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.


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