10 things to avoid when you're a trial lawyer part 1

 Posted By: je froilan m. clerigo


1. Writtten out questions and answers for the direct examination. The lawyer has the script with him to refer to while examining the witness. What about the witness? Does he really expect the witness to memorize the script? Or even more basic, does he really expect that the examination will proceed according to the script? If the judge and the other lawyer are asleep (which may not be far-fetched because of the canned sound that a scripted examination is trademarked for), maybe. But otherwise, there are just too many variables in trial proceedings that it is just impossible to encapsulate the direct exam in a document labeled "Q&A". Objections are overruled or sustained, evidentiary battles erupt without warning, stipulations entered, etc.

2. Too many objections on insignificant matters. "Objection, Your Honor, leading question." Barely has the lawyer sat back when he springs up again for another objection, "No basis, Your Honor." And then another: "Misleading, Your Honor." Is he afraid of the witness or what the witness will say? Does he not have have confidence in the righteousness of his case? We do not win the case by how many sustained objections are made. On the contrary, too many objections, even if sustained, if made on inconsequential matters, would only paint us as an obstructionist, or worse, somebody who has something to hide.

3. Asking obviously objectionable questions, the flipside of #2 above. Nothing distracts more than a question asked only to be rephrased, or even abandoned altogether, because of an objection. It shows either incompetence or incompetence.

4. Making thoughtless objections that are frequently overruled, a corollary of #2. The only thing worse than making too many objections is making too many overruled objections. Veteran lawyers seldom object; and when they do, they get sustained. This is actually an indirect consequence of making too many objections. Because the judge got used to the lawyer's objections on even unimportant matters, overruling the objections became second nature to him.

5. Unorganized exhibits. "I am showing to you Exhibit `A' which is ah … uh … can I have a moment, Your Honor, while I look for it in my files?" The judge may be more tolerant of this lawyer the first time. But on the second or third? He's already forming his opinion as to whether this lawyer's seeming incompetence is worth his time. In one case that was being tried ahead of mine, the judge was unable to contain his irritation that he told his clerk tersely, "let's call the other cases on the calendar while Attorney So-and-So digs for his documents."