Roger writing the LAWmag

The Art Of Trial: Private and Confidential!


I've known the event to cause self-represented litigants to urinate uncontrollably.

The stress of trial starts with the austere (and unnecessary) decorum and pomp from the judge and lawyers in black funeral garb, to the all-or-nothing stakes riding on what is always a life-defining occasion for the litigants.

But lawyers seem to parade right through, trial after another, some of them well into their 80s, on one or more of some 100,000 trials heard annually in the courtrooms of Canada.

In fact, those old ones are the rare ones.

Most litigants have paid to ignore the sad truth that lawyers pay a heavy personal health price for trials, from irascibility at home to the high-strung level of 'concentrated concentration' required to follow a trial. Look around you: it's no accident that the world is full of burnt-out, early-retired or even pan-handling broken drunkard ex-lawyers.

At the end of every day of trial, the lawyer's mind spins, his teeth grinding and the mind exhausted. Sleep does not come easy especially on nights in between trial days.

A lawyer gives of his heart and soul at trial and it can downright burn him or her out, especially where the other lawyers are rude or pompous. Fact: there are far too many of those in the legal directories.

Plan, plan and plan again is the constant refrain from law school to the large section on 'trial' at the local law library. The tips and tricks of legal authors expound on the 'can't miss' minutia of how to manage a litigation file from client interview to closing submissions.

But even the best planned trial with the world's smartest lawyer never pans out to script. Rehearsed through Power Point though trial may be, the good lawyer expects surprises from the moment he sets his foot on the courthouse stairs.

Some of last-minute things that can happen are:

  • A client or witness is late.
  • The judge isn't ready.
  • The other lawyer drops a decent offer or a new binder of never-before-seen documents.
  • One litigant picks a fight with the other.
  • A part of the lawyer's gown, such as the legal tabs, have gone missing from the locker in the barrister's room.
  • The lawyer has had four coffees and is not only wired and hyper, but nows he's worried he won't make it to the morning break.

Good lawyers or, more accurately, experienced lawyers, are not nervous but they are just as vulnerable to the hazards of trial.

From the moment the judge enters the room and all are commanded by the sheriff to: "All rise! The court of Whatsitsname is now in session, the honourable so-and-so presiding", the laying-on-thick starts.

The judge you draw can greatly influence a trial. I've had a former criminal law lawyer-turned-judge fall asleep during a family law trial, and later have the audacity to decide the case based on credibility!

In my jurisdiction, we used to have a full house of female judges, recently appointed, some with a bright chip on their shoulders for years - never a good draw.

Some judges want to always be right and to hear laughter at their attempts at humour - but not to be subjected to any by counsel. These are usually immune to persuasive argument.

Other judges are just plain cowboys or clowns; some academic and some as wise as Solomon, still others who try too hard to be all things to all people.

Who the judge is, is a significant factor and a clear advantage to experienced counsel.

Behind the judge, almost always perched up high behind a desk on an elevated platform, sits an emblem of some kind or another; either a coat of arms with a menacing eagle or a teeth-bearing lion seemingly about to jump out, and usually surrounded by a set of Latin or French words that no-one seems to understand.

The clerk, once the august judge sits down, announces the official name of the case and then, the throat-clearing from the bench, which replaces, in Canada, the gavel as the commencement of trial.

Counsel introduce themselves but not with their full name. As if reading from a phone book, the lawyers start with the spelling of their surname and instead of offering their first names, merely give the judge their initial.

I am not "Lloyd" or "Lloyd Duhaime" in trial.

I am Mr. Duhaime or "counsel".

Nowhere else does anyone call me "Mr. Duhaime" although I could get used to it ... not!

The formalism is right over the top but, thank God, we've at least gotten rid of the wigs (pictured; see also Old Bailey).

A large bright digital clock marks the time to the hundredth of a second and casts a red glow onto the counsel table. Behind the lawyers, each has strewn out their various documents on yet another table.

The start of trial can be the venue of the first real skirmish.

Who goes first?

Has a document slipped into a proposed book of exhibits?

