September 02, 2019

Impressions on Quality of Lawyering: A Student’s Perspective

Kayla Harrington

I recently observed a jury trial in a District Judge's courtroom that taught me a great deal about different lawyering styles and about the many roles a judge has to play during court proceedings. The plaintiff’s attorney seemed overwhelmed and was at times ineffective, while defendants' counsel consisted of a two-lawyer team of very aggressive, almost rude attorneys. The two sides’ styles were in direct opposition, and each had apparent strengths and weaknesses. The Judge did an exemplary job of using her power to try to balance these lawyering styles somewhat, while being fair to both sides and trying to maintain integrity in the courtroom for the jury’s sake. When counsel on both sides kept getting bogged down in their tactics, it seemed like the judge’s job to remind them that a jury was sitting, and that the jury would ultimately decide the outcome of the case. Watching the reactions of the jury to these various strategies was eye-opening for me. Having never served on a jury or seen one operate, I assumed that like me, they would be engaged and excited to be there, with a critical eye toward the proceedings. However in reality, I saw that the jury was fairly tired after several days of trial, and that counsel on both sides failed to keep the jury in mind at critical points, leaving it to the judge to remind them of the jury and try to keep the proceedings on track. I hope not to repeat these lawyers’ mistakes if I ever argue a case before a jury.

The trial concerned a female teacher who was suing the male principal of the school where she had worked for sexual harassment, and for retaliating against her after she filed a claim against him. She also brought a Monell claim against the school, saying administrators violated her civil rights and did not step in to help her even though they knew the teacher was being sexually harassed. Defendants argued that no sexual harassment took place at the school, and that the plaintiff teacher was fired for poor performance.

Plaintiff’s lawyer appeared generally competent and seemed to really care about the case, but he also appeared to be in over his head when he cross-examined witnesses. Everything about him, from his sloppy appearance, to his hot pink shirt and tie (I think he was trying to look sympathetic to women?), to his poorly worded questions, conveyed a sense of not being great at presenting himself or performing for the jury the way an effective lawyer must. Defendants' counsel, seeing an opportunity to throw plaintiff’s counsel off his game, objected to every single question he asked, often baselessly, to interrupt his flow and try to make him flustered. Sometimes this worked, and plaintiff’s counsel would end up having to repeat a question and would do so in a less effective way. Other times it backfired, as defendants' counsel seemed rude and made everything take longer and feel more adversarial, which the judge and the jury did not seem to appreciate.

Finding a balance, the Judge heard every objection from defendants’ counsel, asked for a basis for the objection each time, and only granted the objection if it was valid. If defendants' counsel persisted, she would ask for a sidebar, and try to resolve the issue that way. She frequently reminded counsel on both sides that a jury was sitting, and that their behavior should be becoming of the court. Plaintiff’s lawyer did not issue many objections, but the Judge sometimes appeared to help him in small ways by rephrasing certain issues or giving him the benefit of the doubt to proceed with a line of questioning. However, she did not do any special favors for plaintiff’s counsel. When plaintiff tried to introduce a crucial piece of evidence in the form of a recording of a conversation and defendants' counsel strenuously objected, the Judge stuck to the rules of evidence. She asked for the rules of evidence each side was using to support its view, she held frequent side bars to prevent the jury from overhearing any heated discussions, and she left room for one side or the other to do additional research if they had to. The tape was ultimately not admitted, but the Judge kept open the possibility to introduce it if the witness impeached herself. The witness did not, and so the tape was never heard. The lawyers’ reactions to this major conflict were revealing. Plaintiff’s counsel seemed frustrated and kept giving “come on” gestures to the judge as the witness on the stand artfully dodged his questions about a transcript of that recording by saying she did not recall, or admitting to what she said but saying that she meant the exact opposite of that. The lawyer’s visible frustrations made him a less effective questioner, but his point that the witness on the stand said things in the recording that appeared to directly contradict her current testimony mostly came through. The drama of the questioning appeared to jolt the jury, as they woke up from their near-naps and followed this exchange like a sporting event. Meanwhile, defendants' counsel objected to every single question, often without any basis for doing so, and the witness appeared so coached that the jury seemed suspicious of her testimony. The jury looked like they did not appreciate defendants' counsel’s more obvious efforts to sway them, or possibly deceive them, through such selective testimony.

This encounter taught me a lot about the subtleties of courtroom lawyering. Plaintiff’s counsel’s flustered reaction to the evidence not being admitted showed me how important it is to have a contingency plan, and to prepare for alternative lines of questioning if something you were counting on falls through. What should have been a slam dunk ended up looking more like a hail Mary because of a lack of preparation. And defendants' counsel’s overly aggressive tactics reminded me that juries are made up of people and that people, in general, do not like being lied to or misled, so going too far in coaching a witness so that only a small part of the truth can come though might backfire. If the witness’s selective memory or her explanations that she meant something entirely different than what she said had not sounded so rehearsed, the jury might have been more sympathetic to her. The jury also rolled their eyes at the constant objections by defendants' counsel because many of the jurors looked like they just wanted to go home, and the objections were drawing out the proceedings. I have never been selected for a jury, and I had naively speculated that it would be purely exciting. I see now that I was wrong about that. If I ever argue in front of a jury, I will remember to be respectful of their time and their position.

In the trial I watched, the judge played a big role in maintaining integrity for the jury and reminding the lawyers in the room that the jury was their audience. The Judge was effective and fair. She helped explain things to the jury when absolutely necessary, but mostly took a backseat and focused on enforcing the trial rules and keeping order in the court. The entire experience was an amazing learning opportunity for me. I had never observed a trial before, and I learned so much about what to do once I am a lawyer, and even more about what not to do when arguing in front of a jury.

Kayla Harrington