June 2004

Random Thoughts from 20 Years on the Bench

by Judge David A. Nichols

As I step into my 20th year on the bench — likely my last — I offer the following perspective about lawyers and the court-room. If nothing else, judging gives one an unparalleled opportunity to observe that rare and wonderful species, the attorney-at-law in full flight: desperate and eager, floundering and eloquent, subservient and arrogant, unprepared and articulate, suave and awkward — in short, the whole gamut of personality and performance. People ask me often, "How do you sit there and keep your interest and attention day after day?" And the answer of course is: because the personalities change like a kaleidoscope, endlessly fascinating and absorbing, even when I get the "itchies" watching performances that seem ineffective.

Attorneys in trial have my utmost respect. In 20 years I have seldom seen an attorney not trying hard to do right by the client, putting in long hours, firmly committed to the chosen course. I have never witnessed an attorney being intentionally disrespectful to the court, and I think there is a genuine desire to hold the system in esteem. Obviously, however, I would not be writing this article if all were right with the world, but it is typically not for lack of effort that attorneys do not try cases effectively.

Sadly, we do not employ the British system of training litigators and creating specialists. With the exception of a usually optional trial-practice course in law school, in the United States new lawyers come into the practice legally allowed to remove a spleen, as it were, with no background other than the first two years of "medical school" — without clinical work, internship, or residency. Unless the new lawyer manages to tie in with a prosecutor, public defender, or big firm that has a litigation department, the lawyer is destined to run on instinct alone, jeopardizing the public and condemned to a "trial" and error approach that may never produce competent trial advocacy.

As a matter of fact, though we usually manage to muddle through most trial days and come to a passable result, I have found really good trial advocacy to be quite rare, even on the part of experienced trial lawyers. That comes not only from a failure to have had good practical teaching and good mentoring along the way, but also from an unwillingness on the part of most lawyers, especially experienced ones, to ask for help and feedback from each other and from the judges who have been hearing their cases, or to make an honest self-appraisal of their performances. Winning does not necessarily reflect good lawyering, just as losing does not necessarily reflect bad lawyering. Not taking advantage of helpful comments from a judge after a trial deprives the lawyer of some very valuable insights. But woe be it to the judge who offers unsolicited suggestions. Those are seldom well received, and most judges try it only once!

Another problem with the American system is that most lawyers do not get to trial very often. In Commonwealth countries, barristers do only trial work, just as a surgeon does only surgeries. In the United States, the barrister/solicitor distinction and separation of function have never caught on. Remarkably, we require a specialized training license to do almost everything in society from medicine to driving a truck to opening a beauty salon, not to mention ongoing training certifications once the original license is obtained. But in the crucial areas of litigation, no specialty license is required showing minimum competence. Pilots tell me that to fly an aircraft safely, a person needs a minimum number of flying hours each month. That lawyers seldom go to court is evident in their performances. Yet they are the pilots of our most serious social problems.

Since our society seems little inclined to change the present system, what then can lawyers do to improve their performance?

Take Control of the Courtroom
Though it has been correctly said that there is no one kind of personality that makes a good trial lawyer, I believe that a failure to grab and hold a judge's or jury's attention and keep it throughout the trial, or, conversely, to do things that rankle a judge or jury, contributes to a lack of success in court. The courtroom is no place for the shy, the diffident, or the halting. Lawyers routinely forget the importance of controlling the environment.

A partial checklist of undesirable, but frequently encountered, behaviors might go as follows: Attorneys let their voices drop; fail to project throughout the room; lose eye contact; lounge indiscriminately at counsel table or the bar; turn away from their key listeners; pace or fidget, and do distracting things when opposing counsel has the floor; leaf interminably through obscure notes, hunting, presumably, for some long-lost thought; are disorganized and fumble with exhibits; discuss exhibits with witnesses the fact-finder has no idea about; show they have not practiced using the overhead or some other equipment; scribble illegibly on the butcher paper; are rude or condescending to opposing counsel; mumble objections, or talk too fast and unintelligibly; use occasional bad language1; lack conviction in the presentation of the case; and have no real message to impart. This list is not composed of occasional isolated instances. These things occur with regularity, and almost every lawyer is guilty of one or more of them.

Judge and jury are mightily affected by all these activities, which detract from and undermine the core of the presentation. The courtroom is a stage, and the lawyers have the lead roles. As the great Broadway icon Ethel Merman once said, "I might not have the greatest voice, but the person in the last seat in the house is going to hear every word I sing!" Being articulate, brief, economical, absolutely on top of one's case, forthright, compelling, even spell-binding, are attributes every attorney who comes into court needs to cultivate, whether it be a simple motion or a four-week trial. The message must be clear from the outset, forcefully delivered, constantly reiterated, and creatively summed up. And, throughout, counsel must project his or her voice, so the fact-finder hears every word all the time.

