Robbins: Real trials aren’t like the ones on TV |

Robbins: Real trials aren’t like the ones on TV

I suppose owing to Hollywood, most folks just don’t know much about the way a trial actually works. Admittedly, compared to Galileo, Einstein, Columbus and Orville Redenbacher, it’s probably not all that significant an awakening on my part, but I’ve been floored to learn that people really think that what they see about trials in the movies or TV is, well … real!

In particular, what’s struck me dumb is that even well-intended folks don’t know that the Hollywood gotcha moment is rare. Rather than a witness or a bit of smoking-gun evidence suddenly popping up like a rabbit from a magician’s hat, instead, trials are generally highly structured affairs. An Austrian waltz is less formal than a trial. Chess is a helter-skelter game of chance comparatively. Robert’s Rules of Order are disorderly when held up to the tux-and-cummerbund of trial. I could go on, but will spare you both my further indignation and grasping analogies.

Rather than blame the educational system or personal lassitude for this misunderstanding, I have instead concluded that the demon box is to blame. “Perry Mason,” “L.A. Law,” and their evil progeny and kindred are in fact the culprits.

So like a Pentecostalist unknotting sin, or Sisyphus in his tireless uphill trek against a foe more weighty than mere determination, let me see if I can enlighten and loosen at least a few threads of legal misunderstanding.

Let’s start here. As noted above, trials are highly structured affairs. When I stride into a courtroom, I know who the “will-call” witnesses will be, who the “may-call” witnesses will be, and what evidence will be presented for admission. And I know this for both sides, both plaintiff’s and defendant’s. It’s not that I’m prescient; it’s just that (have I mentioned this before?) trials are highly structured affairs. 

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Before I or any other attorney steps foot (or drags backside) into a courtroom, the checkerboard of litigation is neatly and precisely set. The identity of witnesses and what they have to share have been disclosed. Evidence has been exchanged. Smoking guns have had their vapors blown in the direction of opposing counsel’s snoot. The court has been briefed on what each side hopes to prove. Often, limits have been set for the length of time the plaintiffs will have to prove their case and the time allotted to the defense to dodge the slings and arrows of the plaintiff’s grievous allegations.

Often, particularly in complex cases, the length of opening statements has been predetermined, the length of what shall constitute a trial day has been set, and even the length and timing of the mid-day break have been committed to agreement.

As but one example, in one pending case, final in liminie motions will be argued on May 2. Voir dire will be conducted and a jury of 12 empaneled on May 5. (Lo siento, no cervesas for me this Cinco de Mayo!). Opening statements will commence on Tuesday, May 6, and be limited to one and a half hours per side. The plaintiff will have a week to present their case and, following the plaintiff’s case, the defendant will have equal time. The morning session will be conducted from 9 a.m. to noon whereupon the court will recess for almuerza. At 1:30 p.m., all parties being nourished, we will resume proceedings. The trial day will conclude at 5 p.m. Trial will be heard on a Monday through Friday and will conclude on schedule.

Eleven witnesses, including experts, will appear for the plaintiffs. I can tell you who will appear second, third, or eight, or whatever other number you prefer. I can tell you the anticipated length of direct examination for each and every one of the witnesses and the estimated length of cross-examination, both of which have been disclosed to the court and shared with opposing counsel. Three plaintiffs’ witnesses will not appear in person but will participate by video de bene esse deposition. The plaintiff will present four expert witnesses. Two plaintiffs’ witnesses will be hostile or adverse. Seventy-eight exhibits have been submitted by the plaintiffs as evidence. The defendants have designated an additional 112. I could go on. To exhaustion.

The point is this: All this stuff has been disclosed, reviewed, digested, negotiated, discussed, briefed, argued, anguished over, wept in beers about, articulated in endless pre-trial hearings, and ultimately entered by the Court. It has been read, re-read, read standing on one’s head, read in a mirror for secret meanings, played backward for nefarious underpinnings like the Beatles’ White Album, dreamt about in dreams of grandeur and in nightmares, mostly digested, and mostly understood.

Counsel are primed and ready for the fight.

There will be surprises to be sure. Invariably, a witness will say something she or he has never said before. Maybe even something she or he has never thought of before. Light will be shined in the dark recesses of the evidence. Someone will put two and two together and make five. But like the game of football, the dimensions of the field are known, the players scouted, the training films digested, and the rules of evidence and procedure committed to the limbic bundles of the deep, deep, deep white matter of our brains.

Oh, a friend recently asked me, you already know how long the trial will be? 

Yep. That and a whole lot more. 

Rohn K. Robbins is an attorney licensed before the Bars of Colorado and California who practices Of Counsel in the Vail Valley with the law firm of Caplan & Earnest, 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 at His novels, “How to Raise a Shark (an apocryphal tale),” “The Stone Minder’s Daughter,” and “Why I Walk so Slow” are currently available at fine booksellers.    

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