The radio silence, I am sure, has been deafening. For the last three plus months, gone are the attempted humorous musings from my daily struggle to be a successful lawyer. The reason? I had to serve a small jail sentence for a misunderstanding with a sheriff’s deputy. Wait. No. That can’t be right. I would have made the ABA Journal or Above the Law as the poster child for lawyers behaving badly.
Back to back to back to back to back jury trials are the reason, specifically the resulting sleep and life deprivation that working 15 hours or more a day for three months straight are the excuse. The lessons from this marathon stretch of litigating are many and the negatives are equally numerous. For instance, I can now say that I have experienced flop sweat in front of a jury (that would be a negative as the suit I was wearing had to be discarded as toxic waste). But despite the sense of impending terror I had while cross-examining a witness who was much smarter than me, understood what she was talking about better than I and could pronounce her chosen career field unlike myself, I was still able to not look like a total fool and helped my case in chief.
To give you an idea of what exactly was going through my head as I was asking questions, picture if you will a lawyer standing before a jury behind a podium. This lawyer has his notes neatly arranged in front of him with records and a deposition transcript neatly tabbed all within reach. The witness is seated on the stand comfortably answering questions while the lawyer asking those questions is gripping the podium so hard that if the jury was looking they could see how white the lawyer’s knuckles were. The remainder of the lawyer’s posture can only be described as statuesque as if treating the witness if she was a T-Rex: only harm comes if she sees me. A leading question would be posed that would only have a yes or no answer possible but as soon as the words finished being spoken, that lawyers inner monologue began shouting internally (which thankfully only the lawyer could hear):
PLEASE OH PLEASE DON’T FIGHT ME ON THIS QUESTION BECAUSE I HAVE NO IDEA HOW TO FIGHT BACK OH NO DON’T YOU DO IT NO NO NO NO NO NO!!!!!! AHHHHHHH
By the grace of God, there was no fight back throughout the entire cross-examination. There was no deviation from the planned questions and everything fit together perfectly. When it was all said and done, I was able to sit down feeling like I had stared death in the eye and death had blinked.
Mind you, the feeling of success was only temporary as I had to do it all again the next day and the next day and the day after that.
Anyway, that’s what I’ve been up to and why I haven’t had the time to write. There is only so much free time one has when waking up at 5am, working until 11pm (or later) and starting the process all over again the next day (usually it was from about 5:13 to 5:17 every morning which was after I responded to the emails from the boss and before I had finished my first cup of coffee). I’m hoping that my schedule does not unexpectedly fill up with trials (or tribulations) and I am able to get back to my normal Namby-self writing about the experiences as a (still somewhat new) lawyer.
If nothing else, I’ll just live tweet my next deposition.
Picture if you will it being two in the morning and you are in a deep slumber. It’s precisely at this moment you wake up to the sounds of something being pounded into the wall. It’s two in the freaking morning meaning that no person in their right mind is actually using a hammer at the moment…except that’s exactly what it sounds like. If you are me, you continue to lie there to figure out what in the hell is happening and of course, the noise stops.
Then it starts again which leads me to decide if (1) I should get out of bed, disarm the security system and go pound on his door to tell him to stop it OR (2) I should stay in my warm bed and without disturbing the wife send a very strongly worded email. Because I’m tired and I have to work the next day and I don’t want my sleeping wife to wake up and tell me to go yell at him, I choose the email option. Choosing this option, however, doesn’t mean that the email writes itself. Draft one simply was “What the f**k is that noise? Stop it!!!!” which was going to be followed by me stomping my foot on the ground but that wouldn’t work so well. Draft two was a little more substantive:
It sounds as if you are hammering something into the wall at this very moment. Imagine my surprise when I looked at the time to see that it is two in the morning and realized that you have waited to do this exactly at the moment I have chosen to sleep. Please remember that like I said when I first met you, I am a lawyer and that requires me to sleep ever so little so I can the energy to suck the souls out of the weak and powerless. I humbly request that you do not interrupt my sleep so that I can be the best soul sucker at my firm. Thanks.