Lawyers usually do an excellent job of amassing the details that support their cases. They take depositions, propound interrogatories, investigate and corroborate details, and ferret out witnesses. Often the courtroom looks like a check-in line at the airport as they pull in huge wheel-assisted luggage chock-full of files presumably crammed with all the useful material discovery has turned up. What they often fail to do is take all this detail (the novel, if you will) and turn it into a stage or screenplay — into a case that the trier of fact can digest in a short time. The trial should be a drama with a beginning, middle, and climax. The good trial lawyer learns that there is a vital distillation process, which reduces folders full of potential testimony down to a compelling drama that will hold and persuade a trier of fact. That is why the solicitor/barrister system is so good. The former does all the necessary legwork, while the latter concentrates solely on the courtroom presentation. For good trial advocacy, the lawyer must doff the solicitor hat before trial and don the barrister hat. Trial is no place for the faint of heart who do not enjoy the stage and the challenge of grabbing an audience and holding it enthralled, or the pedantic who cannot grasp the fundamental that more is usually not better. In the best of all worlds, the attorney should come to trial armed only with a thoughtfully crafted screenplay, not the novel!

We do it all backward, of course. After interviewing the client the first time, we should write the trial brief. We should thoroughly analyze the case, determine viable theories, research them, and decide from the beginning how the case would be presented to a judge or jury. Instead, lawyers mostly launch into often-exhaustive discovery investigations hoping theories and creative ways to present the evidence will eventually drop out of the ether.

It all comes back to taking control of the courtroom: a good legal theory, a strong direction, a nicely conceived drama, and competent acting once on the stage.

Always Be an Officer of the Court
Attorneys forget that outcomes are not what we are about so much as being caretakers of a system of justice that is as fair as humans can make it. One acute disappointment of my judicial tenure, no doubt from naivetι on my part, has been my coming to the realization that attorneys do not join the judge in a search for a correct result. Sometimes they are not loath to skirt the truth, misstate case law, and argue positions that only put the judge off. An attorney has no duty to make the other side's arguments, but when you concede the other side is right, when you decline to make spurious arguments, when you properly distinguish cases, and in general level with the judge, you create more goodwill than you can imagine. I have been immensely frustrated to find out later that a lawyer assumed I would see that some argument was made only for the benefit of the client and was never intended to be taken seriously. If you cannot make an argument in good faith, you should not make it, even if it means running counter to the wishes of the client.

Lawyers should afford the court and staff the utmost respect, not because some judge demands it, but because it is, after all, our system. The more an attorney demonstrates respect for the system and the court, the better the light that shines on that attorney. Specifically, I would urge that lawyers always stand when addressing the judge; that they never address opposing counsel in the presence of the court or argue between themselves; that they introduce out-of-town counsel who may not know the judge; that they treat opposing counsel, the staff, the judge, and the jury with respect and politeness; and that they never personalize the case either by making snide or demeaning references to the other side or by addressing the other side by the attorney's name. Frequently, attorneys will make references like "Mr. [Attorney] Smith is asking you to believe" or "Ms. [Attorney] Jones says," when what ought to be said is "The defendant argues," or "The State is trying to convince you." The case belongs to the clients. It is not a contest between lawyers. The British and Canadian systems use phrases like "my learned friend" or "my learned colleague" when they need to refer to the other lawyer. Referring to opposing counsel by name makes the case personal, which should never happen. And do not forget to use the time-honored phrase, which is fast becoming a lost art form, "May it please the court," before making an argument.

Always Dress Appropriately and Be Sure Your Clients Dress Appropriately
I have had criminal defendants show up in tank tops and cut-offs for a sentencing. People who do not respect the process are unlikely to get respect from the court. In this modern day, suits are not always necessary, and a client carpenter can certainly wear a nice shirt and trousers. Sheer blouses and too-short skirts for female lawyers, and ratty old sport coats and garish ties for male lawyers are inappropriate. For jury trials, suits worn by both men and women show respect for both court and jury. In my view, the courtroom is not the place to reflect society's informality. If the lawyer wants to be taken seriously, anything that tends to detract from the image of a working professional puts one more roadblock in the way of the fact-finder's coming out the way a lawyer hopes.

