that the machine can get us part of the way there and fast. It can prompt, generate, approximate and sometimes even delight. But it still cannot do the thing trial lawyers, witnesses and trial teams must do in the moments that matter most: be fully present. It is worthy to mention here that Elon Musk recently predicted that within 5-10 years, “there will be nothing that AI won’t be able to do better than any human.” Later on in the interview he added, “except for being human.” July 23, 2026 Economist Insider Interviews Elon Musk I will reserve a future post to delve more deeply into that caveat and its implications for our jury system.
Civil litigation has long rewarded preparation: knowing the record, anticipating adverse strategies, reading the room, presenting evidence through witness testimony and ultimately making the complicated clear. But preparation is not the same as performance. Turns out, the bridge between the two is the increasingly vital skill of thinking on your feet. I have written extensively about rehearsing for the courtroom (one example is here: The Art of Rehearsing For the Courtroom)
The courtroom has no prompt window
There is a seductive neatness to the idea that if we ask the right question, assemble and arrange the right evidence and/or presentation demonstratives, that the right result will be inevitable. Anyone who has ever tried a case knows better.
A judge or opposing counsel interrupts. A witness blanks. Something happens that changes the temperature in the room (in fact the literal temperature is the subject of endless debate). Technology hiccups. A point that seemed secondary becomes central. The list goes on. In fact, in every trial, something will happen that has never happened before. Every trial.
These moments cannot be met successfully with preparation alone. They require judgment, presence, sleep, nourishment and the ability to notice what is actually happening – not what the team hoped would happen when the run-through ended.
Thinking on your feet is not winging it
Courtroom agility is the reward for preparation. The advocate who can pivot gracefully usually knows the material well enough to separate what matters from what merely sounded good in practice. The witness who answers with poise has not memorized a script; they have internalized the essence of their role so that they are able to focus on the point of the question as asked within the limits of their knowledge.
Presence is practical. It allows a trial lawyer to hear the judge’s sudden, halting question. It allows a witness to pause rather than fill the silence. It allows a whole team to understand that a demonstrative is no longer helping (or worse having the opposite effect) and should be simplified, skipped or brought back later.
Machine assisted learning raises the bar for human judgment
The more AI enters litigation workflows, the more these human skills matter. Technology and machines can help generate ideas, summarize data, reframe and accelerate first drafts. But in high-stakes civil litigation, the persistent question has surpassed “Can we create something?” We now have the luxury of asking “Will this help jurors understand what matters, remember it accurately and feel confident returning to it during groupthink and in the end, vote in our client’s favor?”
The answer requires heightened awareness, restraint and judgment. Sometimes the more impressive and successful visual is the less persuasive one. Often the shorter explanation takes longer to build. Sometimes the best use of technology is to support a human moment, not replace it. Circling back to the essence of Musk’s quote, AI will never be better at being human, and humanity is at the heart of our jury system.
The pivot can be practiced
Build practice sessions that do more than confirm the plan. Ask uncomfortable follow up questions. The best teams pull in colleagues unrelated to the case at hand, who do this expertly. Rehearse objections. Test demonstratives with colleagues who have not lived with the case for as long as the team has lived with it. Practice a moment or two when things go “sideways” because at some point they will. I once heard Judy Smith speak. She’s the real-life “fixer” behind the American Thriller Series “Scandal.” When asked by an audience member what advice she would give, she offered, “have a plan. Assume something is going to go wrong someday and have a plan.”
The goal is not to predict every courtroom moment. The goal is to prepare so deeply that when the unexpected arrives – and it always does – to meet it with clarity instead of panic.
We often talk about helping trial teams see around corners. That still matters, but just as important is seeing what is directly in front of us: the judge’s concern, the witness’s hesitation, the juror’s confusion, the opportunity hidden inside an interruption.
Better tools, smarter prompts and faster ways to create will continue to shape trial preparation. Trial attorneys are well advised to learn them all. But the courtroom will continue to reward the practitioner who can stay awake in the moment, adjust without
straying too far from the winning theme and who knows that persuasion is not simply delivered, but also received.
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