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Washington Lawyer

Legal Spectator: The Knock on the Door

From Washington Lawyer, June 2014

By Jacob A. Stein

Legal Spectator graphicThere are places where you can participate in a good conversation, and there are places where you can participate in a conversation that is not so good. Let’s start with one that is not so good. I found it in a little book titled An Essay on Conversation. It was written by Henry W. Taft and published in 1927. Mr. Taft was a prominent lawyer like his older brother, lawyer and President William Howard Taft. Although Henry W. Taft served with distinction as the Grand Master of the Wine and Food Society and as president of the New York City Bar Association, his contemporaries found him a bit stuffy. He was not a good conversationalist.[1]

Mr. Taft commences his essay in the grand tradition, mourning over the death of the gentle art of the times and places for good conversations. After the preliminaries, he says the best conversations were the ones heard at the old English dinner parties and in the famous French salons of the 18th century.

He says based on his personal experience, the conversation is good at a dinner party of six or eight people, people of breeding, the best people, the people with the common decency to be of fine parentage.

I regret that lawyers in court are where the conversation is not so good. The trial is over. The judge has given the instructions. The closing argument has been made, and the jury is in the jury room.

The lawyers and the clients have the courtroom to themselves. They wait for that deadly knock on the jury door with its note or its verdict.

As time passes, the lawyers drift away from their clients and converse between themselves, gently criticizing the judge.

Plaintiff’s lawyer (PL): Bill, have you been before this judge? I haven’t.

Defendant’s lawyer (DL): Yes, I have.

PL: What is her background?

DL: I recall she was a prosecutor.

PL: You know, I thought that.

DL: What made you think that?

PL: She ran this case with no waste of time. She let me put on only one expert.

DL: You are lucky you got one expert.

PL: She only gave 45 minutes for lunch.

DL: Listen, I could do without lunch.

PL: Well, she left on her big evidentiary ruling, I think it is appealable.

DL: I heard that three people left the Lincoln firm. What was the trouble?

PL: I heard some things but I really don’t know.

Then the lawyers talk about their cases. Vanity often sneaks into the conversation. Stories are told. The brilliant cross-examination. They ask each other about certain clients. One lawyer suggests that the attorney–client privilege prevents him from disclosing several big secrets he’s been keeping.

Each lawyer has his iPad. Each sends and receives e-mails and makes and receives phone calls. All this out in the corridor.

Off and on, a client wants to talk with his lawyer about the case. Did the main witness come off well? Is juror No. 3 on their side? How long will it be before a verdict? Should we have settled? If we lose, is there an appeal? Where is there a good place to eat?

Three hours later, the lawyers are told by one of the clerks that the foreman of the jury has a note. In a few minutes, the clerk enters the courtroom. She takes her seat below the bench. The court reporter enters the court. Then the judge takes the bench. “Remain seated. Counsel, the jury sent a note. The clerk has it. I shall ask the clerk to read it and then bring the jury back, and I will read the note to the jury.” The lawyers do their best to appear nonchalant. It’s very hard, though: The note may give an insight into what the verdict will be.

In a personal injury case, the note may say, “The jury would like the Judge to have the reporter read again the law on contributory negligence.” This is bad news for the plaintiff. In the District of Columbia, Maryland, and Virginia, if the jury finds that the plaintiff’s negligent conduct contributed to the accident, then the plaintiff loses despite the fact that the defendant’s negligence is much greater than the plaintiff’s. Contributory negligence is a harsh, archaic doctrine.

On the other hand, a note that says, “We would like to know how much the plaintiff sued for,” would be good news for the plaintiff. 

The judge tells the jury the part of the instruction that the jury has requested. The judge then tells the jury to return to the jury room and continue the deliberations.

Now there will be a real conversation by the lawyers concerning the prospect of a settlement. The lawyers leave the courtroom and, preliminarily, one says to the other, “We are here for a long time. What is your rock bottom number? I’ll call the home office. Let’s get out of here. The adjuster leaves at 5 p.m. It is 4:45 now. I think I can resolve this and we’ll get home before 6.”

Reach Jacob A. Stein at [email protected].

[1] Causes and Conflicts by George Martin, 1970, Houghton Mifflin Company.