Try Your Case so that the Fact-Finder Can Best Learn the Material
Too many lawyers forget how judges and juries learn. Each judge and juror has a learning style. Some can learn by listening, which is the basic format of a trial or argument. Ironically, studies show that taking in data solely by listening is the least-effective way to learn something, and yet that is the predominant modality used in court. Listening is probably the worst way of conveying information, at least if is not accompanied by some kind of physical activity, such as writing notes, or looking at or touching exhibits. People are multisensory entities. The more the presentation engages more than the auditory sense, the greater understanding and retention there is. Lawyers often fail to use tools that will enhance comprehension and retention: the overhead, opaque projector, digital photography and imaging, copies of documents for the jury, demonstrative exhibits, and the like. Effective arguments to a judge on the motion calendar can be enhanced by an overhead or handout outlining the issues, a copy of the key document in the deed, or a statement of the relief sought. Remember who has to make the decisions in the case. More times than you might think, I have had to ask counsel for a copy of whatever is being discussed with the witness.

The old principle of KISS — Keep It Simple, Stupid — is still true today. More is not better. Fact-finders have limited attention spans. They need roadmaps, and they need to be drawn quickly into the world of the case. Good trial preparation involves winnowing out much material, deciding who the best witnesses are, considering alternative methods of proving a point, figuring out how the fact-finder can best learn the case, and having a compelling story to tell.

Prepare, Prepare, Prepare
Too many times counsel report for motions or trial ill-prepared to present the case. Cross-examination often consists of counsel leafing through notes to try and find questions, all of which should have been mapped out before. Counsel ask every question they can think of instead of just those they need to score points. They do not make copies of exhibits for court and counsel. They use depositions improperly to impeach. They are doing something else when an exhibit is offered and have to be prompted for a response. They don't know the rules of evidence, don't object when they should, and object when they should let it go. They fail to stipulate when the evidence is collateral or doesn't harm their case. They spend untold minutes looking for stuff in their materials. They call witnesses for irrelevant purposes or ask irrelevant questions of their witnesses. They fail to accord constant deference to opposing counsel by being reasonable — being gracious when scheduling problems occur; getting witness lists, expert reports, and motions in on time; or giving opposing counsel a heads-up if the game plan changes. I can report that juries are tremendously impressed when counsel work together as professionals, contesting the case hard, but always demonstrating that they respect each other.
 
Do Voir Dire Well
As I have written before, voir dire is consistently done badly, not only because it fails to elicit valuable information but chiefly because, as practiced by most lawyers, it is so dreadfully tedious. To this observer, the worst thing an attorney can do is bore the jury panel. If you cannot engage the venire in a lively discussion, cutting the voir dire short is probably the best strategy. Other than the commonsense dos and don'ts of good interviewing, e.g., open-ended questions rather than closed-ended questions, we do not have helpful research on the kinds of questions that will cause jurors to reveal their deep prejudices and tendencies. Jurors are simply not going to reveal their inner selves to strangers. The best the jury-selection gurus can do is come up with predictions based on stereotyping, and only some of that may be valid. So get your issues out before the panel, weed out the people who are too opinionated or talkative or obviously biased, and make it short.

Avoid the Use of "Affidavit of Prejudice"
Finally, let me decry the use of the "affidavit of prejudice" to facilitate judge shopping or avoid going to trial. Old-time lawyers never filed such affidavits unless there were true conflicts. Now attorneys file affidavits routinely, often based on the "book" made about a particular judge, based, I guess, on presumed biases. One attorney told me it would be malpractice to take a certain kind of case before a particular judge. I am not saying judges may not appear predictable based on their histories. I am saying the practice is demeaning, disrupts the flow of cases through the system, and is essentially useless. Attorneys should instead be concentrating on how to present their materials so that a particular judge can readily absorb them and line up behind the lawyer's theory. If a "book" is made on judges, that book should inform the bar as to how the respective judges of the county learn. If a judge seems to make decisions early on in the case, you had better get in a good trial brief ahead of time and put your best witnesses on first. If a judge tends to be a person who likes to see the "forest" and gets bogged down in the "trees," then you do not inundate that judge with detail, and your trial brief and opening statement should very carefully delineate the path you intend to follow. In my view, cases are not won or lost by guessing right on the judge, but by having a good understanding of how to persuade a particular judge to your point of view. That takes a lot of thought, flexibility, and inventiveness in your preparation.

Conclusion
So these are some of my observations over the years as I have watched a great number of practitioners bring their cases to court. I am a strong, strong supporter of lawyers, and very aware of the tough job they have. I hate to see them engage in activities and behaviors that detract from the noble purpose they have. I am not implying that all attorneys trying cases do everything I have mentioned, but my observations lead me to the conclusion that virtually all lawyers engage in some of the behaviors I list. Perhaps some of you who read this will find the observations helpful. Regardless, I applaud you all for the very significant and vital roles you play in the best justice system in the world. It has been a pleasure.

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Judge Nichols is a Whatcom County Superior Court Judge and past contributor to Bar News.

NOTES
1 Until the Queen herself uses these words, they are not appropriate in the courtroom: "pissed," "damn," "hell," or "screwed."

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