- WU WEI & LESSONS FROM POLITICS
- ONCE UPON A TIME – STORYTELLING BY TRIAL LAWYERS
- TWO BOOKS WORTH READING BY McGINN & BAILEY
- ARE WE PROFESSIONAL SALES PERSONS AS PLAINTIFF TRIAL LAWYERS?
- THE A-B-C’s OF NEGOTIATION
- DOES THE AMOUNT YOU ASK FOR AS A VERDICT EFFECT THE RESULT?
- RANDOM THOUGHTS ABOUT REPRESENTING PLAINTIFFS
- THIS SHOULD BE EVERY TRIAL LAWYERS MANTRA
- MEDIATION AND MEDIATORS
- TRIAL ASSISTANT INSTRUCTIONS
- VULNERABILITY IS POWER- BRENE BROWN
- APPLYING NEURO LINQUISTIC PROGRAMING STRATEGIES TO TRIAL WORK
- THE STRUGGLE OF BEING A CAREGIVER
- DON KEENAN’S THE KEENAN EDGE 2 – A book you should own
- THE COMPETENCY OF TRIAL JUDGES
- MISCELLANOUS ARGUMENT CAPSULES
- THE QUESTION OF “WHY?” IS A WHOLE LOT MORE IMPORTANT THAN “WHAT HAPPENED?”
- BRIEF THOUGHTS ABOUT JURY COMMUNICATION
Category Archives: Trial
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.
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.”