A Trial Lawyer’s Perspective: The Wone Civil Trial & Shakespeare
Our thanks to regular reader Bruce for today’s guest post. An attorney himself and noted contrarian on this case and evidence, Bruce talks about what to expect at the civil trial including the lawyerly theatrics.
“All the world’s a stage, and all the men and women merely players: They have their exits and their entrances;” -William Shakespeare (from As You Like It)
Most people don’t know that a court trial (like the up-coming civil case by Mrs. Wone against the Swann 3) is very scripted, much like a play.
Juries usually don’t know this, and we, as outside viewers of the day to day happenings in a trial, aren’t aware of this either. But the attorneys and the judge know well that what happens at trial is very comparable to theater.
While surprises can and do happen at trials, surprises happen much less often than you might suspect, and they are usually attributable to attorney error or a witness not following his or her attorney’s advice.
A witness breaking down on the stand and yelling “I did it!” is mostly confined to the dramatics presented in TV shows, movies and live theater, not civil jury trials. Don’t expect that kind of theatrics at the Wone civil trial.
There are, in my view, two primary reasons for the “theater-like” quality of civil jury trials: (1) the fact that attorneys are extremely “risk adverse,” and (2) the overwhelming use of depositions in the discovery phase of any civil case.
Attorneys are risk adverse. Every trial, no matter how small or important, involves “high stakes” to the participants. No lawyer likes to lose a case. The parties themselves are generally at arms over even small disputes that end up in a trial – it is just human nature.
In the Wone case in particular, “high stakes” come naturally, just from the facts that Mrs. Wone is asking for $20 million, the allegations contain accusations of the Swann 3’s involvement in the death of Robert Wone, and the “scarlet letter” of a liability judgment and collection attempts will last for many years against the Swann 3 if they, or any of them, are found liable at trial.
“A trial is theater. It is a performance. The attorneys, clients, witnesses and judge are the actors, and the jury is the audience. The star of the show will vary with each trial and is largely a function of trial strategy.”
-the Trial Tips Forum (Trial Tips For Trial Lawyers 2009)
Most trials are centered on parties’ and witnesses’ testimony from the witness stand. Law students who take “trial advocacy” and “evidence” classes are usually instructed on a Golden Rule: Do not ask anyone on the witness stand a question to which the questioning attorney does not already know the answer. Stories are legion of that “one question too many” off the script to someone on the witness stand that results in an answer ruining the case for the client of the questioning attorney. And it is a real temptation for the attorneys to ask that brilliant question that comes to him or her, usually right at the end of the witnesses’ cross-examination. But a reckless attorney is of no value to a client.
So how can an attorney keep “on script” in questioning witnesses?
Depositions. Depositions are the most used of the “discovery tools” available to attorneys in preparing a case for trial, and are the primary reason that trials are like plays. No judge will allow a witness to take the stand at trial without allowing the opposing counsel to take the deposition of that witness beforehand. Depositions are the “meat and potatoes” of the work done by attorneys prior to trial.
There are other “discovery tools” available, including interrogatories (written questions to the opposing party, demanding written answers), requests for production of documents (demands for the opposing party and opposing attorney to produce documents relevant to the case) and requests for admissions (written statements to the opposing party, with a demand that the opposing party admit, deny or set forth allowable reasons why the party cannot admit or deny the statements).
These can and do produce valuable information. But the problem with each of them is that responses are all written and/or overseen by the attorneys who represent the party to whom the discovery is directed, and simply signed by their client, allowing for the inclusion of legal objections and attorney “games” in making non-responsive answers.
Depositions are different from the other “discovery tools” in that depositions result in the opposing party or witness, and not their attorneys, answering under oath questions put to them by the opposing attorney. Usually, only all of the attorneys in the case, a court reporter (to record the proceeds in Q and A format), and the person whose deposition is being taken attend a deposition. However, Mrs. Wone and any or all of the Swann 3 can attend depositions. But not as participants, only as observers.
Depositions are taken away from the courthouse, usually in a conference room at the office of the attorney who has called for the deposition and is doing the questioning. A party or a witness will likely have their own attorney sitting next to them, and those attorneys can place objections “on the record,” and stop the deposition if it becomes harassing. But their client has to generally answer the questions presented, without interception or interference by their attorneys.
In preparing my client for a deposition, I of course go over with the client what questions to expect and help them formulate truthful answers to those anticipated questions. But I first describe the procedure of depositions generally, and then I explain why the depositions are taken. There are 3 primary reasons:
(1) The opposing attorney wants to obtain all the facts and opinions which the party or witness knows about the case. The information provided may give the opposing attorney new avenues to obtain further information;
(2) The opposing attorney wants to “lock in” the party or witness to the facts and opinions they express at the deposition, so that the party or witness will not testify under oath differently at trial. If they do so, the opposing attorney will “impeach” their credibility on the witness stand in front of the jury, by referring to their testimony on the same subject at the deposition, also taken under oath; and
(3) The opposing attorney wants to “scope out” the witness or party during the deposition to determine if the witness will make a good presentation to the jury and whether the opposing attorney might get them to become emotional or uncontrollable at the trial.
At the trial, the opposing attorney will not (or should not) ask any question of the party or witness on the witness stand that attorneys did not ask during that party’s or witness’s deposition. The party or witness studies carefully the transcript of their deposition before getting on the witness stand, so as not to answer any question differently than how they answered at the deposition, and such that they can’t be “impeached” in front of the jury.
So, as you can see, attorneys should not be cavalier about depositions and must prepare very carefully before looking the party or witness in the eye and asking their questions at a deposition. The careful attorney representing the party or witness whose deposition is being taken will carefully prepare his or her client so that the client knows what to expect, and will make a good impression at the deposition.
There are other parts of a civil trial that are not really scripted in the same manner as court testimony from the witness stand, including “Opening Statements”(where each of the attorneys get to stand before the jury and tell the jury what they expect the jury to see and hear during the trial) and “Closing Arguments”(where the attorneys can essentially argue or present to the jury exactly why the jury should find in favor of their client), and maybe in the future we can have posts directed to those and other parts of a civil trial.
But even the “Opening Statement” and “Closing Arguments, and those other parts of a trial can display similarities to an actor preparing for and performing a theatrical production.
Shakespeare was obviously not referring to court trials in his quote at the beginning of this post, but, like with many of his words, his language easily applies to the modern world, and especially to the “playing out” of a civil trial.
“Every trial is theater and every trial lawyer is a producer of a good, bad or indifferent play.”
-Federal District Judge Simon H. Rifkind (S.D.N.Y.) (quote from 1949)
Programming Note: The ‘Anacostia Dialogues’ resume later this week.