Courtroom debuts: trial by fire.
Perhaps that's what you said to yourself after your first trial or maybe after a particularly difficult time early in your legal career. Just about everyone has a story to tell, so TRIAL asked seven courtroom veterans to put their memories on the record.
We hope you'll laugh, smile knowingly, and even learn something from these accounts. Or perhaps you'll simply breathe a sigh of relief that these events happened to someone else instead of you. One truth should be evident from these stories: Sometimes you just have to pick yourself up and get on with it.
The Lawyer and
Her Slip Opinion
Walking toward the courthouse, I knew I looked my best. My wardrobe selection that morning followed every rule set out in the book Dress for Success. For once in my life, it wasn't even a bad hair day. I was confident that my appearance would have a positive impact on the jury. I looked professional and credible.
The weather was cold and icy, fairly typical for a winter day in Chicago. I had thought about wearing boots, but I was afraid one of the jurors would see me in the parking lot looking like Nanook of the North. I opted for fashion over utility, all the while hearing my mother's voice from an earlier time chastising me.
Carrying two large trial-size brief-cases, I was loaded with weapons for the upcoming day. I focused on my opening statement. I rehearsed exactly what I would say to the jury, visualizing myself moving about the courtroom with confidence and assurance. This was going to be the greatest day of my new career as a trial lawyer. Maybe the greatest day of my life.
As I maneuvered through the slippery parking lot on my two-inch heels, I found myself wishing that I worked for a large law firm so a clerk could carry my briefcases. It was difficult to maintain my balance on the concrete while lugging 100 pounds of trial materials. I fantasized about the many helpers I could afford to hire once the verdict was rendered in the case I was about to try.
Before I knew what happened, my feet slid out from under me, and I fell forward on a nasty patch of ice. Both trial briefcases went flying, and I landed smack-dab on one of my knees.
Praying that neither a juror nor my opposing counsel was anywhere in sight, I picked myself up off the concrete. I breathed a sigh of relief that my body was intact and retrieved my trial materials. As I continued toward the courthouse, I felt a warm, burning sensation on my knee. I looked down, mortified by a stream of blood running down my leg. The ruby rivulet was offset by a very large hole in my nylons.
I made it to the courtroom after being stopped by at least five snickering deputy sheriffs who knew me. While trying to keep a straight face, each offered to take me to the public health office, which had a nurse on staff. I thanked them for their concern in the most dignified voice I could muster, all the while cursing them under my breath for their utter lack of sympathy.
I knew that, at a minimum, I was going to have to buy new nylons before the jury entered the box. I immediately advised the judge's clerk what had happened. She took me back to see the judge.
"Your Honor, I had a little accident in the parking lot. I am going to need to run to the store."
"Young lady," the liberated jurist addressed me, "I have no intention of keeping this jury waiting while you attend to your personal hygiene."
I showed him my bloody knee. "I fell in the parking lot, Judge."
"I'm not concerned with your personal problems. We are ready to start a trial here."
"But, Your Honor, you can hardly expect me to start a trial with blood running down my leg."
He peered at my knee over his glasses. "You have 10 minutes to get yourself together again. If you're not back by then, we'll start the trial without you."
"Judge, there is no way that I can leave the building, buy new nylons, clean up this mess, and get back to this courtroom in just 10 minutes."
"Fine, you have 20 minutes, but rest assured that I will not tolerate even one additional second of delay."
I gritted my teeth and thanked him for his understanding. I saw my male opponent chuckling as I left the courtroom and raced out of the building. I wondered if his response would have been so flippant had he broken the zipper on his fly that morning.
Unfortunately, the courthouse was located in the suburban district in a neighborhood that was anything but upscale. The only retailer nearby was a discount gas station. I prayed it would contain the solution to my dilemma.
Imagine my delight when I saw the rack of nylons just to the left of the cash register. I hurried over to make my selection, but became immediately deflated by the discovery that the rack contained only queen-size panty hose in a variety of horrible colors. I managed to locate a pair in solid black.
