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University of Oklahoma College of Law
Swank, David

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
·         Continuances
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.
·         Ju

§  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.