Each semester in my Comprehensive Pretrial Advocacy course, the law students go to court, observe and write a report about what they saw and learned. Students select from federal, state or municipal court, and they can choose either a civil or criminal cases. These reports are important for at least three reasons. First, no matter how much you stress certain principles of pretrial and trial practice in a law school class, the lessons don’t stick the way seeing them come live in a courtroom does because the experience connects them with real life. Second, the students’ observations often highlight points that should be emphasized during the course. Third, the reports are delightful to read. Highly recommend that any trial advocacy instructor make courtroom observation a requirement.
Here is a report by Ethan Morris about his courtroom observations and five advocacy fundamental. The names of the participants and place have been changed and the transcripts are Ethan’s accurate account from his notes but are not a verbatim account of the proceedings. Otherwise this is a true description of what happened:
Background
In 2002, Joyce Samson was married to Sam McDuff. That year, they had a son, Mitchell. When Mitchell was two, however, Joyce and Sam divorced. Soon after, Joyce met and fell in love with Adam Lamb. Joyce moved-in with Adam on Vashon Island and in 2008, they had their own child together—a daughter named Betsy.
By 2012, however, Joyce and Adam’s relationship had come to an end. They split, and within the year Joyce began seeing Gary Odell, with whom she is currently in a relationship. Joyce, 11-year-old Mitchell and five-year-old Betsy live in a home in Bothell, where Gary frequently stays with them too.
The Case
In a case before Judge Hand in Unified Family Court, Adam Lamb is seeking joint custody of Betsy. Mr. Lamb rejected a custody arrangement proposed by Ms. Samson, which resulted in this suit. On Tuesday, November 5, 2013, the court heard key portions of Ms. Samson’s case, including testimony from Ms. Samson’s currently boyfriend, Gary Odell, and her ex-husband, Sam McDuff. While Ms. Samson’s attorney attempted to show that both Betsy and Mitchell are in a stable, caring environment, Mr. Lamb, acting pro se, tried to demonstrate that Ms. Samson provides poor structure for the children, and intimated that Mitchell is somehow a threat to Betsy’s safety and well-being.
After watching two hours of the proceedings, here is what I learned:
Lesson #1: Never represent yourself.
Seriously. Don’t. Even if you are an attorney. Especially if you are an attorney, because you should know better.
Adam Lamb is a real-estate attorney, but in this custody matter, he has opted to act pro se. Whether that decision was prompted by over-confidence, or financial constraints, Mr. Lamb comes dangerously close to proving the adage that a man who represents himself has a fool for a client.
Wearing dungarees and a baggy sweater, Mr. Lamb kept his court files in an old box for doggy treats sitting on the desk in front of him. He took notes with a blue highlighter, writing out questions for the witnesses in big blocky text. He rarely objected during Ms. Samson’s direct examinations, though I thought there were several he could have made for hearsay, narrative, and relevance.
During questioning, Mr. Lamb was clearly nervous, and the notes in his hand shook while he cross-examined the witnesses. His questions were, for the most part, targeted and designed to elicit some kind of “gotcha” or confession. For example—asking Mr. Odell when he had his first date with Ms. Samson in an attempt to show that they started dating before Mr. Lamb and Ms. Samson had formally ended their relationship. But most of his questions were not leading, and gave witnesses too much leeway to explain away the “gotcha.”
Lamb: Did you know when you started dating Joyce that she and I were still in a committed family relationship?
Odell: No.
Lamb: When you saw Joyce on Labor Day weekend, did you consider that a date?
Odell: A date? No.
Lamb: What do you consider a date?
Odell: Dinner and a movie would be a date for me.
Lesson #2: Silence can be golden.
Leonardo da Vinci once said, “Nothing strengthens authority so much as silence.” This was certainly true for Ms. Samson’s attorney. During her direct examinations of both Mr. Odell and Mr. McDuff, Ms. Samson’s lawyer methodically and meticulously worked her way through a series of questions from several pages of notes in front of her. Every few minutes, however, she would stop and look over the notes, pausing for upwards of a minute. The silence in the courtroom was deafening as she perused her papers searching for the next line of questioning.
To the uninitiated, it would have seemed awkward and uncomfortable—and for the witnesses, it almost certainly was. But this was a great example of an attorney doing her job—making sure that she’d gotten everything out of the witness she needed, not missing a single fact she’d undoubtedly rely on in closing argument, even if it means long periods of seemingly uncomfortable silence.