I knew I had no choice, so I made my purchase and returned to the courthouse. This time, I stopped in the public health office, hoping to obtain a bandage and some antiseptic, only to have some hostile county bureaucrat pontificate on the distinction between a Public health office and an emergency clinic, announcing that the office was not there to dispense supplies to private attorneys. I had no time to argue.
I went to the ladies' room to change. By now, the blood had dried over the torn nylons, and a soft scab had begun to form. I cleaned the area as best as I could with a paper towel and started to remove my badly torn stockings. As soon as I got to the knee area, I realized that the blood had dried like Super Glue, adhering my stocking to my knee. I winced and ripped the panty hose off
The flow of blood started all over again and, with it, came the flow of tears, which of course made my mascara run. This was quickly becoming an unmitigated disaster.
My 20 minutes had long expired. The judge's clerk was now looking for me to tell me the court was losing its patience. I put on the black queen-size panty hose, praying I would get through the day. They were ugly, but at least they would hide the blood.
The hose were so huge I had difficulty keeping them on my hips. I could have fit two legs in the space provided for one. I remembered my days of Catholic education when short skirts were taboo on school property, but we wore them anyway. I rolled the panty hose at the top.
I made it to the courtroom as the judge took the bench, scowling at me for delaying his trial.
"Your Honor, may I approach the bench?"
"Young lady, unless you are about to tell me that you are dismissing this case, I have no time to listen. Any pre-trial matters you wish to discuss should have been brought up before. Bailiff, bring in the jury."
I vowed at that moment to lobby for the appointment and election of more women judges. I now knew that part of my punishment for holding up the show would consist of the judge addressing me as "young lady" for the rest of the trial, while my male opponent was respectfully referred to as "counsel."
The jurors took the box, and I took my seat as the court made preliminary statements to the jury. Following the court's discourse, I rose to address the jurors, only to discover that the panty hose were sagging badly. By this time, I could barely remember my opening statement. The only picture that kept running through my mind was that I looked like a complete imbecile in front of the jury.
All the lessons I had learned about being natural in front of the jury were worthless. It is impossible to move comfortably when your panty hose are three sizes too large. I couldn't persuade the jury. I was too busy trying to figure out how to gracefully like up my hose.
"Ladies and gentlemen of the jury," I stood before them speaking the words I had practiced the night before, concerned not with what they thought about my client's case, but with what they thought about me and my hose bagging at the knees and ankles. Every time I moved to emphasize a point, the sagging and bagging became more apparent. I tried to get dose to the jury box, hoping that the box would hide my predicament from the jurors.
"Young lady," I heard. "You were cautioned before this trial began about standing too close to the jury box. Please conduct yourself appropriately in this courtroom."
I desperately concluded that the best possible tactic would be to stand in one place, looking uncomfortable and overly formal, but at least minimizing the effects of gravity on the nylon material that was gathering noticeably about my ankles. Presumably, this would also eliminate any future opportunity for the judge to humiliate me again in front of the jury.
Dejected, I finished my opening statement. I knew that, for all practical purposes, the trial was over. I had lost.
In retrospect, I blame neither the judge nor the panty hose for that verdict. The problem was in my head, in my inability to overcome the shame of my appearance. But, just in case, I have never again left my house for a trial without an extra pair of nylons.
Lessons from an Opponent
I finished my closing and sat down. The case was terribly sad. My clients' baby had died in the mother's arms. Relieved that I made it through final argument without losing control of my emotions, I sat ready to listen to my seasoned opponent so I could make a quick outline of my rebuttal.
I was prepared for the defense's arguments, but I wasn't prepared for what happened next.
Opposing counsel, his face red and angry, stood in front of the counsel table and pointed at me. "I knew the moment I learned who was on this case," he bellowed, "that this is exactly what we'd have - an emotional outburst!" He shook his finger at me as though I were a naughty child. Emotions flooded over me, and my mind started racing as he exploded.
The panic I had initially felt from his accusation was quickly replaced with outrage at being unjustly charged. What did he mean about who was on this case"? I was a lawyer. He didn't know me. He'd barely met me! Was he referring to my gender? And who was making the "emotional outburst"? Certainly the case contained emotion, but he was the one who was yelling.
