This will be the third time we have reprinted this post.
It is just as relevant today, with summer vacations approaching (see right #2) this is just as relevant today as it was twelve years ago. It's one of our favourite posts.
Originally posted January 1,
2006, but just as relevant today.
TRIAL LAWYERS' BILL OF RIGHTS.
The Trial Lawyer needs
protection from their biggest enemy.
The one entity that can with a
wave of the hand completely screw up years of hard work and preparation. We are
speaking of course of the Judiciary, some of whom are our wonderful Robed Readers.
Herewith [ and we strongly
invite submissions] is our Trial Lawyers Bill of Rights:
A TRIAL LAWYER SHALL HAVE THE
RIGHT
1) TO BE FREE FROM BEING
EMBARRASSED AND CHEWED OUT IN FRONT OF OUR CLIENT.
We know we say and do stupid
things from time to time. But Judges have chambers- and there’s sidebar. We
have enough troubles with our clients without having to deal with them after a
Judge has just dressed us down for something in court. [ Half the time the
judge is upset because we’re late. Well, usually we’re late because we just
spent 45 minutes doing an arraignment in front of the Governor's latest new
nominee to the bench. ]
2) TO AT LEAST ONE WEEK AFTER
RETURNING FROM VACATION BEFORE STARTING TRIAL.
This one really frosts our ass
a little bit. (Hat-tip to the late, great Neil Rogers on the frost-our-ass- phrase).
We have an important trial. And when the Judge suggests a date,
we tell the Judge we have an FACDL Ski trip for that week. So the Judge gives
us a big smile and tells us that sure, she’ll accommodate our vacation, “after
all , lawyers are entitled to a vacation as well.”
And then she sets the trial for the Monday after we return that Sunday.
Hey- wake up!
Do you know what’s involved in a
trial? Do you realize that no matter how well an attorney plans and prepares
that there are literally dozens of last minute problems that spring up in the weeks and days before a trial?
No. We
can’t fly across the country Sunday night, stagger home at 1:00 am and be fresh
as a daisy and ready to go to trial Monday morning dodging the multiple minimum mandatory sentences the prosecution is hurling at us.
If Judges don’t want us to believe
that the reason the majority of them became Judges is because they couldn’t try
a case, then show some common sense and give us at least a week when retuning
from a trip before trial. This may surprise some of you future Supreme Court
nominees, but other than the really successful or truly awful lawyers, the rest
of us have more cases than the one case clogging up your precious docket. We
have clients that want to see us, employees that need guidance and your equally
dense colleagues who want us to try a case in their division on the day we
return from vacation.
Sometimes, and we really mean this, we wonder how some of you
even got into law school.
3) THE RIGHT TO AS MUCH TIME AS WE NEED IN VOIR DIRE.
First of all, many lawyers who get stuck in a trial don’t try a
lot of cases and couldn’t conduct a good voir dire with Gerry Spence sitting
with them as second chair. So you needn’t worry about them taking too much
time. They ask a few moronic questions about which section of the Herald the
juror’s husband reads and if they will follow the law, and then they stagger back to their table sweating
bullets and grab their law school text on opening statements to see what to do
next. For the rest of us, the ones who devote time and energy to our craft, a
good voir dire is crucial. It is the most important part of the trial. We are
not asking you to give us a long leash. Keep the leash short. But as long as
we’re asking the right types of questions, then our clients (be it a defendant
or the people of the state of Florida) are getting their moneys worth from the
advocate they hired. Just leave us alone and let us do our job. Surprisingly,
when that happens, the Jury system works just fine.
You want a short voir dire? Get an appointment to the Federal
Bench.
4) THE RIGHT TO BEGIN AND END THE TRIAL AT A DECENT HOUR:
We see this with a lot of new Judges, especially in County
Court. Trying to establish some sort of macho reputation, they work until 11 PM
and then send the jury out at midnight to deliberate.
What are you people thinking?
Would you
want the most important day of your life in the hands of someone who has been
in the Justice Building since 8 AM? Do you really think jurors will make the "wise and legal decision" that the jury instructions tell you to tell jurors we are depending on them to make after they have been in the REGJB for 16
hours later? What is so difficult about coming back the next day?
The first step to being a good judge is giving everyone, including jurors, the time necessary to perform their part in the machinery of justice.
That’s a good start. We have cast our bread upon the waters.
Lets see what readers contribute.
2018 Edition: THE TRIAL TAX
It's not really a bill of rights issue, but have you (as a judge) ever considered the terrible price on our justice system a "trial tax" exacts? "What's a trial tax?" you say quizzically. For that .00000000001% of judges who don't know that the rest of your colleagues routinely impose stiffer sentences on a defendant who proceeds to trial and loses, a trial tax saps the life out of the justice system. And just as insidious as the trial tax, is that "innocent" little you speech you all give defendants before the trial begins in which you "innocently" inquire as to whether the defendant knows that the current probation offer could become forty years in prison if they lose. As if you all are shocked! Shocked to learn that a defendant who is told by a judge that if they lose they "could" receive a 40 year prison sentence (although you earnestly assure them you have not in any way made up your mind since you don't know the facts of the case) actually has a coercive effect on the defendant's decision to proceed to trial.
Really. Just stop the charade. You know the facts. And we all know what you are doing. And it stinks. You want to be a judge that subverts justice and threatens defendants? Go put on a robe in Broward. For the rest of you, totaling the maximum possible prison sentence does not a judge make. A five year old with a calculator could do that.
Ok. Now we feel a little better after that rant. Of course, it rarely applies to us, as we rarely lose.
