Monday, May 7, 2012
Over at the ABA Journal Blog, there's a podcast featuring three expert trial lawyers who offer tips to new lawyers on trying your first case. Click here for the link to the podcast and below is an excerpt from the transcript:
I have a question for all of you. First off, what are some of the things they teach you in law school about trying cases that in hindsight are just absolutely ridiculous? Jim, do you want to start first?
Jim McElroy: I don't remember being taught a thing in law school about how to try a case. There was, I think, one trial techniques class offered that I wasn’t permitted to take for some reason. But I don't remember anything that I learned in law school about trying cases.
Barbara Ashcroft: Let me just follow up on that. I agree with Jim. Even when I was in law school, unless you took specifically a trial advocacy class, you're learning only theory and substantive law. You're not learning the practical application of law. Here at Temple Law School we're really huge in trial advocacy and a lot of the other law schools are now as well. But during the time I went to law school, there were no types of skills training.
Stephanie Francis Ward: Steve, what do you think?
Stephen Hurley: One of the things we teach or that is taught in trial advocacy today that I think gets my goat is teaching students to ask permission to move around the courtroom. I can't tell you how many students who've been through trial advocacy walk in the court and say to the judge, "Your Honor, may I approach the witness?"
As I tell them, anytime you ask the judge for permission there's a 50/50 chance the answer will be no. One is better just doing it and having the judge say, "Not in my courtroom". I think you'll find that most judges, as long as one moves around the courtroom with a purpose, they’re not going to stop you.
Barbara Ashcroft: I think I have a little bit of a disagreement on that, Steve, only because I think that when a judge will say to you, "Hey, don't move around my courtroom," then you've sort of gotten spanked in front of the jury. Where I think if you ask initially, "Your Honor, may I move around the well of the court," there's a better opportunity for you to show the jury and also respect to the judge. I think we differ a little bit there.
Stephanie Francis Ward: Maybe is that part of your trial strategy? I mean if you have a judge that doesn't want you to ask his permission, maybe it's good to get spanked in front of the jury.
Stephen Hurley: In a close case, the lawyer that takes command of the courtroom is the one most likely to win. I would rather have the judge tell me in front of a jury, "Don't do that," than to be, at least for my initial impression to the jury, to be one of a supplicant. It can all be cured by doing homework–
Barbara Ashcroft: Absolutely.
Stephen Hurley: You go into the judge's courtroom the week before and you watch what the judge is doing and you'll know from that. But in the absence of not doing homework–which isn't a good thing–in the absence of that, I would prefer to take the chance on the judge saying no. Most judges will say it in a very kind way, especially to a young lawyer.
Jim McElroy: I would take a middle ground here and say that when approaching a witness, I'd go either way, but when entering the well–especially in California, I notice, and especially with heightened security around the judge's safety, all that kind of stuff–entering the well, walking toward the judge into the well is something that generally I would encourage a new lawyer to request permission for.
Usually, you’re handing documents–at least in California courts–to the bailiff or someone else who then approaches the bench with the documents. But on the rare occasion where you need to approach the bench with a document or something, I think the better course is to ask the judge if you may approach.