Thursday, January 12, 2012

Legal fallacies and things about jury trials you might not know (or agree with)

Sometimes lay people are amazed at the evidence and other procedural rules that control jury trials. Also, what passes for common knowledge about the law often is dead wrong. Here are some facts about jury trials and the rules that regulate them that might interest you. These are SIMPLIFIED versions of these legal concepts. (Speak to a lawyer about the rest of the story.)

1. "The victim says she'll drop the charges before trial."
A victim of a crime does not bring criminal charges against another person. The prosecutor brings criminal charges. A prosecutor (often in magistrate's court the police officer is the prosecutor) pays close attention to whether a victim wants a prosecution to go forward to trial, but the victim cannot drop criminal charges. Frequently in domestic violence cases, the prosecutor will still push forward even if the wife doesn't want her husband to be tried.

2. "I have signed, notarized statements from five witnesses that I'm gonna bring to trial."
Don't write a check on using these at trial. Hearsay is roughly defined as a (a) statement made before a witness gets on the witness stand and (b) which is offered for its truth. However, what most people don't know is that documents are hearsay too, unless the documents were written by an adverse party or there is another exception to the hearsay rule. (Almost anything that your party opponent says or writes before trial and which helps your case against him, is not hearsay.) Parties, especially in magistrate's court, often bring notarized statements (a.k.a "affidavits") of witnesses to court only to find that the statements are inadmissible hearsay. Interestingly, Scotland has essentially abolished the hearsay rule, and it is almost an afterthought in many other countries.

3. "He told me that he has insurance and that the insurance company will probably pay my damages. I'm gonna tell that to the jury."
Unless an insurance company is being sued directly, the fact that a party has, or doesn't have, insurance is kept from the jury. In most states, the insurance company is not a party. For example, when a friend is about to sue a buddy, he is sometimes told by his lawyer, "Don't worry. You're not suing your friend - you're suing his insurance company." Wrong. The friend is being sued - the insurance company merely steps in to hire a lawyer and pay the claim.

4. "I'm going to testify that he offered to pay me money to settle."
Juries are barred from hearing that one of the parties offered to settle the case or pay medical bills. The idea behind the rule is that no one will offer to settle unless he is sure that his settlement offer won't be used against him at trial.

5. "I'll be a character witness for you in your personal-injury case."
Generally speaking, a jury will never get to hear this because a party's character is inadmissible in a civil case. She cannot put up witnesses to say that she is a great person. The rule is reversed in a criminal trial though.

Speak to a trial lawyer about these and other trial matters. Evidence law is very complex. The above examples do not give the exceptions to the procedural rules.

Thursday, August 26, 2010

How many trials has your lawyer tried in the past year?

Monday, I resumed teaching (part-time) at the University of South Carolina School of Law since 2003 when I switched to the Charleston School of Law. This brings to mind one of my pet issues: the vanishing trial lawyer.
What is the truth? It’s common knowledge in the bar and judiciary that jury trials are going the way of the dinosaur. I struck a jury in Orangeburg recently. The judge’s clerk told me that they’d not tried a civil trial since last summer, seven months earlier. Last year one federal judge in South Carolina mentioned that he’d begun his first civil trial of the year - in November! Truthfully speaking, most cases have always been settled out of court. However, trials are so rare these days that young lawyers have no realistic opportunity to learn. I speculate that one or two in a hundred lawyers try jury trials to completion in a given year. The percentage may be a bit higher in family court or workers' compensation litigation, but that's another guess.
"Litigators" now rule the legal battlefield. The difference between a litigator and a trial lawyer is summed up in one word - trial. The King of Torts Joe Jamail in a recent ABA Journal commented on settlement conferences called mediations:
“They’ve invented this new term, litigator. What the #!*@ is a litigator? I’m a trial lawyer . . . . There are some lawyers who do nothing but this mediation bull^!*#. Do you know what the root of mediation is? Mediocrity!”
The reason jury trials are becoming scarce and why (I think) trial errors are becoming more frequent is a lack of training. Lawyers who don’t know how to try cases are afraid of the courtroom. So they settle. Not the type reputation a client wants for her lawyer. It's like a football team with no long-yardage threat.
Trial advocacy, the class I'm teaching, is no longer required in this state. That's a bad thing. After becoming a member of the Bar, there's no requirement that South Carolina lawyers ever complete a trial advocacy course. Nor is a new attorney required to attend a single trial-related continuing legal education seminar in his or her entire career. Between the LSAT and their retirement parties, South Carolina lawyers can go entire careers without taking trial-related legal courses.
Ask your lawyer how many jury trials or family court trials he or she has tried to completion in the past few years. You're entitled to know.

Tuesday, June 29, 2010

Making Sure We Put the Client's Emotions First

Trials are not all about the lawyers. Trials are all about the clients. Clients have feelings. I've tried cases and babysat clients for close to 22 years, mostly in jury trials. I've also prided myself on helping clients get through a trial by minimizing emotional turmoil. Imagine how I felt when I became a litigant.


The litigation was in family court. I filed for divorce. My lawyer was very experienced and did a great job. I was consulted on everything of substance. The first thing I learned was how time consuming the whole thing was. In my law practice, some of my clients want to know everything that happens in their cases. They told us in law school to flood the client with correspondence, but I just wanted to hide from the case. I didn't want to hear anything about it, much less deal with letters and phone calls that at times seemed to come every day. Each letter was a snake reminding me of the divorce. I think the flood rule should be reconsidered.


My job was interrupted. It was difficult to get through work. Information about the case had to be gathered from Lord knows how many sources, calls returned, emails replied to - all the while receiving emotionally sensitive news when I was in other stressful court proceedings with my own clients. The most benign communications from a lawyer or paralegal can cause a client's stomach to twist. So in my opinion, we lawyers should recognize that our clients might be twisting on a spit at work or at home with stress when we call and drop legal bombs.


I've tried many jury trials over the years. It was different in the courtroom sitting next to my lawyer as a client. I love the formal setting in a jury trial and the ability to walk over to the adverse party sitting at counsel table during my closing argument and let him have it. In my case, we parties were gently questioned at counsel tables by the court about the equitable division agreement. I remember thinking thank God I don't have to walk up to that witness box and be cross-examined. I guess the point is that no matter how much experience a client has at public speaking, he or she needs to be closely monitored and talked-down before she testifies.


Moreover, merely being in close proximity to the adverse party at trial brings its own set of emotions and should be carefully avoided, unless the client has an overwhelming need to do so, and even then it's probably not a good idea.


The long and short of all this is that even though our clients tell us lawyers that everything is "OK," it very well might not be. There's no client who couldn't use a bit more tea and sympathy.