Years before, I had interned at a firm where an associate told me it was all right to attack opposing counsel's case, but it was never all right to attack opposing counsel. Though I filed that rule away with countless others, I'm not sure I believed this advice. If trial is a battle, how successful would I be if I cared about my opponent?
Now the wisdom of those words sank in. It is wrong to attack people because their work places them at odds with you. It is not effective advocacy to engage in personal sniping. Conduct like that is embarrassing to all of us. What must jurors think of a profession whose members treat each other with this degree of contempt? I was learning firsthand how important it is to adhere to the rule, "Nothing personal."
But my schooling was far from over. The case ended, and my clients and I were fairly pleased with the resulting verdict. They went on math their lives as well as they could, and I turned my attention to other cases. But I didn't let go of the anger and resentment that I felt toward that lawyer for his personal attack. As far as I was concerned, we were mortal enemies.
A year or so passed. I walked into a social function at a bar convention and saw my nemesis across the room. I probably would have looked away and headed in another direction, but he saw me before I had the chance. To my surprise, his face lit up, and he started waving. He interrupted the conversation he was in, laughed, and called to me as if I were his best friend.
"Come on over here," the attorney commanded. "There's someone I wan you to meet."
He introduced me to his wife, beaming as he explained that I was the young lawyer he had told her so much about. Then he insisted that I meet his friends and former roommates from law school days. Each time, he introduced me with great pleasure and pride. He could not have been friendlier. I was completely dumbfounded.
It was time to examine my own behavior. I had been quick to chastise him in my own mind for making personal attacks in the courtroom, but I had harbored personal animosity toward him ever since. Although I had been carrying around that heavy and worthless load, he obviously had not been similarly burdened.
Every lawsuit involves an opponent. I realized that if I transformed all my opponents into personal enemies, I could look forward to a lot of conflict. Trial practice is stressful enough as it is - and life is too short.
In the end, I learned another lesson from this trial veteran - this time from the good example he set. Give your all to a case, but walk away once it's over. Don't kill the messenger. No matter how hot things may get in the course of battle, in the end, it's all in a day's work. Nothing personal.
The lawyer, the Ego, and
the Tape Measure
My first trial marked the third time I had ever been in a courtroom - and only the second time as a lawyer. I'd had my fill of examining abstracts for $450 a month at my first job in the legal profession, and I was lucky enough to sign up with the famous litigator Perry Nichols.
When Perry hired somebody to be a trial lawyer, he wanted the person to try cases. Not long after I was at the firm, my boss," Billy Gaither, wanted me to help him on a small personal injury case. I would pick the jury and put the doctor and the investigating officer on the stand. Billy would do the arguments and handle the client and Mayflower Van Lines, the only defendant.
As I say, it was a small case. Mayflower had offered a small settlement just before trial started, but we had turned the offer down. I was struggling with a voir dire question when defense counsel voiced an objection. I tamed around for help from Billy only to find the counsel table empty. I was on my own. The "small" case suddenly loomed very big in my eyes.
From an attorney's point of view, it's easy to understand why Billy was anxious to make an early departure from the courtroom. The case involved a client with soft tissue injuries that might have been caused by any one of several accidents. And there was only one named defendant.
My client, a young homemaker named Terry, had been sitting in her car waiting for a traffic fight to turn green when she was hit by another car. Little damage occurred to the uninsured junk heap that struck her.
A police officer arrived on the scene and had Terry pull to the curb and park while the investigation was completed. While sitting there, Terry's car was "grazed" by a Mayflower Van Lines tractor-trailer that was "creeping" past the accident scene. After these events, Terry had a whiplash injury that left her with nearly $200 in medical bills.
Before trial, Terry's medical problems became more complex as she was involved m two additional accidents - both with uninsured drivers. One of those accidents - a collision with a loaded dump truck - sent her to the hospital.
Mayflower Van Lines was in no mood to settle this case. In fact, the company had withdrawn its first settlement offer not long after Billy abandoned me in court.