The judge rules on all these procedural matters with the intent to get the show on the road as soon as possible as the trial is at its core, the entering into evidence given by the witnesses.

Judge's hold what is politely called "banker's hours". In British Columbia, that means they sit for only 4 hours a day (from 10 to 12:30 and from 2 to 4 but minus two coffee breaks of 15 minutes), another ridiculous relic from the past.

The first formal event is the opening statement, designed to give the judge (or jury) a summary of what will be proven and the first showing of the litigant's case theory.

The other side's opening statement comes later; at the end of the plaintiff's case.

Thus, the plaintiff has a small tactical advantage in impregnating the judge's mind with his or her client's theory, all the while with the other having to bite his tongue as it is a serious faux pas to interrupt an opening statement.

And then the boat of trial is launched - the bell rings - and witnesses start to give their evidence.

Some witnesses take 100 words to answer a question when two will suffice.

Others are argumentative, goaded on by their frequently objecting counsel.

Sometimes, you'll get lucky and a judge will tell the other lawyer to "be quiet, please" and the shrapnel of objection subsides.

Other times, you can try to tell a witness you are cross-examining to just answer the question, only to be rebuked by the judge who says "let him finish".

This is usually the same judge that complains if you exceed your time estimate with the witness.

And then, when you are in full flight, the inevitable occurs.

Lloyd Duhaime aka A person in the courtroom bellows out in objection at something the witness says. I've seen a litigant give the court the drama of a very loud anxiety attack during the other side's evidence, which not only stopped proceeding but brought no less than two ambulances, one fire truck and six first aid attendants to the scene.

That drama cost us her case.

Some litigants just cannot sit still when the other is testifying. Lawyers can take advantage of that by discreetly goading the litigant into disrupting proceedings, a stunt which leaves the disrupting party on the judge's hit (sic!) list.

And then there was the time a litigant got a cell phone call right in court and shrugged at the judge: "I'm just going to take this" and left the courtroom. The judge's face went a shade of red and she, too, stomped out of the courtroom.

The cell phone user lost her case.

People come in and out of the public gallery and can throw a wrench at things (see Contempt Of Court: Greatest Hits and Crazy Justice Videos).

Trial does not start or end slowly. It starts at high speed and sustains that pace throughout.

A missed sentence while counsel is distracted can mean a key piece of inadmissible evidence getting into the record.

While looking for an admission, a lawyer is constantly adjusting his or her questions, much like a fly fisherman playing a nibbling fish.

The subtle adjustments are not exclusively verbal. A lawyer’s body language is a valuable tool. Experienced trial lawyers will use it to help "play the fish".

It means something to move right next to the witness when you ask him or her a question - it means you appear to be really emphatic with the witness or are very interested in the answer. Conversely, to encourage a witness' confidence in an area he or she may compromise his case, you can feign to be distracted.

And even while you play these games lawyers play, you can’t lose the larger image being picked up by the jury or judge; the whole picture. It must play out in such a way as to not only be persuasive but also interesting.

Hence, the concentration. If you can't chew gum and run a trial at the same time, stay out of the kitchen.

When it's all over, the emotions hold you tight like a rubber ball as you await those words from the judge's mouth, the reasons for judgment. As counsel, you do not show any emotion either way.

When the other lawyer realizes he has lost, he must also have to have the wherewithal to confidently argue against an application for costs, not an easy thing to do when all he can think is "How can this be? We got screwed! What were you thinking judge! We're appealing!"

Regardless of tears or joy, the clock of justice continues to tick as the judge leaves the courtroom, and the litigants file out to celebrate or remonstrate in the corridors, two small but very distinct packs moving towards the elevator.

It's 4:01 PM and the clerk locks the courtroom door, picks up the court file and makes her final notes. When the clerk leaves, the stage finally stands empty, quiet and still.

The next morning, other lawyers appear at the steps of the courthouse and the drama, although different in points of detail, unfolds as it has since the British perfected the art of trial.

Except that somewhere, a tired but content lawyer awakes to the sweet realization that his trial is behind him.

And right now, that lawyer is me.

Posted in Legal Profession and Lawyers, Litigation