I deleted that draft when it dawned on me that it is now 2:30 in the morning and humor is not what I should be going for in this email. The noise started again so I do what any normal person would do in my stead: I laid down on the ground and put my ear to the floor to see if I could hear any more detail of what in the actual f**k was going on fifteen feet below me. No luck. The noise stopped almost as quickly as it started and so, back into bed I go to draft yet another email missive to the noisy neighbor:
Dude: It’s after 2am. I can’t tell if you’re having sex or just using a hammer. I hope that you are actually not engaging in home improvement because I cannot think of a rational reason for you to be making that noise at this time. Please consider your neighbors above and below you. Thanks.
There it is, the perfect email. Now, I just want to wait until I hear the noise again to send it…. In a surprise to no one, I fell asleep before I could send the damn email. Thankfully the sounds below did not return.
Colleagues far more experienced than I have told me that when you are trying a case in front of a jury that it is essential that every thing you do has a purpose. Don’t stare at the jurors, don’t be a nuisance in the courtroom during breaks, don’t give off a vibe of superiority, don’t wander around aimlessly and so on and so forth. The lesson is that juries are taking everything in while they share the courtroom with the lawyer and that will directly impact how your client fares during deliberations.
I hope this is not actually true.
Picture with me, if you will, a courtroom full of lawyers, a judge, clerks, clients and a jury. The courtroom is stone silent and the trial is about to get underway. Yours truly is sitting at counsel table conferring with the client when the partner taps me on the shoulder. I swivel in my chair so that I can address her request and any other that she may have. It is in this simple movement that I am so focused on what my boss requires that I forget that there are devices mounted underneath the table that are at the same height as my knee.
A simple equation: metal object plus my kneecap moving at speed equals extreme pain.
I wish I could say that I did not react to what felt like a knife entering into my kneecap. I wish I could say that I was able to remain silent as it felt. I wish I could say that I was able to hold back from crying in open court. Sadly, I cannot say these things. Nor can I say that I refrained from profanity. When the metal underhangy-thing of the table impacted my knee, I saw a flash of light, nearly fell out of my chair turning away from the jury, gritted my teeth, covered my mouth and let fly as quietly as possible a certain four letter word that rhymes with a variety of water fowl.
As we have just passed the day of thanks, I figured it would be a good time to state the obvious: I am thankful for my wife, my family and my friends. But that doesn’t capture everything that I am truly thankful for at this time of the year. You see, something happened that has given me a refreshed thankfulness for being a lawyer: I got a new job. And for the first time in my professional life, I actually feel like I am a professional.
Those words themselves cannot adequately convey how much happier I am.
No longer do I have to worry about my partners breaking promises to me, no longer do I have to worry if I am going to get a paycheck on time, no longer do I worry if the paycheck is going to clear. I could go on, but you would be amazed how mind-numbing these worries can be especially when you are trying to settle a case on behalf of some ungrateful client that (1) doesn’t think you’ve gotten her enough money and (2) thinks you make too much money. I go to the office, I practice law, I come home. Day in, day out. I kinda like it. A lot. I still get to practice the same way and deal with the same work, but instead of grinding my way through the minors (think Single A ball) I am now in the majors (with a playoff contender).
The downside is that I am working a lot more. And that really isn’t a downside because I am loving what I am doing.
I could blather on about how nice it is to have my own secretary, but that will come. This is me sharing what I am thankful for. To sum up my present state of unmitigated thankfulness, I want to share what someone told me just last week:
“Namby, when things are all said and done, I know you are going to be the best trial lawyer I’ve ever encountered.”
It’s taken the better part of a decade, but someone with an eye for talent has validated my work ethic, my God-given ability and my desire for success. Needless to say, I was a bit taken aback by this compliment from someone that I had just started working with mere weeks before.
There is a lot to be thankful for at this time and at all times. I am thankful for you, my readers, that have stuck around for nine years reading my words. I am genuinely hopeful that my new opportunity, while it means working like a maniac, allows for another decade of hysterical happenings in the halls of justice. And on this note, it’s time for me to get back to work.
A trial is the hard part.