I was frustrated, and Terry was discouraged. The defense lawyer - whom all the local lawyers called Kit Carson - didn't seem too worried. During every break, he sat reading a dime western novel, while I pored over every piece of paper in the file, hoping to find some previously hidden gem that would get me out of this predicament without severe embarrassment.
I still remember every minute of that two-day trial. From where I stood, the tide turned when the expert witness, a physician, insisted on cross-examination that he could not determine which of the four "impacts" had caused Terry's sore neck. Unknown to me at the time, the true turning point in the case came during my cross-examination of the defendant's damage appraiser.
The appraiser stated that, in his opinion, the damage to the rear of Terry's car by the uninsured junk heap amounted to $375; the scrape by the defendant's van caused, at most, $50 in damage. I couldn't think of a thing to ask on cross, so I tried to find something to which he would answer, "I don't know." No luck. He even had an exact measurement for everything, including the height from the road to the mark on the car where the van's bumper had "barely touched" the plaintiff's car.
Florida law, then and now, required the jury to apportion damages when caused by more than one incident, "but if you cannot apportion," then all the damages could be assessed against the only defendant in court. To save money, Mayflower had not sought a defendant's medical examination. Therefore, the only medical information on the record was the doctor's testimony that he "couldn't apportion" the damages.
My rebuttal argument seemed brilliant: "Doctor Jones can't apportion the damages, so don't listen to the defense lawyer play `doctor.'" I was sure that the resulting verdict - we easily beat the withdrawn settlement offer - could only be attributed to my dazzling oratory.
The lawyers back at the firm thought I was a hero. I had told them only the result, not how I got it. I wasn't really sure myself. The verdict was upheld on appeal.
That would be the end of the story but for a chance meeting with one of the jurors almost a year later. By that time, I thought I was an old hand at this trial business, and I possessed a full-grown ego. I relished the opportunity to hear the juror talk about my great trial skills. I asked, "What made the difference?" I was hoping to hear some flattering words that I could pass on to my friends.
"Mr. Wagner," he hurriedly replied. "We just thought that the defendant ought to be punished for lying." Confused, I inquired, "How so?" The explanation that I received, and the way that I felt upon hearing it, remain with me to this day.
The juror explained that at the end of the first day, one of the other jurors had found a Mayflower van, pretty much like the one in the case," near his home and had measured the Weight of the bumper. It didn't match the measurement that had been given by the defendant's appraiser.
"We decided that any defense lawyer who would put on a witness to he about that type of thing probably had a lot of other stuff he was lying about. So we lowered the boom on Mayflower."
My first trial was a blessing. It came at a time when my self-confidence needed all the help it could get while I made the transition from office lawyer to trial lawyer. It helped me believe that I could really be a trial lawyer, a belief that is so important when first attempting to master a difficult skill.
At the same time, the vivid memory of the real reason for my success has more than once helped me keep a more balanced perspective on my role in trial as a representative of my clients' interests - a perspective that every lawyer must struggle to maintain.
Greek to All
"Don't worry, Rod, only an idiot could lose this case."
Those were the words of consolation that I heard as I hustled out of the office en route to my very first trial. The sage assurance came from the law firm partner who was in charge of the case that I was about to try. I arrived at the courthouse to begin the case, which involved complex Uniform Commercial Code (UCC) issues.
Once in the courtroom, I was greeted by an elderly judge who promptly informed me that the UCC had not been around when he went to law school, and if I expected him to rule intelligently I'd better "paint by the numbers" in this case.
We all know that the wisdom of a senior partner should never be doubted. As the partner predicted, I did win the case, but not without suffering a little trauma first.
Not only did I have to translate the provisions of the complicated code into plain language for the judge's benefit, but an interpreter had to translate the court proceedings for the defendants, who were from Greece. In the end, the case was Greek for the judge and the defendants.
`Silence of the Lamb'
Young lawyers have a great deal of fear when they try their first case before a jury. I was no exception.
At my debut, my anxiety spiked when the first juror stood up to state his name and address. At that moment, I realized that as a Yankee having just been admitted to the bar in South Georgia - not Georgia but South Georgia, where there are more pine trees than people - I had no earthly way of understanding what this aged farmer was saying. It was as if he were speaking in Martian and I was wearing a sound-dulling space helmet.
