See You In Court!

SEE YOU IN COURT

Things Lawyers Know About Trials That YOU Should Too.

A LAYMAN’S GUIDE TO THE COURTROOM

BY

BARRY S. WILLDORF

Attorney at Law

Copyright 2012 Barry S. Willdorf

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SEE YOU IN COURT!

(Things Lawyers Know About Trials That YOU Should Too.)

A LAYMAN’S GUIDE TO THE COURTROOM

COPYRIGHT © 2012

COVER ILLUSTRATION AND DESIGN BY BARRY S. WILLDORF © 2012

All rights reserved. No part of this book may be reproduced or transmitted in any form without written permission from the publisher, except by a reviewer who may quote brief passages for review purposes. If you are reading this book in an electronic format and did not purchase it or win it in a sanctioned contest, you have obtained this book illegally. Illegal copies hurt both the author and the publisher. Please delete this book immediately and purchase it from an authorized seller: i.e. the publisher, A Gauche Press, or through an authorized distributor.

Every day, trials impact the lives of untold numbers of citizens. But the public has only popular images and urban myths to give it an idea of what goes on in a trial. There has been no handy, easy-to-read reference book that explains trial strategy, tactics and the process to non-lawyers — until now. See You In Court fills this void.

ACCLAIM FOR SEE YOU IN COURT

Hear Ye, Hear Ye, All Rise and go immediately to a local bookstore (or computer terminal) to read See You in Court by Barry Willdorf, before you actually have to be in court. Willdorf is a real find: a seasoned, first-rate trial lawyer, who writes in accessible English rather than legalese. His book is a wonderful primer, filled with anecdotes and insights about a system you only think you know. It will make every legal thriller, movie, TV and news report all the more interesting, once you know the inside story. As a bonus, it is not only fun to read, it can literally save you hundreds or even thousands of dollars by answering questions you would otherwise have to ask your own lawyer, while the billable-hour clock runs. Danny Greenberg is former President and Attorney-in-Chief of The Legal Aid Society of New York. He was formerly Director of Clinical Programs at Harvard Law School.

This is an outstanding book. It gives the reader a good picture of how lawsuits proceed in the real world of lawyers and courts. Anyone interested in litigation as a party, witness or observer should read this book if they want to understand the process. Peter C. Carstensen, George H. Young-Bascom Professor of Law, University of Wisconsin Law School

It’s the rare hermit who can make it through life in America these days without ending up as a juror, witness or party to a lawsuit or criminal trial. In See You In Court!, Barry Willdorf, after decades in the legal trenches, has written the essential primer on everything people need to know to understand and survive the tribulations of trials in our litigious society. From explaining the roles played by judges, lawyers, investigators, experts, jurors, and clerks to the basics of evidence, opening statements, witnesses, cross examination, jury instructions, closing arguments and verdicts, Willdorf illuminates it all in an engaging and entertaining style that painlessly demystifying the system and helps dispel various myths and misunderstandings that have undermined confidence in our courts." Stephen Rohde, author of /American Words of Freedom/ and /Freedom of Assembly / past President of both the ACLU of Southern California and the Beverly Hills Bar Association and a founder of Interfaith Communities United for Justice and Peace.

Barry’s book does what all good lawyers should do: make the law accessible to laypersons. Even when you have a good attorney at your side, it is easy to be overwhelmed when dealing with the legal system, and that is especially true for people with disabilities, including HIV/AIDS. With Barry’s lifetime of commitment to representing the underdog, he shows that he has the wit and wisdom-and the heart- to help folks during some of their most vulnerable periods." Bill Hersch, Executive Director of San Francisco’s AIDS LEGAL REFERRAL PANEL.

DISCLAIMER

The purpose of this book is to help the layman navigate the courtroom experience—to understand what is going on. It is neither designed nor intended to be a substitute for professional representation by a licensed attorney. This is not a self-help book in the traditional sense. Every case is unique and only a skilled, experienced attorney can put the pieces of the puzzle together in a way that can spell success. Please do not use this book as an alternative to engaging competent legal counsel to represent you. See You In Court is designed to help you understand what is going on in the courtroom, not to do it yourself.

Barry

DEDICATION

To Eileen McAlister, who became a dear friend to me very late in her life. I am sorry I hadn’t met her sooner and even sorrier that she passed away so quickly. I miss our talks, our lunches and the books she always sent my way.

ACKNOWLEDGMENTS

I began this book in 2008, while on the mend from a stem cell transplant that would hopefully cure me of leukemia. By that time, I had given up most of my law practice and, except for one case that threatened to compete with Bleak House for an example of legal longevity, considered myself retired. I had vetted a draft with readers and want to acknowledge them now. Thank you Iris Bachman, Jane St. John, Chris McNair, Carl Offner and Jane Norling. I had a great literary agent, Krista Goering. I was working on blurbs, recommendations and all the other elements of a formal proposal for a publisher when fate intervened and I relapsed. But it was not simply a relapse; my leukemia returned in a more aggressive form and was threatening to snuff me in six or seven months.