You work incessantly to get through a day of putting on evidence and then you work into the wee hours of the night to prepare for the next day. After sleeping for mere minutes, you get up and start the process all over again. After the first or second week of it, you get used to it and you get into a routine. Despite the long hours, little sleep and bad eating habits, I don’t find the trial to be particularly stressful. In actuality, I find the trial to be a fount of adrenaline-fused energy and the clock just seems to fly.
The stress happens once judge takes the case under advisement or the jury leaves to deliberate. Time ceases to move, seconds last hours and my stomach begins to attack the rest of my insides. After the first day, I start to rationalize what the jury is doing in an attempt to understand why they haven’t come back in and awarded my client exactly what we asked them to do. This goes on until after lunch on the second day when doubt begins to creep into my mind. If deliberations have reached a third day, you can already bet I am negotiating with God (a) attempting to change the jury’s mind and (b) begging not to be fired.
Then the call comes informing you that a verdict has been reached.
At that precise moment it is like someone has stuck you with an IV of anxiety. It’s also what I imagine the process surrounding getting to the hospital for child birth is like: grab the stuff you’ve already set out, make sure you have pants on and run like hell to the courthouse. Did I mention the ton of bricks that has seemingly crashed down upon your chest? Definitely like that. When finally getting to the courthouse, pray that security is friendly because the amount of shaking, twitching and sweating going on between you and your client may give the sheriff’s a little pause before letting you through.
When you finally get past the security checkpoint, your knees get a little weak and it becomes harder to walk. Silence falls over everyone with you, the pace and pulse quickens and for me, every moment of the trial flashes through my mind as those final steps to the courtroom occur. Due to the fact that I am a hot mess of anxiety, I can only pray that someone else is going to open the door because I am not sure I could physically handle moving the weight of the door. Those last several steps to counsel table are the most helpless I’ve ever encountered but somehow you overcome this to sit down knowing full well that you will be standing again moments later to hear the finality of all that you have worked to achieve.
You spend a lot of time prepping for trial. You read, you note, you think, you plan, you think some more and the process then starts over. Day in, day out, until you know everything there is to know. Or, as the case more likely is, you know everything that you had time to prepare for and hope that there is no smoking gun that you somehow missed. You have to look at every fact from every angle. Then stop your thinking to try and start thinking like your opponent while repeating everything you’ve already done.
I don’t know about you, but my brain hurt just writing that last sentence.
Then trial arrives and time begins to move at warp speed. Just two weeks ago, you thought that you had all of the time in the world and now, you work 18 hours a day praying that God somehow adds a few precious minutes to the days clock. The planning that you had done three months ago seems like an afterthought as everything gets rearranged depending on what happens once the jury is seated in the courtroom. It’s chaos:
“Oh? She didn’t say that? That means that we can now avoid this landmine we were so worried about.”
The relief turns into terror:
“What? He said that? That f**ker is making up shit on the stand…now how do we survive this tripe?”
And finally, the most important question:
“How do you think the jury is thinking? Do they like me? Do they like defense counsel? Are they grasping at our theory? ARE THEY GOING TO SIDE WITH US?”
I say all this to make crystal clear that when the slings and arrows of trial start flying, you had best have done your prep work so that you can respond as if it is mental muscle memory any question that gets posed to you as part of the trial team.
What did the Defendant say in that letter from eight years ago, on the third line of the first paragraph????!?!? We need it now!
If you don’t know the answer to that obscure question, you’re well on your way to getting yourself fired…and losing the case. You might not be the one leading the charge against your opposition, but you damn sure better show that you deserve the seat at counsel’s table.
I do love the smell of trial lawyering in the morning.
Sitting in a courtroom and watching a professional witness be cross examined can be a thing of beauty or an abject disaster; it all depends on the questions the examiner poses to the witness. As most lawyers will tell you, there are a few basic rules to this art: (1) always ask leading questions, (2) never ask a question where you don’t know the answer and (3) quit while you are ahead. Obviously, the rules are flexible depending on the trial situation and one is encouraged to take risks if they are getting their asses kicked by opposing counsel at trial.