Three more prospective jurors stood up, one right after the other, each speaking the same dialect. But my panic had subsided when I realized that I would simply need an interpreter.
Thankfully, an experienced attorney who was there to observe me was sitting in the back of the courtroom. When he realized that I was not taking notes, he came to the counsel table. After I explained that I had yet to understand the jurors' dialect, he did his best to translate, assisting me in striking a jury.
Once voir dire was over, I almost started feeling comfortable. Then my fear peaked on par with my newly elevated blood pressure when it hit me that if I couldn't understand the potential jurors, they probably couldn't understand me.
They had responded with nods and quizzical looks to the few voir dire questions I had mumbled to them. That inescapable fact led me to deduce that they were as confused by my speech as I was by theirs.
Since opening statements were to be given after lunch, I spent that hour trying to slow down my speech while sprinkling a few "you all's" into my sentences. When I realized that this was hardly a substitute for speaking the mother tongue, I creted a chart so I could illustrate my client's damages in my opening statement.
After the fiasco of voir dire and my halting opening statement, the experienced attorney decided that the wise course (related to legal malpractice) was to back-seat me. What I mean by "backseat" is that he literally sat in a chair directly behind mine - up close against the rail of the court - trying to look invisible while, at the same time, hoping that I would not do something to bring further dishonor on either of us.
As the defense lawyer for the insurance company cross-examined our first witness, my experienced "ack-seater" on no less than two occasions whispered that the lawyer was eliciting hearsay. On the first suggestion, I objected, saying the word "hearsay." "Sustained," said His Honor. Emboldened by the fact that a judge had actually found worthiness in something that I had said, the next time "hearsay" was whispered in my ear, I objected again. My second objection was overruled. I took the defeat personally, feeling almost as bad as I did the first time I asked a girl to dance in the seventh grade and she said "no" in front of all of my friends.
Chagrined as I was by this, I turned to my older colleague and explained that this particular hearsay was actually helping us. Therefore, I was glad that the judge had overruled the objection.
When the second witness came up, my heart had slowed to the point that I could actually hear my opponent's questions. He had previously made an inquiry that was going to elicit hearsay in his cross-examination of this witness, but clearly it was hearsay that was going to help my client. We had hoped to get the information in later through another witness. I confidently sat back in my chair, a bit smug with the knowledge that I would not be objecting to this line of questioning.
After die defense lawyer's second question, my helper lacked my chair and whispered, "Hearsay." I jumped to my feet, completely abandoning my theory of the case, and shouted, "Objection, hearsay." The judge immediately sustained the objection and admonished my opponent, ordering him not to get into that line of questioning in any way, which of course defeated my strategy.
As soon as I realized that I had hurt my client by reacting to these physical and auditory stimuli, I turned on my helper. Completely oblivious to the fact that I might lose the only job I'd been offered, I growled, "If you kick my chair again, I am going to stuff you in your briefcase."
I am a rather large, physical man. The experienced attorney, being older, slower, and smaller, apparently took the threat to heart. He closed his briefcase and stomped out of the courtroom.
I persevered. The night before my closing argument, I outlined what I wanted to say. Next, I faced the dilemma that all first-time jury trial lawyers must face: Should I disclose that this is my first trial in an effort to elicit sympathy and understanding from the jury?
Our experienced attorney had dearly suggested that this was indicated since "you only have one first trial." And my analysis of the case was that I was not winning on points going into dosing arguments. Still, my overactive pride forbade me from using this tactic.
My closing was the briefest of my career. It followed the time-honored pattern that all young lawyers unfortunately follow. I assumed that the jury had studied this case as I had for the past four months.
Not only was my dosing short and full of conclusions, but it was full of my own opinions. It wasn't that I didn't know a lawyer couldn't give a personal opinion. And it wasn't that I hadn't practiced a closing that was without any hint of my own views. It's just that when I got up there, I couldn't do it any other way.
