Category Archives: Trial

THE COMPETENCY OF TRIAL JUDGES

A long time attorney friend of mine who was an outstanding trial lawyer until his retirement recently pointed  out to me his concern that we seem to have numerous superior court  trial judges  in this state who simply aren’t experienced enough or qualified to do a competent job as a trial judge especially in jury cases.

What are  the minimum requirements to be a superior court judge  in  Washington state? Well, our constitution, in Article IV Sec. 17, says that to be eligible for the Supreme Court or Superior Court one must be admitted to the bar of the state.  That’s it. No age requirement. No educational or experience or proof of competency requirement. Anyone who is a lawyer can file for election to become a Supreme or Superior court judge. Any age. Any experience or lack  thereof.  You  just have to be a lawyer.

There is a judicial rule that once elected the judge must Complete the Washington Judicial College program. And, there is a requirement for 45 CLE hours over three years. The Judicial program takes a few days to complete. The National  Judicial College in Reno, Nevada has judicial courses to train judges. Three great plaintiff lawyers I know very well are involved in that College, Robert Parks, Jim Bartimus and Steve English so I know anything they are teaching would be top flight. However, there is no other requirement for either qualifications or training for a judge to be elected in this state and no requirement for full adequate training at the college on a madatory basis

For years there are those in the legal field who have been arguing that our elective system for judicial selection should be replaced with a commission system. The commission would consider applicants for a judicial office and recommend three to the governor who must appoint of the three. At the election the voters would decide whether to retain the judge or have another appointed.

There are those who feel the  elective system is the only fair system which avoid possible political wrong doing  in the selection of  judges. On the other hand, we have witnesses powerful special interest groups pouring millions into the judicial elective system trying to target judges they disagree with and putting their own type of judge on the bench. The most  recent gross  example of this was the supreme court election in Tennessee  where judges were unsuccessfully targeted by big money interests.

Isn’t ironic that in this state, if not all states, a criminal defendant is entitled to effective counsel.We have seen convictions reversed and even trials stopped because the judiciary has found that the trial counsel wasn’t competent. But, what about judges competency to hear cases?  The only real monitoring of the competency of judges is by appeal and review of the record for reversible error. We all know that only a small number of  trials result  in an appeal and we  also know  that too often the transcript and record is inadequate to fully illustrate what happened during the trial involving the competency of the judge.

The reality is that unless there is some screening  process for judicial competency the people can vote a judge into office who hasn’t the experience or qualifications to be an effective judge.

There really is no screening or monitoring of the performance  of judges. Yes, there are websites that seem to be focused  on issues  involving trial judges  in Washington like www.superiorcourtjudgesassociation.com and other websites. However, I’m not aware of any real monitoring  of the judiciary other than the Commission on Judicial Conduct. But, let’s face it, this body doesn’t evaluate day to day judicial ability to conduct trials with competence and experience. It punishes reported wrong doing after something rather ethically wrong has happened.

What is the  reality of the superior court judges in  this  state? Many judges get the position by appointment from the Governor. There is an informal screening of such applicants and there are opportunities to comment, but on the  whole it is a political  process which means it is  not done on an objective basis regarding real qualifications to serve as judge.

Those who file  for  election differ from the historical tradition of who ran for superior  court judge. It used to be that lawyers practiced until they felt the urge to retire and then ran for office. The result was  that a majority of trial judges had years  of  experience before they went on the bench.

That is not the current situation and  hasn’t been for a long time. We have judges who have never tried  a jury case. We have judges who have had virtually no trial experience whatsoever. We have judges who are  on the bench at a very young age. We have judges whose inexperience and  lack of understanding about civil litigation results in bad rulings and conduct which exhibits their having an agenda in cases which influence their  rulings.

As a result we have a significant number  of superior court judges who are only  marginally qualified to be a trial judge. When experience identifies such a judge the trial lawyers file disqualification motions if they are appointed  to their case, but this isn’t a practical solution to the problem. There are counties like King County where  the lawyers rate judges, but that system isn’t entirely fair  or accurate. In addition, there is no real sanction except an opponent could cite the vote in an election.

That  is not to say we don’t also have truly outstanding trial judges that are above  average in their ability to act as a judge. They are well known to the experienced trial lawyers who wish they could try  all their jury cases in front of  judges like this.

We have an uneven judicial system when it comes to trial judges. We  have some great ones, some  good ones and some who should never have been allowed on the bench. Over the years I’ve tried cases with each of these kinds  of  judges. However, there is no real effective means of dealing with this given our constitution. The proposal of  a commission is at best controversial. The elective system is subject to both error and manipulation by money contributions. I wish I had a solution to offer, but I don’t. I only point out the reality as I see it. Maybe you have a solution. I do think it needs discussion.