Presently, I am working with another lawyer on getting ready for trial. We help each other on strategy issues and we look at each other’s work to give feedback. To understand the working relationship (while not bragging) it goes like this: he has been nothing but full of effusive praise for my work and commentary whereas I cannot believe the low caliber horse manure he hands me to ‘review’ and provide feedback.
You guessed it, I am now doing his work for him. As we are a team and we sink or swim together, I must honor a special commitment to help him. Also, I don’t want to get fired because there is no “that dumbass” in the word team.
The reason I bring all of this up is that I was working on a cross examination that he prepared to be used with the key witness for the other side. As I sat reading this monstrosity of an examination, I couldn’t help but read each inartfully worded question after another and think: I am reading the Charles Dickens of cross examination. The more words that you, as a lawyer, jam into the question on cross examination is a chance for the witness to hurt you. An example of too many words in a single question:
You left the restaurant after having a few drinks but you stopped at the grocery store to buy more gin to drink at home because you wanted to keep your buzz going.
Each of the facts may be true, but the witness could still squirm out of the question by coming up with some clever answer that you have not thought of the answer yet. If this is a key point, you are going to want to slowly take the witness through it so that the jury will understand and you are going to want to move slowly because you don’t want to get hurt by the witness. The witness’s lawyer is going to have him prepared to fight on this question and no witness is going to give you the prize easily (usually). Just like tossing a frog into a boiling pot of water, the witness will jump out of your trap; so you have to gradually lock the witness into what you are trying to say. The ultimate goal of the above question is to show that the witness intended to keep drinking, so you have to build up to it with baby steps:
You stopped at the restaurant.
You had a drink.
They make good drinks at the restaurant.
You had another.
You left the restaurant.
You got in your car.
You drove away.
Then, you stopped at the grocery store.
You stopped at the grocery store and you bought two limes.
You stopped at the grocery store and you bought a bottle of tonic water.
You stopped at the grocery store and you bought a bottle of gin.
You left the grocery to head home.
Where you wanted to keep drinking.
Why ask one loaded question when fifteen simple questions will paint the picture for the jury? I have spent the majority of my time over the last few days re-writing Dickensian cross-examination questions into short declarative statements. It’s a fun task that someone has to do. I hope, that when you are prepping your cross examinations that you don’t emulate Charles Dickens.
Unless you are my opposing counsel.
It’s Halloween. It’s the time to dress in costume and beg for candy from strangers. But what is one to do if you want to be in costume, begging for candy…but you have to go to Court as part of your day job? Over the last few days, after much debate and thought, the decision has been made that Halloween is clearly an exception to the business attire required in legal settings. Thus the dilemma arises of determining what costume should I where to court?
The options are a plenty: my coworkers believe that I should celebrate this day decked out as a superhero lawyer. This would be a simple costume requiring only a ‘Superman S’ t-shirt underneath my suit however, in order to make the transition, the Court may view my required disrobing as public indecency. My father, when he would acknowledge the Halloween festivities, would wear a hideous latex face mask that was probably leftover from a horror movie. The downside to using this mask is that I cannot breathe inside of it. Or really be heard when I speak. I was also toying with going as Batman but that approach could have potential downsides:
Me: Good Morning Your Honor, I’m Batman, on behalf of the Plaintiff.
Judge: I’m sorry, you’re who?
Me: I’m Batman.
Judge: Deputy, please take Counselor Batman, to the Bat Cave. I find him in contempt.
Another issue for consideration is the judge. What happens if he or she isn’t into the Halloween spirit? Or what happens if the Judge is into Halloween but doesn’t want lawyers to ruin the Court’s fun? It isn’t like the Court has posted a standing order that delineates which judges are tricks or treats. I definitely don’t want my client harmed because I decided to engage in a little tomfoolery to celebrate this day. My Court hearing is in a few hours and I haven’t made a decision (or, well, purchased a costume). Maybe I should just go as a Namby Pamby attorney?
We lawyers really need a CLE to cover this topic.
The advantage of a being the young and dumb associate attorney in the office is that the partners do not want to waste their time dealing with the cases that aren’t likely to lead to anything in terms of settlement. That’s where I come in. Typically on short notice the partner on the case will decide that they have better things to do (read: golf) and will send me to cover a deposition regarding a matter that I know nothing about. As the diligent employee I am, I went off fat, dumb and happy without knowing much of the details about the case.