The reason I’m still here and you are reading the words on this page has to do with some of the best medical minds in the world: Drs. David Miklos, Steven Coutre and Aaron Logan, plus some wonderful PAs and nurses at Stanford who are too numerous to mention here. But beyond them is Jennifer King, my donor for both stem cell transplants. While I will be forever grateful to Jennifer for her first donation, it was her second that was above and beyond the call of duty. Not only did she agree to undergo the discomfort and inconvenience of this second procedure, she willingly delayed her plan to become pregnant so that she could do it. Today she and her husband Nate have a beautiful baby, Jacob, who is at least a month younger than he should be because of Jennifer’s gift to me. Whenever you are down on the state of the world or the people who inhabit it, spare a minute to remind yourself that there are people like her.

I was a trial lawyer for more than forty years and I am glad that I got the opportunities that the law provided. The law gave me the opportunity to break bread with farmworkers in their shacks and to dine in exclusive clubs with the 1-percenters. I was able to witness the devastating effects of poverty on the self-esteem and spirit of the poor and the corrupting influences and loss of empathy caused by excessive wealth. I got to defend active duty soldiers and veterans of the Vietnam War. I was able to set standards for the economic value of the loss of a homemaker to a family. I was privileged to help protect the rights and benefits of HIV positive workers. I was able to innovate strategies that helped hold abusive corporate officers personally accountable for their conduct and I got to recover money for large numbers of average people from swindlers of all stripes. So I must acknowledge the law for making those experiences possible.

During my years of practice I got to meet both stars (who need no mention here) and ought-to-be stars who fought (and continue to fight) it out in the trenches, without much notice or recognition but none-the-less with as much skill as any lawyer who has become a household name. I want to mention some of them here because without having known and worked with them, I would be in no position to write this book. First, I want to single out my long-time partner and lifetime friend, Laura Stevens. Then let me thank, in no particular order, some other lawyers who taught me things I have used ever since I first met with them: Bill Osterhoudt, Alex Reisman, Marvin Rous, Norm Zilber, George Dirkes, Alan Bonaparte, John McClintock, Ann Moorman, Michele McGill, Jim McAlister, Tim Coulter, Steve Tullberg, Ken Cloke, Danny Greenberg, Barry Goldstein, Judge Gus Reichbach. I also want to thank a couple of other lawyers who have come to my aid especially in my times of need: Perry Irvine and Aram Antaramian.

Then there are my writing buddies who have contributed to my education as an author. Without their help and encouragement over the years this book would likely be unreadable. Thanks to Jonah Raskin, Ransom Stephens, James Warner, Tamim Ansary, Holly Shumas, Darrend Brown, Stan Goldberg, Frances Lefkowitz and Yanina Gotsulsky.

Finally, last but by no means least, a special shout-out to my wife Bonnie who has been at my side and in my corner 24/7 for the entire time I’ve been a lawyer. Without her, I would be long dead by now.

OUTLINE

PREFACE

ONE: THE DIFFERENCE BETWEEN CRIMINAL AND CIVIL CASES?

1) The Constitutional Distinctions Between Criminal and Civil Cases

2) Indictments and Preliminary Hearings in Criminal Cases

a) Indictments

b) Preliminary Hearings

3) Motions to Throw Out a Civil Case

TWO: WHAT YOU SHOULD KNOW ABOUT THE PLAYERS.

1) The Judge

a) Some Tactics Lawyers Use To Get A Favorable Judge

b) The Realpolitik Of Judging

2) The Lawyers

a) Have Gun Will Travel

b) Is The Lawyer In Court The One In Control Of The Decisions Being Made?

c) How The Average Joe Ends Up With a Celebrity Lawyer.

3) The Parties

a) The Corporate Representative

b) The Client Who Isn’t Really

c) The Wronged Spouse

4) The Jury

a) Who Gets On A Jury, Who Gets Off

b) How We Ended Up With A Jury System

5) The Bailiff

6) The Clerk

7) The Court Reporter

THREE: THE FIELD OF PLAY.

1) Where Will The Game Be Played?

a) Change of Venue

b) Change of Forum

c) Getting to the courtroom

2) The Courtroom

3) Chambers

4) The Jury Deliberation Room

5) The Halls of Justice

FOUR: PRETRIAL MANEUVERS

1) Pre-Trial Publicity

2) Legally Required Exchanges Of Information Before Trial

3) Private Investigators

4) Focus Groups

5) Other Consultants

6) Pre-Trial Motions

7) Trial Briefs

8) Witness and Evidence Lists

FIVE: TRIAL — THE OPENING SALVOS.

