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Washington Lawyer

Legal Spectator: Advice to a Lawyer 80 Years Old (or Older) Who Wishes to Try a Civil Jury Case

From Washington Lawyer, July/August 2007

By Jacob A. Stein

Legal Spectator

When you are 80 (or older), your so-called reputation, whatever it was, has come and gone. Winning or losing has nothing to do with your future. You are free at last.

What if you are consulted by a client who believes even a moderately competent lawyer can use Westlaw and LexisNexis to find the law. What if the client believes even a $160,000 first-year associate can do it? Well that is just the client you have been waiting for. It is a client who wants a seasoned lawyer with mature judgment based on years of experience dealing with human imperfection. Here is Aldous Huxley’s apt definition of experience:

Experience is not a matter of having actually swum the Hellespont, or danced with the dervishes, or slept in a doss-house. It is a matter of sensibility and intuition, of seeing and hearing the significant things, of paying attention at the right moments, of understanding and co–ordinating. Experience is not what happens to a man; it is what a man does with what happens to him.

When you are in court for that client, you will find you are 40 years older than the judge. You must dispel the impression you wandered into the courtroom by mistake. You must establish in the judge’s mind that you have your wits about you. You do so by reciting your client’s name and dates and times relevant to the case, without using a cue card.

Next, you follow the Judge Alexander Holtzoff principle. He knew all the law, including the footnotes. He was at his best (or worst) in motions court. A lawyer who commenced his presentation with a disconnected ramble of facts and law was quickly interrupted by the judge:

Stop. Tell me, please, what is your application? You must want something or you would not be here. Tell me what you want me to do or let me get to the next case.

The judge terrified young lawyers who were afraid that if the lawyer told the judge what he wanted, the judge would cite an obscure case interpreting a federal rule and then the judge would ask for comment. When you are 80 (or over) you can be reckless. You can tell the judge precisely what you want the court to do.

Brush up on legal terminology. Refresh your knowledge by looking up the words in Black’s Law Dictionary. The definitions you carry around in your mind probably have drifted away from the precise meaning.

You also might try memorizing Federal Rules of Evidence, Rule 401 and Rule 403. Rule 401 lets the evidence in, and Rule 403 keeps the evidence out. In other words, the judge controls the trial.

Jury trials begin when the jury panel enters the courtroom. The lawyers look at the jurors as the jurors glance around at the lawyers, the courtroom, the judge, and the parties.

The judge excuses those who give a good reason why they cannot serve. The lawyers are then given a few minutes to exercise their peremptory challenges. This gives the lawyers an opportunity to get a jury that is unbiased, meaning a jury predisposed to see the case the way the lawyer sees it. Age is the advantage in deciding which jurors to strike. The more people you have seen and evaluated, the better your judgment is in determining who will be comfortable with you and with your client and your client’s story.

During my most recent trial, I realized I was participant as well as spectator, reflecting on the fact that skill, intelligence, and memory are transient things. I learned again that we have trouble communicating with each other. The trial transcript is filled with repetition, pauses, misunderstandings, wastes of time, and a confusion of the issues.

Each event in the trial reminded me of something that happened years ago. The courtroom itself was filled with ghosts. Bill Bryant (later Judge Bryant) stood right over there when he was trying the Clifton murder case. Mason Welch was in this courtroom when he was making all the law (for the defendant) in the early medical malpractice cases.

The trial judge discouraged frivolous objections by ruling quickly. When a real evidentiary issue arose, the judge restated the applicable rule better than the lawyer who made the objection. This moved things along. The judge never made the mistake of saying “Does anyone else have anything to say?”

The trial had the usual components: opening statements, witnesses, motions, and settling-on-the-jury instructions. Then, closing arguments. A good closing combines emotion and logical induction. There will be jurors who are romanticists and there will be jurors who are born accountants. They are suspicious of sentences beginning with the words “roughly speaking.” The accountants take charge of the jury deliberations when the romanticists want to call it quits.

Each lawyer tells himself or herself the closing was great. Perhaps it was, perhaps not. No matter how great it was, the jury did not stand up and cheer.

The judge concludes the court’s instructions by telling the jurors to elect a foreperson and commence deliberations. Thereafter the lawyers stand by in a state of controlled high anxiety.

As the hours pass, I wonder why they are taking so long after that great closing? These thoughts are interrupted when the clerk says the jury has a note. Excuse me, I must get back in the courtroom.

Jacob A. Stein can be reached by e-mail at jstein@steinmitchell.com.