It is important to get law students out of the classroom and have them watch the real lives of trial lawyers. For my Comprehensive Trial Advocacy course, Seattle University law students attend a day in trial and report on what they observed. Consistently they praise this courthouse visit. It is satisfying to read the students’ reports and to learn how being in the courtroom can be such a rewarding learning experience for them. The following report is an example from this semester.
TO BE A TRIAL ATTORNEY
By Emily Schwab, Seattle University Law School Student & Law Clerk
I am a law clerk. I sent out an email to the attorneys in my office asking to tag along to any upcoming trials in late January. I was slated to go to a trial at the end of February. I had talked to the attorney and had even helped him set up his trial notebook. Three days before trial, it was continued for a fifth time because they could not find the plaintiff.
I decided to go to another trial down in Pierce County. Once again, I read up on the case and chatted with the attorney before the start day. I drove down to the courthouse and found the attorneys and clients waiting in the hallway outside of a courtroom. Apparently the judge was unavailable because the case before ours was expected to go on for another month. The trial was continued until June. The plaintiff was very upset because she had already missed a lot of work to come down to the trial. The lawyers told me that this was a common occurrence and that being a trial attorney is mostly about waiting around.
Finally, I was able to actually attend a trial for a low impact traffic collision. The lawyers said it was a “mess of a trial.” Tensions were high between counsel and the parties did not agree on much of anything. There were some discovery violations by the defense and two of their experts were excluded. Accordingly, the defense had to quickly change their trial strategy.
The trial had already been continued at least once so there were many scheduling conflicts prohibiting experts from testifying in person. The judge apologized to the jury and stated that live testimony is better but the circumstances required that the testimony be a video. The plaintiff presented a video deposition in lieu of live testimony on the first day I was observing. The lights were low and neither the jurors nor the judge appeared to be paying much attention. Following the video several jurors had questions but were unable to ask them since the witness was not physically present. Additionally, the plaintiff’s counsel had misedited their video and had to read in significant testimony that was cut from the final product.
On the second day the defendant intended to use the video testimony of one of their expert witnesses. The attorneys argued about what portions were admissible for 45 minutes. After the judge ruled on the objections, the defense’s legal secretary literally ran the list of approved segments to a videographer who would hopefully have the changes done before court reconvened after lunch.
There was a marked difference in the jury when the plaintiff was put on the stand for her live testimony. They were more engaged and many were leaning forward. They were able to have their questions answered and were presumably better able to assess the credibility of her testimony. The attorneys were also better able to react to what she was saying and what the jury seemed interested in. Although the administrative requirements of the video depositions are understandable, nothing can compete with live in-court testimony.
It was also really interesting to see the different courtroom styles of the various lawyers. The plaintiff’s attorney had a relatively aggressive style. He argued forcefully that the defendant had failed to produce discovery. I was never able to get the full details of it, but the judge agreed with the plaintiff that there were indeed violations. The plaintiff’s attorney was likely justified in his argument but his tone was whiney and unprofessional. Additionally, he was visibly exasperated and loudly sighed several times while the defense was responding.
On the second day of trial I sat with the managing partner of our firm. She pointed out key things that the lawyers on both sides did well and things that they probably should not have done. The defense lawyer referred to his client as “the defendant” more than once. The partner nudged me and told me never to do that in a trial. Additionally, the defense attorney used a large photograph of the plaintiff’s car as a demonstrative exhibit. He was just going to hold it with one hand while holding his notes in the other. His co-counsel attempted to bring him an easel but had difficultly navigating it around other obstacles in the courtroom. It created a bit of a spectacle and would have run smoother if the attorney had been able to set up first. Kelley also told me to always ask the judge to publish an exhibit because a lot of attorney’s forget to do that.
After a bit of a rough start, the defense lawyer asked a lot of great questions. The client was a young man, only 22 at the time of the accident, and had a difficult time focusing. Throughout the video depositions he kept bouncing between sitting at the defense table and in the benches in the gallery. His lawyer attempted to help him get back on track and lead him through his testimony step by step. However, he volunteered that he had been cited for a traffic violation. All four of the lawyers in the room had to hide a look of surprise when he said that. Generally, police reports are excluded from juries because they are prejudicial. I am not sure if the witness was not sufficiently prepped by his lawyers or if he did not realize what he was saying.
The plaintiff’s counsel had a masterful cross. The defendant essentially admitted to either lying to the police officer at the scene or in court under oath. The plaintiff’s attorney had the witness in the palm of his hand. Eventually the defendant just kept talking and volunteering more information than he was asked. Defense counsel was visibly shaken. I was unable to watch the rest of his testimony to see when the attorney was going with that specific line of questioning. It would have been interesting to see whether the defense was able to rehabilitate him.
I learned a lot from this experience. I did not realize just how much went into a trial. Civil trials in King County are scheduled more than a year out. Lawyers work on these cases for years and there are innumerable things that make come up before a verdict is read. I have watched attorneys spend 20 hours one weekend preparing for a trial that settled an hour before it was set to begin. I have heard of cases settling on the front steps of the courthouse just before closing argument. Most importantly, I learned that life as a trial attorney is frustrating and unpredictable. Would we have it any other way?