Sunday, August 22, 2010

Demystifying the courtroom experience

My first exposure to an actual live courtroom was during law school when I took classes in Europe. Part of the curriculum, when we were in England included watching a live trial. The barristers (British lawyers) wore white wigs and robes and the courtrooms tended towards the formal and majestic.

Back in America, I spent plenty of time in my law school’s mock courtroom but it was not until my judicial clerkship after graduation did I sit in a courtroom almost every day. By the time I entered private practice, the courtroom setting no longer intimidated me (although my first –OK maybe my first ten – hearings/trials/arguments were a bit nerve-wracking.)

Now, court is a second home for me and I relish the opportunity to advocate for my client-- formulating an argument, questioning witnesses and presenting my case. 

For litigants, the courtroom experience usually causes a great deal of anxiety – over the process, your performance, the performance of your lawyer, mystery about the judge and fear about the outcome. By understanding a bit more about how the entire process works, you can relieve some of the tension and concentrate on what is most important: getting the best result possible. Here are nine (9) tips, tricks and bits of information to help get you ready. (I chose nine because once, early in my career -- I had to wait nine hours before my case was called.  I arrived at 8:30 am and waited through dozens and dozens of other cases until finally be called at 5:30 pm. An all day wait tends to be the exception - not the rule -- but realize that most courthouses are overburdened and subject to delays.See numbers two and three, below).

1. Manage your expectations. You can only accomplish so much in court – and there are generally no clear winners and losers, especially in family law matters. Both parties usually leave a bit satisfied ---- and a bit unsatisfied.  That said, if you are smart in your litigation strategy, you and your lawyer can successfully advance your position.

2. Be prepared to wait. Generally, most cases are placed on one list, and all scheduled for the same time – usually somewhere between 8:30 and 9:30 am. Each judge manages the list in their own way – some take all cases with two attorneys first — some take pro se (unrepresented litigants first). Sometimes, the case before you can delay everyone else – one hearing that lasts too long puts off everything else. Beware the break for lunch — if your case is not called in the morning– the court might not start again until 1:30 pm. Even though I prepare all of my clients for the possibility of a long day, at least once every two or three months, a client will act shocked that our case is not taken right at 9:00 am.

3. You most likely will be in the same waiting room as the other party – which can obviously be extremely uncomfortable. Bring distractions with you – books, magazines, or reading material from work. Sitting there throwing dagger looks at the other party or opposing counsel really does nothing productive for your case.
4. The actual courtroom experience tends to be anti-climactic. Most judges tend to great litigants with an opening line similar to: “There are lots of cases on my list today - let’s be quick.” Replying that you have been waiting all day and your taxes pay the judge’s salary will not be helpful.
5. Speak up, speak slowly and speak clearly. Nothing annoys a judge more than not being able to hear a litigant. Courtrooms can be noisy – people are milling around, noise seeps in through windows or hallways and people shuffle papers. You need to be heard above the din. Speak slowly — no one can understand when you rush through what you are saying. In one of my cases, my client spoke so quickly, even after multiple admonishments, that the judge threatened to lock him in the holding cell for contempt of court. He finally did slow down (but only marginally). Enunciate every word — you may know your own story but the judge has never seen you before and you are one of dozens of stories before the court that day.

6. Understand your case. Re-read the pleading that got you there in the first place – along with any answers. Review your exhibits and make sure they are clear and easy to read. For example, in a support proceeding, you may be asked to explain, in detail, every entry on your paystub. Review it with your Human Resources department well before the hearing.
7. Evidentiary rules control courtrooms. Generally, your attorney asks you questions (direct examination) and the other attorney follows up with questions (cross-examination). Go over your testimony with your attorney. Being prepared can help alleviate a lot of the nervousness.
8. Refrain from shouting, yelling, shifting in your chair, rolling your eyes or sighing in disgust. These things will not help — and tend to hurt your case before the judge.
9. Be prepared to settle. Many cases often settle at the actual courthouse. This means you waive your right to be heard by the judge. Settling can be a frightening experience — Would I do better if I just took my chances before the judge? Know your case, understand the potential outcomes and trust your attorney.
Take a deep breath, relax and be prepared. You will get through this.  Be likable -- the judge is a human being just like you.

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