Lawyer’s ‘life on trial’ a learning experience for others

Trials are hard work. The popular image of a lawyer getting up and winging it in court is, in reality, often an invitation for disaster.

Certainly there are moments in any trial that require spontaneity, but spontaneity generally succeeds only with careful preparation.

The famous trial lawyer Vincent Bugliosi put it well: “It’s simply not possible to powerfully articulate a great number of points, one immediately following another, extemporaneously. There is a best way to make a point, and to find it takes time and sweat on the yellow pad. ”

I’ve been fortunate enough to have been involved in a number of challenging and fascinating trials over the years, both as a prosecutor and in private practice. My hope from this series of columns — collected from my recently published book “Lessons Learned from a Life on Trial” — is that trial lawyers at all levels of experience can benefit from the time and sweat that I poured into these real challenges, in real cases.

I have no magic wand. Undoubtedly, some of you would have handled some of these challenges differently or better. But that, too, is part of the learning experience. I was fortunate enough to have these fascinating cases. I leave it to the reader to enjoy the stories and to figure out what lessons from them are helpful to you.

The word “trial” — “Act or process of testing” — is from Anglo-Fr. trial, a noun formed from triet “to try.” Try: from Gallo-Rom. triare, at its most basic sense: “separate out (the good) by examination.”

This series of columns attempts to entertain, explore and share lessons from this process of examination. Throughout many of these stories and lessons learned run three general core themes:

1. Know your court.
2. Tell your story.
3. Do the right thing.

I was fortunate to learn these core themes at the very beginning of my career in, of all places, the U.S. Magistrate’s Court in Hyattsville, Maryland.

Generally, federal magistrates work in U.S. courthouses and take care of a wide range of hearings, motions, discovery and other matters.

But in the Washington, D.C., area, there are so many federal roads, parks, buildings, you name it, that they created a separate Magistrate’s Court for Hyattsville. That small courthouse had a full-time magistrate, court reporter, clerk’s office, and other essential parts of a working courthouse. It was basically a permanent traffic and misdemeanor court. However, there was no full-time prosecutor.

At some point, the magistrate agreed with the U.S. Department of Justice to have a program in which new lawyers at the department would come and act as the prosecutor in his court for a period of time, as training. My vague recollection is that it was six weeks.

It was quite an intimidating experience at first. You would get in at about 7 or 8 in the morning and there would be a stack of 50 or more case files on your desk. You would spend the next hour or two walking through the files with the various law enforcement officers who were involved in the cases. They would be from an alphabet soup range of federal enforcement agencies. The point was to get a feel for which cases were important, which officers you could best rely on, and what the real issues were.

While I studied the files and met with the officers, a crowd would start to build in the courtroom and the outside corridor with defendants, families, friends, lawyers and others, waiting for court to get underway.

At some point, I would walk out into the courtroom and introduce myself: “I am Assistant United States Attorney Daniel Small. I will be handling all the cases for the government today. If any of you would like to ‘discuss your case’ before court begins, please form a line starting at the bar.”

And a long line would spill out of the courtroom and into the hallway. One by one, you would meet with the defendants and their lawyer, if they had one.

Each defendant was different. Some people wanted to object, until you suggested that objecting was of course their right but it meant that their case would proceed to trial later that day. Some people wanted to give excuses, or at least beg for mercy on the amount of the fine or the points on their insurance.

In the right circumstances — and there was of course an endless variety — there were certain adjustments that I had the freedom to give. Sometimes I would go back into chambers and ask the magistrate for guidance or permission. If we couldn’t resolve the matter, I could simply say that we would put it up for consideration when the judge took the bench.

Soon, the magistrate, who had been in his chambers having his morning coffee and going through his paperwork, would get impatient and come out on the bench. It was an extraordinary experience for a brand-new lawyer.

We would try at least several cases a day. Many trials were little more than “And what happened next, officer?” But it didn’t matter. I was on my feet, looking through case files, reading the law and the witness statements, questioning witnesses, trying cases, and resolving matters.

In cases in which defendants had questions, they would be dealt with by the magistrate. If the magistrate, in going through his list, got to someone who clearly had not had an opportunity to “discuss their case” with me, he would suggest that he put the case off until after the next break so that they could do so.

It was real justice, for real people. At least that was our goal. Everyone who worked in the courthouse knew that I was just a beginner, and many of them were extraordinarily helpful to me — particularly the magistrate, from whom I learned a great deal. That included the three core themes.

In the next few columns, I’ll discuss each of those themes: know your court, tell your story, and do the right thing. Together, they form the heart and soul of this challenging world of trials.

Daniel I. Small is a litigation partner in the Boston and Miami offices of Holland & Knight. A former federal prosecutor, he is the author of “Lessons Learned from a Life on Trial: Landmark Cases from a Veteran Litigator and What They Can Teach Trial Lawyers,” published this year by the American Bar Association. The above column is adapted from “Lessons Learned,” with permission of the ABA.