THE CONNECTION BETWEEN THEATER AND TRIAL LAWYERS

I’d  like you to consider the relationship between the theater and being a trial lawyer.  As  a trial lawyer you need to be a  script writer. Not in the sense of making  up facts, but in the sense of  deciding how to tell the story. The framing you select and the characters you decide to introduce from the actual facts of your case. You need to be the director. You have to decide h0w to present your client’s story and who the characters are  you will introduce plus the sequence of doing so. You need to be the main actor in your play. Not by pretending to be someone you are not or putting up a front, but in exactly the  opposite way. By being totally open and genuine at all times. To accept  the enormous power of telling the truth.  Just as an actor  must adopt the role of the character he or she is playing, you must full  step into the shoes of not only your client  but gain an understanding of every witness, the lawyers, the judge and the jury. Put yourself in their shoes. How do they view what you are presenting and how they present it.

Here are some thoughts about acting and  the theater  you may be able to apply to being a trial lawyer.

Oscar nominee, after William H Macy as said: “there is a popular notion that great actors have to be brave and willing to suffer. While that is true, strangely I find the harder thing is to be brave enough to be simple. To stop when you’ve done it. That’s more frightening than anything.”

Being Genuine:  In Fred Rochlin’s book Old Man in a Baseball Cap he writes: “the greatest gift we can give another is to share ourselves. To do that we must take the mask off and then take off the mask under that one. We reveal ourselves in stories we tell. Stories about ourselves and our experiences. Some are true and some we only think are true.”

Adversity teaches In the play The Teahouse of the August Moon Sakini, an interpreter for the American army, Begins to play by walking down to the footlights in introducing himself to the audience. He describes to them how Okinawa has been conquered many, many times. He says this is helped educate his people. Then he says: “not easy to learn. Sometimes painful. But pain makes man think. Thought makes man wise. Wisdom makes life in durable.”

Being heard  Rex Harrison’s book A Damned Serious Business talks about touring with a theater production. He says that it is an invaluable training ground because you are forced to hold the attention of a restless audience and keep them quiet. You learn to judge the back wall of most theaters and practice hitting the wall with your voice. You need to become experienced at “bouncing off the back wall.” He also discusses self-consciousness. The average human being, if stared at by a lot of other human beings, does get self-conscious. On the stage we  were constantly being stared at by people it auditoriums. The great trick in losing it is in thinking right. If you’re thinking that part right, you should be too occupied in your head to think about your own body.”

Here are some quotes about acting:

  • Talk low, talk slow, and don’t talk too much. – John Wayne
  • acting is the most minor of gifts and not a very high-class way to make a living. After all, Shirley Temple could do it at the age of four. – Katharine Hepburn
  • you can pick out actors by glazed look that comes into their eyes when the conversation wanders away from themselves. – Michael Wilding
  • acting is standing up naked and turning around very slowly. – Rosalind Russell
  • a lot of what acting is, is paying attention. – Nancy Reagan
  • actor is a guy who, if you ain’t talking about him, ain’t listening. – Marlon Brando
  • Tennessee Ernie Ford was a well-known singer who said: “don’t get bigger than the person buying the ticket.”
  • In the movie The Empire Strikes Back Yoda says to Luke Skywalker, “do or do not. There is no try.”
  • acting is happy agony. – Jean – Paul Sartre
  • I want to give the audience a hint of a scene. No more than that. Give them too much and they will contribute anything themselves. Give them just a suggestion  and you get them working with you. That’s what gives the theater meaning; when it becomes a social act. – Orson Welles
  • In Italy or three years, under the Borgias, they had warfare, terror, murder, bloodshed – they produced Michelangelo, Leonardo de Vinci and the Renaissance. In Switzerland they had brotherly love, 500 years of democracy and peace and what did that produce? The cuckoo clock. – Orson Welles
  • a hero is an ordinary individual who finds the strength to persevere and endure in spite of overwhelming obstacles. – Christopher Reeve
  • a true priest is aware of the presence of the altar during every moment that he is conducting a service. It is exactly the same way that a true artist should react to the stage all the time he is in the theater. An actor who is incapable of this feeling will never be a true artist. Konstantin Stanislavisky
  • we have all, at one time or another, been performers, and many of us still are – politicians, playboys, Cardinals and Kings. – Laurence Olivier
  • all the world’s a stage and all the men and women merely players. They have their exits and their entrances; and one man in his time plays many parts, is ask the seven ages. – Shakespeare
  • You’re only as good as your last picture. – Marie Dressler

The ability to paint a picture with words  The sports writer Bob Dolgan of the Cleveland Plain Dealer once wrote that when Indiana broadcaster Jack Graney was doing play-by-play, “you could smell the resin in the dugouts, feel the clean smack of the ball against the bat and and see the hawkers in the stands.”

Fear  Cus D’ Amato was a boxing trainer. He once said” fear is your best friend or your worst enemy. It’s like fire. If you can control it, it can cook for you; it can heat your house. If you can’t control, it will burn everything around you and destroy you.”

Being Nervous  The actor Donald Sutherland has said: “I have made 101 films and I still throw up at the beginning of every one.”

Attitude & self confidence  Howard Hawkes was a Hollywood movie director. He once said: “I have seen actors go along for years and are no better than satisfactory. Suddenly they become brilliant because they found confidence confidence brings poise, style and polish to an actor.”

First impressions  In a biography about the actor W. C. Fields, it was pointed out that he was a star when  to be successful in vaudeville you only had an act that was 12 to 18 minutes long. You have to follow other acts, grab attention of the audience, sell your show all in a very short time.

