grade. Now it’ s real. It’ s for money! It’ s for the client.
Don’ t Be Afraid Of A Video Camera
In our office, even though I have tried more than 500 jury trials to verdict, we still practice and practice our opening statements and closing arguments. By the time my partner Kevin gives the opening, it has been videotaped and critiqued at least a half dozen times.
Credibility
Think of jury trials as a gestalt involving the generation, acquisition, consolidation, and utilization of credibility.( This is what Bill Wheatley was talking about.) Yes, there is a process going on as you wade through the mechanics of jury selection, opening, evidence, closing, and the instructions. However, underneath this elaborate process is another game, one that’ s much more primitive and visceral. It’ s lawyers competing to win the battle of trust. You may not be able to see credibility, but you certainly know when someone doesn’ t have it. Without credibility, it doesn’ t matter what you think or if you and your client are right. Why? Because unless you are believable, nobody cares what you think, and if nobody cares what you think or say, then it really doesn’ t much matter whether you’ re right or wrong, does it?
Quit Whining
Judges can be heavy-handed and intimidating. When you hear a judge say“ Well, that would never be allowed in my courtroom,” or worse,“ That would never happen in my courtroom,” at least you know who you’ re in front of.
Respectfully make your record and then do what you’ re told to do. A good portion of the time, they’ re right, and when they aren’ t, well …, they’ re still right! Now you know what the saying“ Equity is the length of the chancellor’ s foot” really means. Being a trial lawyer is not for the faint of heart. You have to be hardy, strong, and adaptable. Try to use the judge’ s abrasive attributes to your advantage. View every problem as an opportunity. In my experience, tough, mean judges treat you much better when: a) you show up early; b) you correctly pronounce the judge’ s name; c) you are completely prepared; d) you are familiar with their courtroom procedures; and e) perhaps most important, you are respectful to their staff. So maybe the judge is having a bad day. Generally, I find they are equally hard on everyone, but particularly so to those who deserve it the most. If the judge is giving you a little extra, ask yourself what you may have done to earn it, then quit whining and go to work. Stick your butt up, your head down, and start picking grapes as fast as you can. Try and do better. Draw a deep breath and try to stand back from your feelings. Remember, this too will pass.
TO THE BYRDS AND MR. RINGO
Let me close by sharing with you two experiences that continue to inspire me years later. Once, while in Bend during the mideighties, I saw a sign advertising The Byrds in concert on a Thursday night. They were between shows on their way North to the Tacoma Dome. I couldn’ t believe it. The Byrds! In Bend, Oregon!
There were 26 people in the audience that night. I counted them. The band came out. The house was all but empty. The lead singer, Roger McGuinn, began the show by saying,“ We are the Byrds. Every night, we do a better show than we have ever done before.” They rocked, they rolled, and they dripped sweat. It was fantastic. In a small town, with barely two dozen paying customers, they put on a show I will never forget. They taught me something about what it meant to be a real professional, irrespective of the size of my case.
If I have trouble getting motivated when doing a smaller case, I think of the Byrds. I might even pause and play one of their CDs. When I am through, it is easy to remember that I too am a professional, and therefore in every one of my trials, no matter what the size of the prayer, I will always bring my“ A” game and do my best.
My last story is about my longtime friend and mentor, Bob Ringo of Corvallis. Bob retired a few years ago. This trial occurred back in the mid-seventies. I had been out of law school 2 – 3 years. Things came pretty easily for me. I was winning most of my drunk driving defenses. I didn’ t need to prepare much. One afternoon I was sitting in the back of the Corvallis Municipal Court waiting for the arraignment of one of my clients. I was reading a sports page below the benches so the judge wouldn’ t see me.
There was a shoplifting ticket being tried to the bench. The defense attorney was a little guy. I looked up in the middle of his cross-examination of the store manager. The cross was so intense the store manager actually had a heart attack. They stopped the trial, declared a mistrial, and packed him out to a waiting ambulance. With the siren of the ambulance fading into the background, I approached the clerk and asked who the lawyer was. She said,“ Bob Ringo.” Whoa! I had heard of him, and now I had seen him. He was a big-time lawyer. What was he doing here in a municipal court, defending a misdemeanor shoplifting ticket? I don’ t know, but one thing was obvious: Mr. Ringo was giving it everything he had.
I think of Bob often, with much fondness and respect. Thank you.
This article was originally published in Litigation Journal, Fall 2008.
Bill Barton is a nationally recognized trial lawyer and founding partner of Barton Trial Attorneys, where he represents clients in complex injury and civil rights litigation. With more than three decades of courtroom experience, Bill has tried cases in state and federal courts across the country and is sought after as a speaker and teacher on trial advocacy. His book,“ Recovering for Psychological Injuries,” is widely regarded as an authoritative resource on the assessment, presentation, and proof of mental and emotional harm claims.
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