I shake my head and smile, now at the Bar 50 years, at the many humiliating mistakes I have made, particularly as a young lawyer. For me, the saving graces are the lessons I have learned along the way. I would like to share three of them with you.
Don’t believe everything that your client tells you.
Decades ago, a senior partner said to me, “So you think you are Clarence Darrow?” My response is, “Well, I am going to be.” “Here’s a case for you,” he says. “Our client has a speeding ticket. Represent her. Win the case.”
I meet Selma Jones in my closet-like office and know enough to ask about her driving record. She assures me it is perfect, and that she has never received any tickets, particularly speeding.
“Great, I am going to get you off, Mrs. Jones!” I say, enthusiastically.
The day arrives. The courtroom is packed. Finally, our case is called. As we walk forward, Mrs. Jones grabs me by the shoulders. “Honey, we have a problem.”
“What’s wrong,” I ask. “Are you ill?”
“No, but that is the same judge I had last month, who smacked me hard with many points, and said that if he ever saw me again, he would yank my license!”
Sure enough, her license is revoked.
I return to the office, humbled and disappointed that I cannot share a great victory with the senior partner who assigned me the case. Remember: Independently verify the facts of your case, or seek corroboration.
Long ago, I was trying a nonjury case. While questioning a witness on direct examination, I suddenly raise my hand. The judge looks at me and firmly states, “What does this mean, Mr. Sandler?”
“Your Honor, I have a question.”
“Counsel, this is not a classroom,” the judge says, sternly. “This is a courtroom. If you have a question, you say, ‘Excuse me, Your Honor, may I approach the bench?’”
Meekly, I say, “Excuse me, Your Honor, may I please approach the bench?”
“You may not,” he says, bluntly.
“But, Your Honor, I don’t know what to do. I have this document in my hand and forgot how to move it into evidence.”
The judge hits himself gently on the head with the palm of his hand. “I have seen it all,” he says, turning to opposing counsel. “I am going to take a 15-minute recess. Please show Mr. Sandler how to introduce and authenticate an exhibit in court.”
Before he closes the door to his chambers, he says, “And let Mr. Sandler practice. Take the witness stand, and let him practice authenticating the exhibit.”
The embarrassment of the time has faded, but the lesson learned has stayed: Prepare, prepare, prepare. I should have anticipated the need to work with exhibits in court. I should have appreciated the problem and resolved the issue before trial.
Know the judge.
It was my first criminal case, a murder trial in 1972. A plea of guilty is entered, and the day arrives for the disposition of the case. I approach the bench, as my client is led into the courtroom by the U.S. Marshal. The judge begins to sentence.
As I listen, I say, “Excuse me, Your Honor.”
The judge leans forward and hollers at me. “Excuse me! What do you mean by interrupting me?” “I am sorry, Your Honor,” I respond. “Shouldn’t we read my client his rights before we sentence him?”
“We are not sentencing him. I am sentencing him!” the judge responds in an angry tone, intimidating me. “Furthermore, “look at your client.”
I am stunned. He repeats, “Look at your client, do you see him?”
“Yes, Your Honor, I do.”
“Well he knows more about the law than you, and he also has been in court more than you. May I please proceed without any further interruptions?”
The judge completes the sentencing. Looking at me standing there, nervous and embarrassed, he says, “Now this concludes the case. Go with the U.S. marshal.”
I then proceed to walk toward the U.S. marshal. The judge screams at the top of his voice — to my dismay, but to the pure delight of the room full of lawyers. “Not you, Mr. Sandler, you don’t go with the U.S. marshal. Your client goes to jail with the U.S. marshal. You, I hope, go back to your office, and study more law.”
With my head down, I walk quickly to exit the court, as laughter erupts in the courtroom. The valuable lesson I learned that day was, before going to court, learn about the judge’s style, and likes and dislikes, particular courtroom policies.
This article is derived from “The Fine Art of Trial Advocacy: The Young Lawyer’s Resource for Success” (American Bar Association, 2021).
Paul Mark Sandler, trial lawyer and author, can be reached at firstname.lastname@example.org.