Lawyering 8/21/14 3:33 PM
Bill Hetherington – Judge of the Court of Civil Appeals Speech – Lecture on Trial Lawyers
· Civility of the practice of law has improved.
· Read the last reading in the packet: Stanford univ. “Dynamics…
· Independence of judiciary is always at threat.
· Why its fun to be a trial lawyer?
· Jeff Foxworthy-funny quotes in court
· Story about Paul Cecil Johnson
· The worst of the worst are the ones the Judge can rely on to tell him the truth.
· As an attorney, it is your duty to know the court system cannot solve all problems. The court helps them resolve their problems. Only the litigants can solve their problems.
· *I truly do find this journey as a search for the truth and so should you.
· Most important thing he said all class.
· Ethical duty: represent your client zealously under the law. Never misrepresent anything to a Judge or jury.
Part 1: General Practice Tips
· When you are practicing in a trial setting, they are all made up of real people made to make the court system work.
· Credibility means everything to how you will be successful be.
· Meet the court clerks first. Then the court reporters then their secretary and baliffs.
· These are the ones that get your case going.
· The people that get your case through the system are the people to make your friends. They are understaffed and overworked.
· Get to know the court rules.
· First thing to do after you meet everyone.
· Ask the secretary’s if the Judge’s have court rules.
· Some district courts have published court rules.
· Judges have local court rules of their own.
· Judge Edo-OJ Simpson judge.
· Lostt control of the courtroom.
· “Do not respond to opposing counsel unless told to”
· Lot of evidence got improperly to the jury.
· If you go to try a case, as a lawyer, I’d adopt this rule “ Do not respond to opposing counsel unless told to”. Most judges do not do that because they aren’t experienced.
· Ask the judge to adopt the rule.
· Important as a lawyer to not be perceived as wasting their time fooling with exhibits.
· Makes jurors and judges happy
· Lawyers must mark every exhibit and have the sticker on there.
· Never mark an exhibit with a letter.
· It upsets a court reporter.
· Always mark them by number.
· Curse of the courthouse
o Judges have to run for office against someone. Negative campaigns. Talk about the addition of cases. Continuances cause a backup of cases. Want civil cases out in a year.
· Ex Parte Orders
o Order obtained without other party.
o Reading a pleading from one side that has not been looked over. You better tell the judge the truth.
o Judge can file a bar complaint 3.3 of code of conduct for attys.
o You must tell the judge both sides, good or bad.
o they are dangerous
· Jury trials are very different from bench trials.
· Jury trial prep is not worth anything in bench trial. Very different.
· Judge has read all types of motions and knows everything.
· 1) Find what the judge knows
· 2) is the case postured as such that it will be tough for a jury and try it to a judge,
o Waive the jury.
§ Too complication, etc.
· Try more cases to a judge more than a jury. Usually a better verdict, much more efficient.
o No opening statements.
· One of the biggest things is whether to use a jury or waive the jury and try it in front of the judge.
· Juries hate a dirty client.
o Prior convicitions, or prior health issues in a civil case.
o If you have a client the jury will not like, waive the jury. Settle the case.
· Judges look for the truth.
· Irving Younger-expert on cross-examination.
· Never ask the “why” question.
· Huge tip for cross-examination technique.
· Jurors love lawyers who can maintain their cool, be professional and be prepared.
· Case preparation: critically important.
§ Or recommend an appellate lawyer.
· Staff lawyers at OK Supreme Court are career positions.
· Supreme Court and how it operates?
o 9 justices.
o Chief Justice elected every 2 years. Lot of work.
o Also, Superintendent over all courts in Ok.
o Like Board of Directors for state court system.
o Power over the Oklahoma Bar Association.
§ Required to be a member
§ Budget as well.
o Meet every Monday and Thursday in conference.
§ Not in July or August.
§ Mondays-consider cases for certiorari
§ They get all appealed cases. Most get sent to court of civil appeals (intermediate).
· Case is then assigned to a justice if given certiorari.
· 5 votes to grant cert.
· SCOTUS-4 votes to grant cert.
· Lot of work goes into deciding whether or not to grant cert.
§ Thursdays-Opinion conferences
· No one else is allowed to be in there. Only 9 justices.
· In conference room, everything is very formal and done by seniority.
o Respect for court and process/law.
o Granted cert in 10-15% of cases.
§ Oral argument-when 5 justices find it to be helpful.
o A lot of reading and writing.-Supreme Court justice.
§ Different from trial judge.
o You have to tailor the opinions and cut them down and their meanings.
· The profession of law is not a business.
· You leave here recognizing this profession is a high calling. History of this profession.
· Ethics is everything. Your reputation is everything. Little forgiveness.
· There are never routine clients.
Questions for him
· Seeing more and more lawyers getting help for appellate work.