D.C. BAR 2020 CONFERENCE – DISCOVER MORE AT https://www.dcbarconference.org

Washington Lawyer

Legal Spectator: Lawyer Talk

From Washington Lawyer, September 2010

By Jacob A. Stein

spectatorCourtroom 12 at 9:30 on Wednesday morning. The judge is on the bench. Two lawyers are at counsel table, each with his client beside him. The case to be tried is a dispute over a commercial lease. The judge had thought the case would settle. She understood the parties were not far apart.

The judge tells the lawyers she must move the case along because she has a three-week jury trial starting Monday.

The courtroom door opens and the jury clerk enters, followed by a panel of 20 jurors. The clerk points to the front-row seats where the panel is to sit. The jury clerk gives the judge’s courtroom clerk a paper with the name, age, and occupation of each person on the panel. Copies are given to counsel.

The judge tells the jury panel that the case, in all likelihood, will be over by Friday. She glances at the lawyers who nod. It is a commercial case. The lawyers will give a short description of the case. A panel of eight will be selected for trial—six jurors and two alternates. The alternates will not know who they are. They will be released when the trial ends. The remaining six will go to the jury room and deliberate. The judge gives the lawyers 15 minutes to select eight jurors.

The jurors look at the lawyers and the clients. The lawyers and the clients look at the jurors. Drawn from a big city, the panel includes men and women, young and old. Some are dressed well and some are not. Some look interested and some do not.

What can you learn by just looking at a person? There once was a belief in physiognomy, the art of discovering temperament and character from outward appearance of facial features. There is always some research going on to demonstrate that there is such a relationship. We cannot entirely disregard this. Some people look mean and they are mean.

When the jurors are selected and seated in the jury box, the lawyers makes their opening statements, and the witnesses are called.

The judge adjourns the trial at 5 p.m. and asks the jurors to return at 9:30 Thursday morning, promptly.

The lawyers decide to get a cup of coffee together and consider the day’s proceedings. Each has a good practice. Neither needs to impress the other.

Harry: How do you like the judge?

Steve: She is pretty good in commercial cases. Her father owned real estate in Georgetown. She is upset that this case didn’t settle. I think she knows we are not far apart. My man did not like the way she questioned him about the cancellation of the lease.

Harry: Our clients want to preserve their reputations as being stubborn. They have made a lot of money being stubborn. Steve, did you know your client sued his own lawyer some years ago?

Steve: I was aware of that.

Harry: How much longer will your man be on direct?

Steve: We are about through. I think he did pretty well, everything considered. He likes to talk. He thinks he is a pretty good lawyer. How long is your cross?

Harry: I would say about a half-hour. The judge wants the case to be over by Friday, and I want to impress her with how quickly I can get to the point, whatever the point is.

Steve: Now that the clients have gone this far, and a jury has been picked and all that, they can tell their friends that the other one gave in.

Harry: I bet we get calls from them this evening about settlement. Here is my cell phone number. What case does the judge start on Monday?

Steve: It is the big architectural malpractice case. A couple of girders gave way and people were injured. One of the injured people came to see me, but he ended up with Joe Harris. I saw Joe the other day. He said he has nearly $100,000 invested in the case. He is having trouble getting a good metallurgist.

Harry: If we get client calls tonight about working something out, we must be careful about the releases. Last month when I thought they would settle, I had an associate draft one of those 20-page releases. Do you have a fax number at home? I will fax it to you.

Steve: I know the judge wants it settled. Maybe she could give them a push without indicating a preference.

Harry: If they decide to settle, we should have the release ready for signature. We can get it all done at the courthouse tomorrow morning.

Harry: Did you hear Fred Appleby died?

Steve: Yep, I did. I have known him a long time. The last time I saw him, he did not look too good. I wonder what will happen to his practice.

Harry: Do you think you are ever going to retire?

Steve: Retire? Retirement is an objective event. When nobody calls me, I’ve retired. By the way, did you notice the hair of Juror No. 4? It is jet black.

Harry: Yes, it is not a good dye job.

Steve: My client says I should have stricken that juror because, as you can probably see, my client has a pretty bad dye job himself.

Harry: How do you think it will affect the jury?

Steve: I have given up on it. I don’t predict what juries will do. At one time I thought I could because I had a run of good results, but not anymore.

Harry: Did you ever use one of those jury specialists, those people who tell you what type of juror you want? Someone who sits with you when there’s jury selection?

Steve: It’s all nonsense.

Harry: They should have to get a fortune teller’s license.

The lawyers sat together for a few more minutes and then got in their cars and drove home. The clients did call. The case settled. They split the difference.

Reach Jacob A. Stein at [email protected].