Podcast - Finding Common Ground
In this episode of "The Trial Lawyer's Handbook" podcast series, litigation attorney Dan Small recounts the challenges he faced during the Farmers Export grain elevator explosion trial. He emphasizes the importance of purposeful actions in the courtroom, from how a lawyer speaks and moves to how they question witnesses. Mr. Small reflects on a pivotal moment with the presiding judge, where a minor misstep taught him a significant lesson about courtroom etiquette and the balance of control between a lawyer and a judge. Through this experience, he learned the art of blending expression with control, respecting courtroom rules while finding common ground with the judge. This episode illustrates the importance of knowing one's court and adapting to local customs to work harmoniously with judges, juries and counsel to achieve a positive outcome.
Listen to more episodes of The Trial Lawyer's Handbook here.
This podcast episode was adapted from Mr. Small's book Lessons Learned from a Life on Trial: Landmark Cases from a Veteran Litigator and What They Can Teach Trial Lawyers.
Daniel Small: Everything we do in a courtroom should mean something. How you speak, how you act, how you move, how you ask questions — none of that should be random. It should all have purpose and meaning. But how do you hold yourself in a situation like the Farmers Export grain elevator explosion trial we've been talking about in prior episodes? I was questioning workers who themselves were questioning why so many friends died and they didn't. Questioning the coroner about his many awful pictures to show the progression of the explosion. It was a real challenge.
Layer on top of that one of the basic conflicts of a trial: The lawyer is trying the case and wants to be in control of the courtroom. Ultimately, though, the judge controls the courtroom. But judges vary widely. Some will largely sit back and let the lawyers try their case. Some exercise tight control at every step. Some are in the middle. So a trial lawyer has to know their judge, and understand and adapt to different courtroom environments. I learned this lesson the second day of the month-long Farmers Export trial.
I was questioning a witness on direct examination from the podium and realized I needed a document from my counsel table. I walked the couple steps to the table, picked up the document and continued questioning the witness, with the document in one hand and the other hand resting lightly on the table. I had a nice rhythm going. Maybe I could learn this trial thing after all, despite my complete lack of experience.
BAM! Judge Gibson pounded his gavel so loudly it shocked everyone. Sounded like a rifle shot. "Sidebar!" he said angrily. And I knew it was over: Two days into my first big trial, and I had already screwed it up. I didn't know how or why. But clearly the case I cared about was lost. I would be fired from the job I loved. Maybe I could go back to bartending or something. All that and much more went through my head as I slowly walked up to the sidebar.
Judge Gibson leaned over, looked at me gravely and said, "Mr. Small, I know that you haven't tried many cases in this district." Well, truth be told, I hadn't tried many cases in any district. "But we don't lean in my courtroom, against your table or anything else. You will stand up straight, behind the podium! Do you understand?" "Yes, your Honor," I mumbled and stood frozen at the sidebar. What happens next? Handcuffs? Directed verdict? Contempt?
As I didn't say or do anything else, we stood there awkwardly for a bit, and Judge Gibson finally gave me an odd look, and he said, "That is all." That is all? That is all? Really? No three words have ever given me greater joy. The case was not lost. I would not be fired. Bartending could wait. I had survived the pounding of the gavel and lived to fight another day. I needed to learn from this traumatic experience.
And so, I adapted. I learned to blend expression with control. At first, I kept both hands gripping the podium for dear life and mumbled my questions robotically. But then just one hand. Then no hands, moving for emphasis, just keeping behind the podium. I realized that like everything else in the courtroom, the podium still allowed for endless forms of expression: in tone, in volume, in pace, the works. Indeed, it added one more prop to the show. There were plenty more loud gavels during that month-long, hotly contested trial, but none related to the podium. Judge Gibson and I had reached common ground: I would respect his rule about staying behind the podium, and he would let me try my case. And it worked.
Trials are a constant search for common ground: with the judge, the jury, the witness and even opposing counsel. Two days into my first big trial, wise old Judge Gibson taught me that lesson, and I will be forever grateful.