I fumbled and bumbled so much that the opposing attorney was mercifully brief with his objections - undoubtedly afraid that he would alienate the jury by picking on a clearly incompetent and severely challenged young Yankee.
When I got to the part of the closing where I was to ask for damages, my mouth would not form the words "$35,000."
Now, "$35,000" does not seem very hard to say (now, it doesn't seem enough), but I was so sure that this was an outrageous sum for my client's injuries that I was embarrassed to say the words. I tried twice, and both times my mouth went so dry I could not form the words. Finally, I realized that everyone m the room was staring at me, with concern, as if I were having a seizure.
Falling back on the device that had saved me during my opening statement, I picked up a piece of chalk, went to the blackboard, and wrote $35,000. Then, I slowly walked back to the jury rail, the entire time trying to think of something to say.
Unfortunately, my feet were operating faster than my mind. By the time I reached the jury rail, nothing clever, intelligent, or witty had occurred to me. So I simply said, "Thank you," and sat down.
While the jury was out, a bailiff made me realize that deciding whether to disclose my lack of experience was something of a moot point. He asked me how many trials I had tried before. I said, "None." He responded that he and the other bailiffs had thought as much. Another ego-booster as I waited for my first verdict.
Years later, when die presiding judge at that trial introduced me at a lecture I was about to give, he recalled my courtroom debut and, with humor, delineated my shortcomings. One positive thing he said, which took me by surprise, was that I had used "silence" and "demonstrative evidence" in my opening and closing.
He attributed the fact that the jurors returned a verdict for my client to my astute silence. I am convinced to this day that they did so, not based on the persuasive nature of my closing, but out of sympathy for a client who had been saddled with an earnest but incompetent neophyte.
Cry Uncle! But Make Sure
You Meet Him First
One week after my admission to the bar, the senior partner called me into his corner office at 9 a.m. He was working on a Big Case, and, since I was the keeper of all his Little Cases, there happened to be a nice one for me on the Call of die list die next day.
"Not to worry," he said, "because this case is number 48 out of 49 on the trial list." He proceeded to tell me in less than 10 minutes everything I needed to know - or so we both thought.
The case involved a seven-year-old boy, Juan, who was struck by a car while crossing the street. This "pedestrian knockdown" left the plaintiff with a broken leg. My mentor, the Big Case lawyer, told me how much he thought the case was worth and gave me a target figure for settlement.
I was to secure this settlement by (a) going to the Call of the List at the county courthouse, (b) finding my adversary, and (c) negotiating. Easy - or so I thought. He handed me the case file - a half-inch-thick brown envelope - and sent me off with no further instruction except to say, "This file is in good shape." (I now recognize this action as "dumping on the young associate.")
What I didn't know then was how to begin. I didn't know about the practical problems of last-minute trial preparation, trial outlines, trial notebooks, or even model jury charges. So, I began where all young lawyers begin when confronted with a new legal dilemma, and that was the law library. I worked feverishly, shepardizing all reported cases under die West key number for "Negligence." By the end of the regular work day, I had created my own Restatement of Torts on my trusty yellow legal pad.
I then began to digest, page-by-page, the entire case file. It did seem to be in a logical order: a chronological one. As I set about this task, I thought everything I needed to know was m die brown envelope.
By 6 or 7 a.m. (yes, I stayed at die office overnight), I thought I was absolutely ready. Armed with two yellow legal pads - one detailing my legal research and the other, my file notes - I marched out of the office and drove home to ready myself for the dawn of a new era - my life as a trial lawyer. I then drove to the county seat, parked the car, and at precisely 0900 hours, trotted into "the county courthouse." The civil courts, however, were housed at the time in the Guarantee Trust Building, a six-story edifice.
There was no tenant or office directory inside the bank, and the security guard at the front door was armed - but not with information. Still, he was kind enough to direct me to a long line of people leading up to a caged bank teller. The teller told me that I could reach the sixth-floor "courtrooms" by going "around the back where the elevators are."
Finally making my way to the sixth floor - it was now 9:10 - I expected die courtroom would appear as the elevator doors opened. Not only did I not find a courtroom before me, but I could not find any navigational aides.