1) Picking a jury

2) Preliminary jury instructions

3) Opening Statements

SIX: TRIAL — PUTTING IN THE EVIDENCE.

1) Accommodations for witnesses

2) Telling the Story

3) Showing and Telling Using Evidence

4) The Judge at Trial as the Referee of the Evidence

5) What the heck is hearsay?

6) All they had was circumstantial evidence and I still got convicted!

SEVEN: TRIAL — QUESTIONING THE WITNESSES DURING TRIAL.

1) The Rules For Examining Witnesses

2) Direct Examination

3) Cross-Examination

4) The Ball’s In Your Court Again

5) The Different Kinds of Witnesses

6) How to Judge Whether an Examination is Any Good

7) For The Record

EIGHT: SUMMING UP (Three examples by famous lawyers.)

NINE: TELLING THE JURY THE LAW, THEIR DELIBERATIONS AND VERDICT.

1) Instructing the Jury

2) Jurors’ Deliberations

3) The Verdict

4) Judgments in Non-Jury Trials

5) Punitive Damages

TEN: AFTER TRIAL — NO SMALL DETAILS.

1) Sentencing in Criminal Cases

2) What the Winner has to do to Collect in a Civil Case

3) We’re Confident We’ll Be Vindicated On Appeal

EPILOGUE

INDEX/GLOSSARY

NOTES

AUTHOR’S BIO

SEE YOU IN COURT!

(Things Lawyers Know About Trials That YOU Should Too.)

A LAYMAN’S GUIDE TO THE COURTROOM

PREFACE

Is there a trial in your future? Do you have a case and want to know what to expect if you decide to go to trial, instead of settling? Do you have questions about trials but don’t want to sound dumb? Perhaps you just got your jury notice and want a quick heads up on what goes on behind the scenes. Or maybe it is just that there is a trial you are interested in following — a celebrity charged with murder or an athlete being tried for steroid abuse? You have this urge to form some opinions — to know what you are talking about. And once you get into that courtroom, are you concerned that you won’t really understand what is going on? If for any reason, you are interested in trials and want to know more about how they work, then this book is for you.

A limited knowledge of trials is nothing to be ashamed of. You are not alone. A while back, I was watching Lie to Me, at the time, a very popular and engaging show on television. Two actors, portraying lawyers were having the kind of argument we image lawyers frequently get into with one another. One was a district attorney and the other was a criminal defense attorney. The DA offered a plea deal that the defense attorney rejected. Angrily, the DA pointed an accusatory figure at the defense attorney and threatened: I’ll see you at the Grand Jury.

Later in this book, I will explain in detail the absurdity of that threat. For now, you should know that grand jury proceedings are secret. There isn’t even a judge present when grand juries do what they do, much less a defense attorney. Obviously, the writers of this TV production didn’t know what they were talking about and didn’t bother to find out. But what they wrote was more than just ignorant; it was misinformation. I couldn’t help but cringe when I heard it, wondering how many of my fellow citizens now misunderstood what a grand jury was and were ready to believe that it was something like a trial. After all, you’ve got your word grand which implies a big deal, and you’ve got your word jury.

Many of us hear things like that during our favorite TV shows, movies, or in print media and assume that the authors know what they are talking about. We get a lot of our information and form many opinions based upon such fictitious narratives. But as a general matter, the entertainment industry spices their portraits of trials with myth and misinformation. This short TV dialogue then illustrated a much larger problem and it is the subject of this book.

I have been a trial lawyer for forty years. I have well over 100 trials under my belt and have consulted with thousands. From the questions I have fielded during my career one thing that repeatedly impressed me is how little my clients really knew about trials. Most of their impressions about court came from TV shows like Law and Order, The Practice, or if you are of a certain age, Perry Mason or from movies like A Civil Action, Erin Brockovich, The Verdict and Twelve Angry Men. I couldn’t help being concerned, knowing how little their cases were likely to resemble those portrayals and how difficult it would be to meet the expectations created by popular culture, should they end up in court. I could have spent many hours of my time and a great deal of my clients’ money teaching them about trials, debunking their opinions and pointing out that the popular representations of trials contained lots of inaccuracies, but doing that never made sense.

I can’t recall how many times I wished that there was a short, easy-to-read book that I could recommend to answer their questions about what a trial experience would be like for them. We consult guidebooks when we travel, shop for a home, select a college or university, even when we diet. Having a lawsuit can be just as important. Why, I asked myself, wasn’t there a book that could do for my clients what, let’s say Dr. Atkins did for dieters? I decided I’d have to write it and let the public in on some of the things that lawyers know about trials that they should know too.

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If you are