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The Art of Trial
Unfortunately, because of the contemporary trend of alternative methods of dispute resolution such as media- tion, negotiation, and arbitration, I find many of my peer attorneys reluctant to argue before a judge and jury and too milquetoast about confrontation. Instead of being zealous advocates for their clients, they are timid and courtroom averse. Lawyers for some firms allow their trial skills to rust and instead come to rely on advertising and deceptive statistics to attract clients and keep their firms profitable. They market themselves to those who have no legal training and who are persuadable by gimmicks such as repetitive slogans and the “bandwagon effect”; they talk about the number of clients represented and settlements, rather than their cases won. In doing so, they diminish the concept of attorney as a profession and turn it into a consumer product.
A case’s outcome depends upon the quality of the legal team representing it. Particularly when the case involves an insurance company or a government agency, I have found that a legal team cannot reach an optimal resolution without forcefully communicating its eager willingness to go to trial. Banks and Jones distinguishes itself from the more than 3,000 other attorneys in Knoxville in this criti- cal regard, and, consequently, handles a substantial share of the Knoxville market.
Few events have the potential to affect an individual’s or family’s life more than a courtroom verdict. It is impera- tive, therefore, that when going to trial you have as your advocate an attorney who is unwilling to compromise your personal interest for the sake of a quick and easy buck. To me selecting an attorney is analogous to hiring a physi- cian because the stakes are just as high. You would not choose a surgeon because his or her advertisements had the catchiest slogan or the prettiest television commer- cials but would instead want an experienced veteran who understands the medical procedure and has performed it countless times in the operating room. Clearly, you would not want a physician who feared prescribing the most aggressive and effective treatment because of not having enough personal experience with it and the confidence
of knowing that the operation had saved the lives of hun- dreds of past patients.
To be sure, prevailing in the courtroom does require the preparation and hard work Mr. Nizer alludes to. Great trial lawyers outwork their opponents and love applying their skills, so that they often put in 80 or perhaps even 90 hours of effort in a week. That relentless drive comes from a desire to see justice done and a sense of the professional responsibility and service they owe to their client.
Unsurprisingly to me, according to statistics cited in The Tennessean, genuine trial lawyers are increasingly rare in this state. For example, two attorneys quoted by the newspa-
per reported that whereas they used to argue multiple trials in a week if not in a day, nowadays they rarely have more than one a year. For the most recent year reported, 45 out of 90 counties in Tennessee did not have a single jury trial in which plaintiffs prevailed! In contrast, I personally handled multiple jury trials each of my 25 years of practice.
The Tennessean quotes Nashville attorney Kathryn Bar- nett as saying that lawyers unaccustomed to going to trial are more prone to make mistakes in the earlier stages of the process: “If you don’t try cases, then it’s difficult to under- stand the importance of all the steps along the way.”
I concur with my colleague. In my 25 years of trial experience beginning only 11 days after I finished law school, I have learned that the man or woman you choose to represent you in court needs to be the sharp end of your sword. Their strength cannot be what I call churning files
or “book smarts” alone, but they must have applied their legal education and training – and had it challenged – in the adversarial arena of an actual court.
Here are some key elements of the Art of Trial that can only be learned and practiced in the courtroom:
Jury Selection
The inexperienced trial attorney believes that the point
of jury selection is to ferret out any possible bias in a juror because that basic level of scrutiny is the legal standard. In practice, however, entire cases can be won or lost in jury selection, as any experienced trial lawyer knows. Clarence Darrow, who defended John Scopes for teaching evolution, wrote, “Everything pertaining to the prospective juror needs to be questioned and weighed: his nationality, his business, religion, politics, social standing, family ties, friends, habits of life and thought...the juror’s method of speech, the kind of clothes he wears, the style of haircut, and, above all, his business associates, residence, and origin.”
Likewise, Mr. Nizer said of jury selection that an attorney cannot pick the judge, but he or she can pick the jurors and should take advantage of that fact, mostly by trying to sense whether a personal connection exists between the attorney and juror during the initial ques- tioning. To do so requires thoughtful, probing questions and a practiced ease at asking them.
What I have found about jury selection in my years of practice is that it necessitates understanding human nature and psychology. Hence, the more pools of jurors an attorney has questioned, the greater his or her skill will become in being able to read a juror’s psychology and disposition from nonverbal clues and only a few trenchant inquiries.
Examining Witnesses
To once more quote Mr. Nizer: “Truth never walks into a courtroom. It never flies in through the window. It must