I rushed door-to-door, searching feverishly for the one that would take me to Valhalla - the Civil Call of the List. In my panic, I inadvertently and literally tripped into the assignment judge's chambers. Since I had entered His Holiness's office without formal trumpeting by his secretary, I was summarily dismissed by the Honorable One himself, who told me, "Get the hell out of here!" I then found myself opening the unlocked door to the grand jury room, where a county prosecutor essentially told me the same thing.
Finally I found a secretary behind a frosted-glass door who, in a rather unkind way, told me to "Get the hell out and get on down the road to the courtroom at die end of the hall." I now had directions. As I retreated from her temple of typing, she shouted in a sympathetic - for a cab driver -tone of voice, "Hey, y'er late y'know! We start at nine!"
I tried to squeeze through the leather-covered, brass-tacked door into a dimly lit, wood-paneled courtroom. The space was originally designed to accommodate 40 adults comfortably, but it now contained 100 matched pairs of lawyers, standing shoulder-to-shoulder behind the trial court's wooden bar.
Packing myself in with the other well-educated sardines, I discerned that the court had just finished calling the civil list because, when the judge read the name of my case, he added, ". . . for those of you who were not here at nine o'clock."
With tensions running as high as they were for me, I could not coax any sound from my voice box, save a shrill "Yoo hoo!" No one knew me. Yet, these men with whom I had not yet bonded turned on me. All eyes were on me as they roared with laughter at my unintentional birdcall.
Quickly, I regained my composure and mustered my deepest, strongest, and most manty response, "Vesper! Here for the plaintiff! And I'm ready! "
I soon found my adversary was more ready. The other men of the county bar parted like the Red Sea, and my counterpart and I were summoned by the judge to appear in his chambers. Although my "little" case was at the bottom of the trial fist, it was the first case he wanted to "handle and dispose of" that day.
The judge did his Dracula-cape wave off the bench and disappeared through what looked to me to be a magic sliding door concealed in the wall. I tried to find the Charlie Chan secret button in the rosebud to open the sliding panel, but a revolver-toting sheriff chased me out of the courtroom and down the hall to the judge's private office.
In chambers, I found the judge less than interested in my personal predicament or the dawning of any era. Even though this was my first trial, he simply wanted to "move it." I learned quickly that "movement" in the judge's parlance meant to get the case "settled, tried, or dismissed forever."
My adversary had prepared a motion in limine for summary judgment to dismiss he case based on the law of contributory negligence then in effect. (If the jury found the plaintiff 1 percent negligent, there was no cause of action.) Being Italian, I thought he had made a motion in linguine. Although quite flustered, I felt personally challenged by a motion to dismiss my first case, so I asked the court if I could make one phone call. After all, even an arrested felony suspect gets that courtesy.
The judge granted my request but preferred that this task not be carried out on his personal phone, which I had already started to dial. His secretary gave me directions to a nearby pay phone, and I called die senior partner, who instructed me on the "last-minute" legal principles that I needed. To wit: A child under the age of seven years, which our client was at the time of his accident, could not be summarily found contributorily negligent since he was presumed incapable of being negligent.
I also found out from the Big that his first cousin, our office investigator, had taken a notarized statement from an eyewitness named "Uncle Martinez." I thrashed through the file, sprawled on the floor under the wall-mounted pay phone, and I found it.
This statement, purportedly written in die hand of the young plaintiff's Uncle Martinez, said the defendant's car had roared recklessly down the rural street at almost twice the posted speed limit of 30 mph in "total disregard of the safety" of Juan, the child, who had started to cross the street. The child, standing in the middle of the street, was looking at his uncle, who had just crossed the street himself and had turned to look back at his young nephew. (I later learned that the only original writing by Martinez was his signature.)
With Uncle Martinez's signed statement in hand and a feeling of invincibility, I marched up the stairs, stormed into the trial judge's chambers, and demanded the motion be denied due to my newly discovered witness. The defense tried to bar the testimony of Uncle Martinez. I noted although the uncle was not named in our answers to interrogatories, "Mr. Ramon Martinez" appeared at the bottom of the police report that was attached to the defendant's motion for summary judgment. I felt great as the judge ruled in my favor. "Let's get on with it!" I demanded. I was locked, loaded, and ready for bear.
