Friday, November 21, 2008

Level of Advocacy

I was in court recently in a Tennessee city that will not be named and I happened to watch a couple of lawyers trying cases. I was struck by the approach that they took. Basically, each stepped to the podium to question witnesses with a printed paper. The paper must have contained a set of questions they were going to ask.

Their entire examination of the witness consisted of them asking a question and then making a mark next to that question on their list. They never looked up from the list. Never looked to see what the witness's demeanor was. Never looked at the judge to see how he was reacting.

And, worse, even when the witness said something that I thought might have made an impact on their case, they never deviated from their pre-printed questions to explore the witness's answer. They just moved on to the next question.

While I was watching, I happened to recall a case from a couple of years ago in an Ohio court. I was watching because I had a passing interest in the case, having formerly represented one of the parties in a related matter. The attorney questioning the witness asked something about the meaning of a document. The witness gave her answer, then made the statement "Of course, that is just my spin on it." The attorney then just moved on to his next question, as if he never heard her.

My reaction at the time, when the witness made the "spin" comment was "Now, you've got her." What I would have done was immediately repeat what she said, then remind her that we weren't there to put spin on things, but to tell the truth. Then I would have gone back and revisited every question asked and every answer she gave that wasn't favorable to my case and asked her "Was that answer the truth or was it simply spin?" Most likely, she would say it was the truth, but I would ask "How do we know?"

And I would have kept doing that until the judge made me stop or it began to become annoying (which is why it's important to watch the judge and jury while you are questioning witnesses).

What all of this is building up to is wondering about the level of advocacy in the system today. Are most lawyers now reduced to just reading questions and making checkmarks? Are they teaching that in trial practice in law school?

I hope not. I hope that the examples that I have seen are just a few isolated incidents.


Tuesday, November 4, 2008

Killer October

October was a killer month at my little office. I had 27 court appearances during the month. Many of these were morning in one county, afternoon in another, making it nearly impossible for me to be at the office much at all.

Thankfully, we have the technology to sit in court while waiting for a case to get called and get work done. I have to say that Tennessee is lagging behind many states on such things as internet access in the courtrooms. Having internet access is crucial to such things as remote access of files. Without it you have to do what I basically did - load up the laptop and briefcase with the things you need to work on and then upload them back to the server when you get back to the office.

Tennessee had scheduled a pilot program for enabling technology in the courtroom - electronic filing being among the things they were looking at - but the administration canceled it. I hope that they re-evaluate. If it is just a money issue, perhaps that would be a good place to spend some of the surplus from the IOLTA accounts.

By the way, after the killer October, I took a week off to rest and recharge. Will be back in the office Thursday.