Robbins: How the show of litigation is staged (column) | VailDaily.com

Robbins: How the show of litigation is staged (column)

I was in a meeting with a client recently. There were two attorneys in the room and two support persons who were important to the case. Both attorneys were on the same side — my client’s side. We were preparing her for a trial in which she would be a key witness.

Now, before you jump on a high horse of indignation, there is a world of difference between “preparing” a client for trial and “coaching” one. It is the same difference between preparing for your midterms and hacking into the professor’s data base a priori for the answers.

For most folks, a trial is a sort of out-of-body experience. Being a witness —particularly a key one — is, more times than not, something that he or she has never done before. The thought alone can bring on palpations. It is nervous-making. So a little prep may go a long way to cool the stress.

In any event, one of us was going on. The client was taking notes. We were spelling out how things would be expected to unfold throughout the week of trial when the client perked up. “How do you decide who does what when?” she asked.

The other attorney and I looked at each other. It dawned on us both that what was so obvious to both of us we had failed to adequately explain to the client.

The other attorney said, “The prosecution goes first. And then the defense goes.”

The client had one of those looks.  We had lost her.

She said, “So, you take turns?”

I caught the thread before the other lawyer.  “Nope,” I said.  “The prosecution — or the plaintiff if this were a civil trial — goes first. Soup to nuts. We put on our whole case from start to finish. Then it’s the defense’s turn and the defense puts on its case.”

She bloomed with the recognition that was dawning on her. “Oh!”

The other lawyer chimed in. “We go first. Start to finish. Then they go. Start to finish.  But then we get,” he said, with a surprising flourish, “a  second swing at the pinata.”

I said, “If we need to, we can rebut. We can call witnesses to respond to things that were presented during the defense’s case.”

The first lawyer said, “Us. Them. Then us again if we need to.”

The client said, “OK. I get it.”

Then one of the support folks piped up. “That doesn’t mean, though, that the defendant’s lawyer won’t be doing anything when we put on our case.  After we examine a witness — which during our case is called direct examination — the defense attorney will cross examine the witness.”

“Or at least will have the right to,” I added. “Sometimes, when the witness hasn’t said anything harmful, I choose not to cross.”

“Or maybe,” the second support person said, “Ask only a question or two.  Clarify a matter.”

“So,” the other lawyer and I shared turns in saying, “It goes like this. First, we pick a jury. This is called empaneling. Once our jury is selected, each side gives its opening statement. The lay of the land. Their version of what the testimony and the evidence will show. The prosecution begins to call its witnesses. After each witness, the defense will have a chance to cross-examine. And we will have the chance to “rehabilitate’ the witness. If the defense scores any points, we may want to ask the witness a couple of questions to clarify something that might have been misconstrued. Then the next witness and the next until we have put on our entire case.

“Then the defense puts on its case. Same spiel. He calls his witnesses. We cross them. He rehabilitates as necessary. If we need to, we call rebuttal witnesses. Then we each give closing statements. Then the judge gives the jury its instructions.

“And at some point, the jury comes back with its verdict.”

“Will the jury determine right then what sentence he will get?” the client asked.

“No,” the other lawyer said. “In a criminal trial — which this is — the jury doesn’t determine the sentence. That is for the judge and is usually set for another date.”

“Only guilty or not guilty,” I said. “As to each count.”

The client said, “OK. Got it.” She had perked up mightily.

On my drive home, it impressed upon me: Lawyers have got to start at the beginning. Not everyone lives with this stuff the way we do. We can’t presume that people understand. And, frankly, TV and movies make it worse. I resolved to follow Julie Andrew’s dictum from “The Sound of Music” and to henceforth “start at the very beginning.” It is, after all, “a very good place to start.”

Rohn K. Robbins is an attorney licensed before the bars of Colorado and California who practices in the Vail Valley with the law firm of Stevens, Littman, Biddison, Tharp & Weinberg LLC. His practice areas include business and commercial transactions, real estate and development, family law, custody and divorce and civil litigation. Robbins may be reached at 970-926-4461 or at his email address, robbins@slblaw.com.