Voir dire was my next adventure in advocacy. I later learned this phase of the case should be conducted with your client present and with some game plan in mind. I conducted my voir dire and opening in the worst possible manner. I was absolutely petrified.
For instance, I exhausted all of my peremptories in one fell swoop. In my opening statement - after my knees stopped rattling - I oversold my case. I screamed to the jurors - and everyone six stories below - that the defendant "tried to kill" my client and should be jailed as punishment.
After 18 objections and seven motions for mistrial, I finally got through my opening. The first row of jurors got back into their chairs, and I think I heard the judge utter a quiet, "Amen!"
The tall, handsome defense lawyer, paid hourly by the driver's insurance company, softly and calmly told the jurors that everything I had just screamed at them was not evidence. They had to listen carefully to the evidence from the old wooden witness chair in front of them, and they should use their own driving experiences as a commonsense reference. He had them nodding like puppets.
Then I was asked to "Call your first." Of course, I did not have any witness available. My client was waiting "on call" at home with Uncle Martinez.
I tried simply to read into the record the statement he signed in order to save the court's precious time and also to avoid more needless objections from the big defense guy from out of town. The trial judge got irritated with me. "Get your witnesses here in 15 minutes, before I find you in contempt!'
As the court recessed, I rushed to the pay phone once again, only to find that my mystic mainspring, the senior partner, and his first cousin were on their way to the aforementioned Big Case.
I rushed to my car, sped out of the city limits, and picked up my client, his mother, and my eyewitness. There, on a rural road, I got the shock of my life. Uncle Martinez, who was indeed the uncle of my young client, was himself only nine years old. Yes, our office investigator had taken a signed eyewitness account from a child.
I also found out from my eyewitness that he and his nephew Juan had been playing a popular local game of "chicken" in the street on the day of the accident. As the older boy explained on our long miserable ride back to court: Mat we do is, we, like, wait `til we see a car. And then we just try to beat the car across the street. I got across the street. But, man, Juan didn't beat no cars that day. That guy's car got Juan."
After learning my star witness was nine, I became a shaking, quaking bundle of nerves. My brain froze up. My eyeglasses fogged. Perspiration streamed from every pore. My pen had broken, and black ink had leaked down from my white shirt pocket like a mortal wound. I had all kinds of papers, including Uncle Martinez's signed statement, rolled up and sticking out of my pockets as I parked my car and walked up six flights of stairs back to court.
In the hallway outside the courtroom, I met the judge, who growled and told me to "talk to your adversary before we go back into court." In the library next to the judge's office, my suave, grayhaired adversary looked down at me (why don't defense lawyers ever sweat?) and asked if Uncle Martinez was present and whether he was prepared to testify about the accident.
I was honest. I answered affirmatively. At that point in my short and sweaty legal career, I received one of the greatest gifts of my adult life - and from a defense lawyer from a different area code. I got a reprieve, a save, a deus ex machina from ultimate disaster.
The insurance company had authorized him to offer my client an amount relatively close to my target settlement figure. I waived all attorney fees and costs at the "friendly hearing" conducted by the noticeably calmer judge.
When I returned to the office, I demanded that our investigator explain why he failed to mention that Martinez was nine years old. He said, "Tom, I knew it was your first trial. I didn't want you to get nervous! "
What I learned from that first case was the absolute wisdom behind the trial lawyer', the Boy Scouts', and the Coast Guard's motto: Be prepared! Never again did I attempt to try a case without knowing beforehand exactly what each witness would say and, more important, what each witness looked like. I never again handled a case without going to the scene of the incident with the client. I also never started to prepare a case the night before trial.
From that shaky first day, I worked for many years to develop a method to help my associates and staff prepare for trial. That effort became the New Jersey Institute of Continuing Legal Education and the ATLA Trial Notebook.
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|Author:||Vesper, Thomas J.|
|Date:||Jul 1, 1996|
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