A trial attorney's strategy

We are already two business days into the New Year, and it has gotten off to a rather slow start.  We have returned from the Holidays well rested and fed, and now we have to face a mountain of mail and other work demands.  With the pressure of our current economic woes, it is not surprising that our clients want money, and they want it now.

Clients often complain to me about the behavior of their trial attorneys.  The complaints range from not returning phone calls to not paying attention to their suggestions as to how the attorney should have tried the case.  It could be a matter of lack of preparation or bad choices.

 When does a strategic choice become an error?  Usually at the end of the case when the clients have lost and the attorney realizes his or her strategy didn’t pay off.  Quite often, a client will complain that the trial attorney failed to present crucial evidence or failed to properly question a witness.  The client may say that the attorney was urged to pursue a certain course of action, but often there is no record of these discussions between attorney and client. 

While strategic choices may result in errors or misjudgments in how the attorney tried the case, typically they do not result in an appealable issue.  I may advise a client that the error they seek to raise is really their attorney's strategic choice, an error which the appellate court will not consider.  If the client has chosen someone who is green at trial or decides not to pursue a line of questioning, there is nothing I can do.  At the extreme end, the attorney's handling of the case may be malpractice.

Happy Holidays!

Well, I don't imagine anyone is really working today.  If you are mindful of balancing your work and social lives, you should be at home with your family and friends.   I just wanted to take this opportunity to wish everyone a wonderful Holiday season.  I will be back in 2009!

What can you learn as a temporary judge?

If the courtroom is your playing field, then playing all of the positions may help improve your courtroom performance.   I started my legal career many years ago as a legal secretary, then a law clerk, process server, attorney, mediator, and now occasionally, a temporary judge.  If you ever have an opportunity to serve as a temporary judge, take it.  Not only are you giving back to the community - and not just the legal community - but you are educating yourself about one of the players in your game.  The experience (in my case, small claims court) gives you some understanding of how judges have to determine credibility and make decisions that impact people's lives.  You may think that small claims would be a snap but some very tough questions frequently arise when the parties present their cases.

Sitting as a judge gives you some perspective as to how litigants act.  You can appreciate a presentation that is clear and concise.  You can also find yourself getting confused and lost when the presentation is muddled and disorganized.  Acting as a judge, even a temporary one, has given me some insight into how a judge or justice might view my presentation.  It is just one more piece of the puzzle that helps us "practice" our profession.

No matter who else might attend your oral argument, your real audience is the justices.  Neither your client nor your friends can impact the Court's decision.  As authors Scalia and Garner point out in their book, Making Your Case: The Art of Persuading Judges, "In most courts, the modern oral argument would be more accurately described as a discussion led by the judges."  Your goal is to have a discussion with them about your case.  As in any discussion, you want to make sure that your points are organized and persuasively presented.  When you have the chance to observe this "discussion" from the viewpoint of the judicial bench, you quickly learn when a party's points are neither.  But you also learn to appreciate when they are both.

You might also be interested in reading a blog by another appellate law firm, Archer Norris, about when "The Teacher Becomes the Student."  The blogger was describing his experiences sitting as a "justice" for an appellate advocacy class, and what he learned from his students.  Of course, his story confirms the principle that one teaches for the purpose of learning.

Stuck in Bangkok

In my last post, I wrote that I was taking a break until November 30th.  Not only am I a sole practitioner, but I always write my own blogs.  Taking a vacation from my law practice also meant taking a break from blogging.  I spent 19 days in Thailand and Cambodia.  By the end of my trip, I was more than ready to return to work.  This trip was one of those rare occasions where I did not take any reading material or work.  I felt like I needed a complete break from the law.

Life has a way of interfering with our best plans.  I was in Chiang Mai, getting ready to fly back to Bangkok for a few more days, then on to Los Angeles.  Unfortunately, a group of protesters took over the international airport, which serves as a major hub for Asian travel.  They also grabbed the domestic airport in Bangkok and brought air traffic to a standstill.  My departure flight was canceled and I was stuck in Bangkok for another ten days.  I did manage to make it to the coast a few times and I can't say that the entire stay was a complete negative, but it certainly was an unusual experience.

The stress was considerable.  Our group was transferred to one of several large hotels set up to receive stranded travelers.  Needless to say, most of those tourists were not happy with the situation and we constantly discussed how we might leave Bangkok and whether we were in danger by staying.  Some people spent thousands in hiring vehicles and planes to take them out.  Most every avenue of escape required many hours of travel.  At times, we were told to stay off the streets because of potential danger, but in retrospect, the protesters did not appear to be violent.  The concern was that there might be a coup by the military, which could then lead to potential danger.

I arrived home about ten days later than planned.  I am glad that I pushed myself to file documents, etc., before leaving.  Had I not done so, I might have been in trouble.  When I tell attorneys not to file anything on the very last day because something unforeseen could happen,  I can use this experience as an example.  Although auto accidents or traffic delays are more likely than a coup, one should have a comfortable cushion in filing documents to allow for a second filing, if necessary.

Upon my return, I was very glad to be home.  It was a terrible feeling to be so far from friends and family, and still not know what was going to happen.  Unlike some, I won't say that I will never visit Thailand again.  If anything, the global economic crisis has made these situations more likely as people become increasingly dissatisfied with their governments.  I will pay more attention to those issues and hope for more prosperous times.  What is truly sad is that the protests and takeover of the airports will certainly hurt Thai's thriving tourist business.  I find it hard to believe that the protesters really wanted to harm their friends and fellow citizens.  For now, I will focus on future ski trips . . . in North America!

Taking a break

Well, no one can work all of the time.  Sometimes we just need to take a break.  These last few months, even years, could have worn out anyone.  When it was announced that Obama would be our next President, I let out a huge sigh of relief.  And it was the start of hope, not just for me, but for our nation.  Since I am sure that President Obama will be calling on all of us to sacrifice and work, I thought it might be a good time to take a short vacation.  That's right, President Bush will have to cope without me.  I will be visiting Cambodia and Thailand for the next three weeks.  I will try to keep it a secret that I am a lawyer.  I will pretend to be a tourist/photographer.  Although I will return on November 30th, don't count on an immediate posting.  The older I get, the harder it is to recover from jet lag.  Until then . . .