Lesson #3: Put a little spring in your step.
The thoroughness of Ms. Samson’s attorney was offset, however, by a nearly complete lack of energy. She never rose from her chair during the proceeding, asking all of her questions from behind her desk. Her voice was low, soft and monotone, almost never fluctuating in tone or tempo. Aside from the witness, it appeared that no one else in the courtroom was paying attention to her questions as she methodically rattled them off, not even the judge, who, for the most part, stared at her own computer screen. Following one objection, the judge had to ask Ms. Samson’s attorney to repeat the question, admitting that she had not been listening to the direct examination.
The questions themselves were also quite perfunctory, especially for a direct examination of friendly witnesses. I thought she could have used less formal questions to elicit a more emotional reaction from her witnesses. For example:
• Have you ever seen Mitchell and Betsy together?
• How would you characterize their relationship?
• Do you ever eat dinner with the family?
• Do you ever cook?
• What do you cook?
I might have been inclined to ask more personal and less formal questions.
• How are Mitchell and Betsy when they are together?
• Do you ever eat dinner with the family?
• What’s that like?
• Describe a typical dinner?
Lesson #4: Answer the question you are asked.
If Mr. Lamb needs a refresher on how to ask a leading question on cross, the witnesses needed some coaching on how to answer his questions – specifically on how to not volunteer potentially damaging information. Both witnesses, but especially Ms. Samson’s ex-husband Sam McDuff, answered several “yes or no” questions, but then elaborated to Ms. Samson’s detriment. Perhaps the best example was an exchange between Mr. Lamb and Mr. McDuff:
Lamb: In 2011, did you ever tell me that you were praying for me and my relationship with Joyce?
McDuff: Uh… no. I don’t… no.
(silence)
McDuff: Um… I recall having a conversation with you… where we were in my garage, and you were picking up my dog because my other dog had just died and you were going to take my dog with your dogs so it wouldn’t be alone. So you were helping me. But I remember Joyce was being… well… controlling and ordering you around, and I said, “Hey buddy, I sure pray for you.”
Lamb: Was Joyce often bossy and controlling.
McDuff: She has a strong personality, yes.
And in another exchange:
Lamb: You stated that you and Joyce have different views on education.
McDuff: Yes.
(silence)
McDuff: I am a little more strict about things than she is.
(silence)
McDuff: Mitchell doesn’t get any computer time when he’s with me, but Joyce lets him use the computer. Mitchell doesn’t get TV with me, although we’ve watched probably every David Attenborough special there is from the County Library. She’s more lax when it comes to that stuff.
In both cases, the question could have been answered “yes” or “no,” but faced with silence, Mr. McDuff felt compelled to keep speaking, ultimately offering harmful testimony that Ms. Samson is bossy and controlling, and lax on educational matters.
Lesson #5: Sometimes love brings out the worst.
The final lesson is less about courtroom procedure as it is about collateral damage. On the surface, what brought the parties to court is a dispute over a custody arrangement. But on a deeper level, what really brought them to court is love. Adam and Joyce both undoubtedly love Betsy, and ultimately want the best for her. But differences in what “the best” means in terms of her upbringing and education have forced them into an adversarial proceeding that doesn’t spare feelings, privacy, or dignity.
During the examination, Mr. Odell had to answer frank and difficult questions about his opinion of Ms. Samson’s abilities as a parent. He also had to discuss his own divorce which preceded his relationship with Ms. Samson, and how that resulted in an embarrassing period of having to stay on friend’s couches.
As Mr. Odell testified, Mr. McDuff sat in the gallery and had to listen to upsetting characterizations about his son, Mitchell—such as his quick temper, how he has an alarm on his bedroom door, and how Mitchell is not allowed to be left alone with Betsy. Later, on the stand, Mr. McDuff had to answer difficult questions about when his son started masturbating, and relive painful moments from his relationship with and divorce from Ms. Samson.
Ultimately the proceedings weren’t easy for anyone: not for Ms. Samson asking her new boyfriend and ex-husband to both testify on her behalf; not for Mr. McDuff having to admit painful truths about his son; not for Mr. Odell having to risk his relationship with Ms. Samson by sharing opinions and observations about her and her children; and not even for Mr. Lamb, who had to evoke painful testimony from the parties about Mitchell—a child he once parented too, and almost surely still cares for. As the Judge’s Bailiff told me, family law cases can be very confusing. Obviously, they can be painful too.
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