The story must make sense  In the Greek theater there was a phrase “God from a machine” to describe a solution by a director of a play where he could not think of a logical explanation. Instead they would lower a statue of one of the Greek who would ordain the outcome. This was considered very poor talent for a writer or director. Our trials have to have logical explanations to be acceptable to jurors.

Hard work  In the 1933 movie A League of Their Own Tom Hanks playing the role of the baseball manager says to Gleena Davis, playing the role of the star catcher on the team, when she tells him she plans to quit because it is just too hard: “it’s supposed to be hard. If it wasn’t hard everyone would be doing it. It’s the hard part that makes it great.”

 

OBJECTIONS – A GOOD IDEA OR NOT?

I’ve written before about making objections at trial. http//plaintifftrial lawyer tips.com/should-you-object-or-not It is not a simple subject. My inclination is to avoid making objections even when I could except when it is truly called for. We know that an objection calls attention to the subject involved so some thought about what to object to is important. On the other hand jurors have watched enough television that they expect the lawyer to object. I don’t think objections in general are a problem for jurors. However,  I’ve tried cases  against lawyers  who object all the time and jurors really do resent those lawyers especially when it means they have to go to the jury room.  The real question is what you object to and how you object.

I’ve previously written that the fact that one has the right to object doesn’t mean you should object. My general policy is that I object when (a) there is a violation of a pretrial motion in limine since  if it was important  enough to move on  in advance  of trial it  is important to object to a violation of the order  (b) to evidence which is inadmissible and prejudicial enough that it would be difficult to deal with it simply by opening the subject on re-examination with the witness (c) it involves personal attacks on the witness for which intervention is called for  to protect the witness from abuse- Note that in some cases it is better not to intervene for abuse of a likable witness where juror anger against  the other  lawyer  exists for doing it (d)  it involves issues which require a record to be made by objecting and (e) there are other compelling reasons for objecting.  Like a strike zone in baseball, you need to develop a skill of knowing when an objection should be made and lean towards  avoiding objections during trial.

More important than the question of whether one should object,  is the issue of how one should object A trial is a battle of depression and not logic. We create impressions by our conduct, our body language, voice and general demeanor. Anger and outrage rarely work to our advantage. Calm professional words demonstrate self-confidence and authority. When we object correctly we are perceived as simply doing our job as a lawyer. We can however create the  impression that we are trying to hide something by overreacting. If we are going to object let us do so in a way that is not offensive to the judge or jury and which communicates our professional skill.

I have a friend in Nashville Tennessee, Randall L Kennard who is a gifted plaintiff’s trial lawyer and a member with me in the Inner Circle of Advocates, a national plaintiff’s trial organization. We agree about many things regarding plaintiff’s trial work. Recently he communicated with me regarding his view about objections during depositions. The subject of deposition objections and representing clients and witnesses at a deposition involves somewhat different considerations than that of trial objections. But, since our practice has become one where discovery represents the greatest portion of our work compared to trial,the subject is important.

Randy writes that defending a deposition is actually very strenuous. Here’s what he said to me:

“I used a box. It takes a lot of energy to give a beating. It takes a lot to take one as well. So, our job is very hard. It requires constant vigilance and watching the defense attorney during the deposition questioning. Pay attention to the facts of the case and what the witness has said. When the defense attorney attempts to use a compound question, with the first part being false and the second part true, you must object to form. We should not let the defense use such tactics.”

As Randy pointed out to me, “do not be hesitant to object to form if there is any doubt as to whether you should object to the question or not” during the deposition you are defending.

The subject of objection during discovery is actually an important and difficult area  of  practice.  Defending a deposition is only one  aspect. For example, when you get the rubber  stamp objections to every interrogatory, do you move to compel or do you submit additional, more specific questions about the objection until you have a clear abuse demonstrated before you move? My experience is that judges do not like discovery disputes  and especially those that require going over interrogatories. They really tend to be reluctant to do much about these issues. Instead of filing a motion, is there a 30(b)(6)  deponent you can depose and ask the objected to interrogatories about rather than move?

And, what do you do about the defense lawyer  who objects to virtually every question at the deposition and otherwise does whatever they can to obstruct your taking a deposition? You can’t get a discovery master  in every case. Judges don’t want to get  a phone call about two lawyers arguing about questions and don’t want to hear the dispute on motion either. How do you respond? Do you recess the deposition or continue to the end for a full record of abuse of discovery by the defendant’s lawyer?

The ABA created a video some years back of a staged deposition being taken by a young woman with an older male defending it. The lawyer defending it was condescending, abusive and obstructive  to the extreme. It was  a teaching video, but not far from the reality in a lot of depositions. While at some point it is only logical to recess the deposition and ask for relief from the court, it is more often the better tactic to remain calm, make your objections clearly and briefly and move on. The more the argument between counsel, the less clear it is who is at fault.

The lesson for me is that the right to object is a valuable tool. It should be used whenever it is important to do so to protect the record. It should be done when it is tactically important, but not every time you are entitled to do so. And, it should be done calmly, professionally and rationally.  My thanks to Randy.