August 8, 2023

Podcast - The Unwritten Rules of Trial Practice

The Trial Lawyer's Handbook: A Courtroom Preparation Podcast Series

In the first episode of his "The Trial Lawyer's Handbook" podcast series, litigation attorney Dan Small breaks down the unwritten rules of trial practice that must be learned through experience and observation over time. Mr. Small emphasizes that these "rules" are integral to mastering the art of trial law. Listen to this podcast for key steps on how to feel confident and prepared in the courtroom.

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Mr. Small is also the author of the new American Bar Association (ABA) book Lessons Learned from a Life on Trial: Landmark Cases from a Veteran Litigator and what They Can Teach Trial Lawyers.

Most trial practice guides start with the written rules, but let’s flip the script here. In every walk of life, there are unwritten rules that must be learned through experience, observation or training.

So it is with trial practice. You can learn the rules of evidence and the rules of procedure, but much of what happens in court is governed either by how those rules are applied in practice or by the unwritten rules.

A Look Inside the Unwritten Rules

For example, there’s no specific rule that says you must call the judge "Your Honor," but you nonetheless would be well advised to do so.

There are unwritten rules covering every aspect of trials and the courtroom. Some are hard and fast requirements, some are more flexible.

Some are rules of protocol, such as where and how to sit or stand.

Some are rules of courtesy, such as how and when to address the court, counsel or witnesses.

Some involve control of the courtroom, or the process itself, and vary widely from judge to judge.

Some are a matter of regional practice. For example, what is permissible in a closing argument varies enormously in different parts of the country.

Some are not really rules, but common-sense guidelines, incorporating practical advice based on experience.

Take, for example, the "rule" that you should never ask a non-leading question on cross-examination. It’s not a real "rule." Certainly you can violate it, and it’s sometimes desirable to do so. But you need to know that the “rule” exists, and the reasons for it, because there are good ones, and troublesome consequences are likely to follow if you violate it.

Some unwritten rules are idiosyncratic to a particular courtroom or judge.

Two years out of law school, I was trying a criminal case as a federal prosecutor. Standing at the podium in an old, wood-paneled courtroom, I was questioning the first witness. I walked over to my table to pick up a document and leaned against the table to ask a few questions from there. Bam! Down came the gavel, and the judge ordered counsel to sidebar. I was devastated I had lost my case.

But not really. The judge leaned over and issued a stern warning: "Mr. Small, we don’t lean in my courtroom, we stand at the podium!"

I spent the rest of the month-long trial behind the podium, first with both hands on it, then gradually letting loose a little bit. But having learned an important lesson: In that courtroom, you had to stand up at the podium, and stand up straight.

How Is a New Lawyer Meant to Learn All of This?

How is any lawyer, especially a new one, supposed to learn all this nonsense?

For starters, there are some written guides. For example, the Massachusetts federal court has a helpful book called The U.S. District Court Speaks, in which every judge and magistrate judge responds to a long series of questions covering pre-trial matters and general courtroom practice. A number of other courts have similar reference books.

The answers are a helpful beginning to understanding some of the preferred procedures before a particular judge. If you’re lucky, the judge you’re interested in may have written articles on trials or related issues, or issued opinions on courtroom practice. Read them.

Of course, nothing can replace actual experience.

The Importance of Gaining Experience

If you don’t have experience before a particular judge, which describes most lawyers, most of the time, then ask.

Ask around your office, ask colleagues and friends, ask lawyers who have appeared before the judge. Ask wherever you can find lawyers who have firsthand (or even secondhand) experience, both generally and in the particular courtroom you’re interested in.

Listen and learn. Don’t take every comment at face value. Lawyers can develop strong opinions about judges, and that can seriously color the value of their insights. All the more reason to seek out as many different sources as possible.

And go. Every courthouse is open to the public. With rare exceptions, every courtroom has an available seat. Find out when your judge is conducting the type of proceeding you’re interested in and go observe. Watch the lawyers, watch the judge, everyone in the courtroom. How will your case compare? What can you learn that will benefit you?

A common expression among trial lawyers is that "judges can hurt you, but clerks can kill you!" Whether that’s true or not, it is surprising how many lawyers fail to see courtroom personnel as the important resources that they are.

Clerks, court reporters and court officers have jobs to do and may have limited time to talk with you. And all have limits on what they can talk about. Yet all of them experience, on a daily basis, the same courtroom environment you are about to enter.

Of course, you should recognize that they have jobs to do. But don’t be shy about asking them questions based on their responsibilities, or even their observations or commonsense advice.

Years ago, in his book All I Really Need to Know I Learned in Kindergarten, Robert Fulghum talked about the many, sometimes mysterious and confusing, unwritten rules of life that we all learn at an early age. We learn them by watching, by listening and by asking.

So it is with any new environment, including the courtroom. You cannot function effectively in court without knowing the unwritten rules.

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