The only real lawyers are trial lawyers, and trial lawyers try cases to juries.
- Clarence Darrow
A Judge wrote:
As a circuit judge, I am interested in your opinions. As a lawyer, I liked to know whether I was going to trial. The purpose is to know if the case is ready or not. That way the lawyers don't have to prepare unnecessarily and the judge can plan his week. However, lately I have lawyers announcing they are ready only to change their minds when called.
Trials. On any given day there must be 250 lawyers in the REGJB. Probably a bare ten percent are qualified to handle a jury trial. What do we mean by that?
A lawyer qualified to handle a jury trial has been involved in dozens and dozens of jury trials while working as a prosecutor or public defender. They have made horrible mistakes and learned from them. They have seen other lawyers ask brilliant questions during voire dire, and incorporated those questions in their own voire dire. They have confronted the same situations over and over again until one day, as they are examining a witness, the witness does something un-expected, and suddenly the lawyer remembers when the exact same thing occurred a few years ago, and they remember how it played out in that trial, and they adjust their strategy in the current trial accordingly, all the while acting as if this was entirely expected.
The German’s have a word for this: Fingerspitzengeful- an instinctive sense and understanding.
In summary, a qualified trial lawyer has experience, which combined with solid preparation, trumps talent every time.
In cross-examination, as in fishing, nothing is more ungainly than a fisherman pulled into the water by his catch.
- Louis Nizer
You can be the best cross examiner there is, but if you haven’t been to the crime scene and know that the street is a narrow unlit street so the witness could not have seen what they say they did, and if you do not have the perfect picture ready to impeach them, then no matter how good you are at cross, the witness will eat your lunch.
A few weeks ago we engaged in a private email exchange with lawyer who claimed be very experienced former prosecutor, although we do no know who he is. His basic view was he had tried cases when he was a prosecutor and now was the time for him to just get as a good as deal as possible and then move on to the next case.
This is not a philosophy of law we adhere to.
On the other hand, trials can be zero sum games- you win – your client goes home, you lose, your client may not go home, perhaps ever again.
The answer then to the anonymous Judge’s observation that lawyers change their mind after announcing ready for trial, is that the decision to go to trial is a complex calculation with a myriad of influences that can affect the decision, even when the issue already appears decided. Money, risk, possible penalty, the health of a spouse, the confidence in the lawyer, the lawyer’s confidence in themselves, the Judge assigned to the case, the offer prior to trial, the experience and ability of the prosecutor, and a hundred other unnamed factors all influence the decision to go to trial.
So for those of us that announce ready for trial and actually go to trial (prosecutor and defense attorney alike) there is that final, awful, moment of judgment.
The work is done.
The decision is now out of your hands.
Then there is that knock on the door, followed by those awful moments of waiting.
The jury walks in, and you can hear your heat beating as the foreperson rustles the verdict forms while handing them to the bailiff.
The bailiff takes them to the Judge, and inside you are screaming “just get it over with already.”
Now the Judge knows and so does the clerk as they clear their voice and begin to read:
“In the Circuit court of the eleventh judicial circuit, in and for Dade County. Count one. We the jury on this the 5th Day of October 2006, find the defendant……………”
The urging of that word 'judgment' hath bred a kind of remorse in me.
- William Shakespeare,
The Tragedy of King Richard the Third
I love trials. I just hate the verdicts. They take too much out of me either way they go.
See You In Court.
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