Like really, I knew next to nothing about the client. All I was told was to (1) go to a doctor’s deposition, (2) stay awake and (3) ask a few questions about causation without it blowing it up my face. I didn’t even have the client’s medical records to help me ask questions because my partner
was skirting the line between cheap ass and malpractice believed that this case was worth, at most, five thousand dollars and, thus, he hadn’t subpoenaed the records.
Into the deposition I go and thankfully, this was the defense counsel’s deposition and so they got to ask questions first. I listen intently, I take copious notes, I have issues understanding the medical terminology being discussed and finally, it’s my turn to ask questions.
Doctor, my name is Namby and I represent the Plaintiff in this case. My learned colleague here has asked you a lot of questions about my client and I just have a few followups that I would like you to clarify for me. My one caveat is that I am not a doctor so I am going to need you to talk to me like I am an abject moron using small words without too many syllables. Do you think you can do that for me?
Just like that, I was off and running. For whatever reason (maybe it was my plea for plain speak), the doctor transformed into someone that sounded (a) human and (b) like he spoke English while he was making my case for me.
The deposition ended and defense counsel and I walked out of the room together discussing life, liberty and the pursuit of a settlement. “That deposition went really well for you. I think you should send me a settlement demand immediately.” Upon returning to the office, I relay to the powers that be how well the deposition went and the message from defense counsel. Understandably, the partners are shocked and giddy as schoolgirls. Even more so when several weeks later the case settled.
Remember when I said that the partner thought this case was worth, at most, five thousand dollars? It settled for almost 100 times that amount.
Preparing a client for his or her deposition is typically a simple task. You go through the facts of the case, you go through the damages of the case, you find out if there is anything in the client’s past that you don’t know about that will hurt you, you tell them not to lie and finally you tell them not to screw up. In simple cases, you are in and out in an hour and the client will give a rocking deposition. This preparation process, however, does not hold true for expert witnesses.
The subtitle of the this post could be called “I hate smart people.”
A short while ago, I prepared one of my experts to give his deposition. It was like pulling teeth, but worse, as I had to pay this man for the time that I spent
beating his gray matter out of his nose molding his answers to prevent my opponent from twisting his words into something that would be used to hurt me and my client. Seriously. You would think that someone that is the legal world’s version of “the oldest profession” would do exactly what I say. Not so much.
Me: Dr. Smith, what is your opinion on causation?
Witness: Well, you see, the thing you have to understand is that this is a special set of circumstances that one is not likely to find in a given day. The facts that this issue was discovered, by itself was a miracle and your client is very lucky to be alive today.
Me: I’m sure there was an answer to some question in what you just said, but there was no answer to my question anywhere in what you just said.
I ran this guy through a mock deposition and this is what it was like for every question that I had with this expert witness: always some qualification, quibbling, sarcasm, hesitation or obfuscation with every answer. Except for when I asked him his name and he was absolutely certain on that question. Witnesses that hesitate or appear less than 100% confident are how great cases implode on cross-examination.
Attorney: You just when your attorney asked you about causation that you “are sure that this accident caused the injury to the Plaintiff.” You remember saying that you are 100% sure that the accident caused the injury to the Plaintiff?
Witness: Well, no, I didn’t say that, what I actually…
Attorney: You’re not 100% sure that the accident caused this injury.
Witness: You see, in science, there are no certainties…
Attorney: Maybe you misunderstood my question, you are not 100% certain that this accident caused this injury.
Witness: Um. Uhh. No.
That’s a crude example of what will happen to an expert that is unwilling to say something happen ‘for sure’ but exactly what an effective cross examiner will get the witness to say. As a lawyer, it is my job to break the expert away from his love of science and be able to communicate to the stupid lawyer in the room in language that he cannot twist around to bolster his own case. This process is like teaching a foreigner how to speak English only worse, because the student doesn’t want to be taught.
Which leads me back to my original premise: can I just waterboard them until they are compliant witnesses? No? Damn.