Jurist — continued from Page 16
women, step all over their opponents (and themselves), to their own detriment, believing that their show of power and strength was effective. Sometimes, rarely, it can be. Usually the attorney becomes his or her own worst enemy.
Litigator or trial lawyer? Litigators and trial lawyers are not
the same. Trial lawyers are the justice sys- tem’s gladiators. They are the fighters in the ring. “Litigators” are more commonly seen as the people doing the paperwork, motion work and preparation before the jurors enter the arena. These are two completely different animals. The obser- vations I offer relate to trial lawyers,
where the ability to relate to people and to tell a story, show up most clearly. Some men and women are suited to
and relish the challenge of working on their feet, of taking on the task of creating a world that can change question-by-ques- tion, witness-by- witness, and to weave the whole into an appealing and compelling package. Not all do and not all should. Many are not equipped with the nimble- ness required to be a really good trial lawyer. Some cannot manage the need for flexibility and ability to shift on a dime, and the need to be able to read jurors. I have seen some oblivious to these needs, and I marvel that they have chosen a field for which they are so ill-suited. One example comes to mind. Since
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starting on the bench, I have invited jurors to submit written questions to the lawyers during the trial. Though this was new back when I started, this is fairly common now and in fact has been incor- porated into Rule of Court 2.1033 (effec- tive January 2007.) Every once in a while, a trial lawyer would object that this would destroy his strategy. (In 25 years, I have never seen a woman make this objection, so the gender is used deliber- ately.) I am always astonished at such an objection as I have always considered juror questions as priceless gifts to trial lawyers, giving them a golden opportuni- ty to correct a misapprehension, reshape
a bias, respond to a concern by the ulti- mate decision maker, or get a glimpse of what the production looks like from the other side – before it is too late. Not hearing the question, which
happens when jurors are not permitted to articulate their confusion, concern or problem, does not make the issue go away. Rather, if the attorneys don’t get to answer the question, the juror will readily do so without input from the advocates. Having a chance to know where jurors are perhaps going off track or finding out what might be distracting them and being able to weigh in, is a valuable advantage. The objection to juror ques- tions suggests an approach to trial that is imminently short-sighted. It reflects a fixed plan that will be rolled out come hell or high water, regardless of its effec- tiveness or persuasiveness. There are many trial lawyers with this trait, and if they win, it is too often in spite of themselves. I have seen both masculinity and
femininity played to great success as well as miserable failure. The best trial attor- neys, in my view, are not the pit-bulls but are, invariably, gentlemen and gentle- women. It is clear to me that the best trial lawyers project integrity. They are liked, by jurors, judges, court staff and their opponents.
See Jurist, Page 20
Referral Fees Paid Pursuant to State Bar Rules 661.222.9929 818.904.6800
18 — The Advocate Magazine FEBRUARY 2012
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