Monthly archive

March 2017

Ethics and the Law: Jim Skelton on Trial Experience

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This is an article written by Jim Skelton in 1985 with some very good information for us all. Jim left this world March 8, 2017. Jim had been the Significant Decisions Editor for the Voice and a longtime participant in the TCDLA Huntsville Trial College. Jim helped many lawyers and helped me come up with the idea for the Ethics Committee and hotline to help lawyers. In Jim’s honor, this will be the Ethics article for this issue. (Note: Judge McKay, from East Texas, was a Harris County judge for many years.)

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I always marvel at the expectations of trial judges. Everyone from the Chief Justice of the United States Supreme Court on down complains bitterly about the ignorance of the trial bar. A lot of what they say is true—but what solutions do they offer?

It doesn’t take a great deal of sense to complain. Most folks have that down pat. The hard part is to offer an alternative or come up with a workable solution. It does little good to complain that your blind date is a stringy woman wearing off-brand jeans and a halter top that reveals a midriff with two moles and a fresh abrasion. The key is getting through the evening without killing yourself. Bitching won’t solve the the problem.

A lawyer fresh from law school is much like an ugly blind date, moles and all. But given time and experience, all that can change. Let’s talk a bit about converting moles to “beauty spots.”

The first problem that faces young lawyers is getting experience. They all want trial experience. It’s a Catch-22 problem. You have to have clients to get experience, and you have to have experience to get clients. That’s how the story goes, but I don’t think that is being far-sighted.

A successful trial lawyer is basically a person who has the ability to talk and listen to people, and you don’t have to wait for a trial to get this experience. It should be a daily practice. After all, the people who you meet daily are the ones who make up juries. The only difference is that they are packaged differently. They come in singles in your daily life, whereas they come in panels of thirty-six in your lawyer life. And if you don’t practice relating to them individually, how in the hell can you expect to relate to them when they come in gaggles of thirty-six?

This then is “experience rule” number one. Practice daily the fine art of talking to people. When you go out to eat, always make eye contact with the waitress and have something to say to her other than how you want to torture your stomach. When you buy gas, spend a minute of your time visiting with the gas attendant. See if you can get him to smile or laugh, or if time permits, get him to talk about himself. When you’re shopping, talk to the clerks and get them to talk to you. Remember, a good trial lawyer never meets strangers, just prospective jurors.

Experience rule number two should start with a mirror. Take a good look at yourself. If you’re perceptive you will notice that nature has given you only one mouth and on the other hand has given you two ears. The way most lawyers function, this should be different. We should have three mouths and probably no ears. Why did nature design your head in such a fashion? The answer is simple. You should do twice as much listening as talking. So when you talk to people, listen very carefully to what they say in return because they are telling you about themselves. And if you have sense enough to listen, you will learn a whole bunch about people. Jurors are the same way. If you can get them to talk to you and if you bother to listen to what they have to say, they will tell you a lot about how they think and feel. This comes in very handy if you want to win cases.

My third suggestion is to join an organization that permits you to get some experience in public speaking. You could try your hand at Toastmasters or something similar. Read the Sunday paper. It is full of information about upcoming seminars and places that afford the opportunity for you to practice running your chops. Don’t be proud. I would even speak at a clown convention, if given the opportunity, because every shot at public speaking makes jury trials a bit easier.

My next suggestion is to exploit Class C misdemeanors. Try every one of them, especially those in municipal court. How can you lose? The most that can happen is a $200 fine, so why can’t you use this as a vehicle to get trial experience? The same can be said for JP court. Take these cases to trial. If you want more such trials, go to some of the older lawyers and ask them to send you their traffic cases and those involving municipal and JP courts.

My final suggestion is to take some time off, hang around the courthouse, and watch jury trials. Don’t wait for the so-called “stars” to perform because you may never see a trial. You can also ask some of the more active trial lawyers if they would mind if you sat in with them when they are in trial. Most such lawyers would welcome you if you express an interest. Along the same line—spend some time with some of our more experienced trial judges. Get them to tell you about some of their trial experiences. Whenever I have a moment, I love to visit with Judge McKay. He has a wealth of stories about East Texas lawyers and some of the characters he has met in his trial days. I have never wasted a minute in the time that I have listened to him. I think that it should be required that every young trial lawyer spend some time with Judge McKay. He has a lot of experience, and he’s about half smart too.

Remember, plain old likability makes up for a world of experience. This trait does not come from 10,000 jury trials; it comes from daily living and daily habits. Keep in mind that a musician who practiced only at concerts would soon be out of the music business, and if you are sitting around waiting for jury trials to get “experience,” then you will not be long in the trial business. And I really hope to see you around for a while.

Ethics and the Law: Don’t Act Ugly II

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The following comments are from Ethics Committee member Brent Mayr in response to last month’s column, “Don’t Act Ugly”:

My two cents to add to an already valuable article:

One thing I think we overlook is that for us, as criminal defense attorneys, we are naturally inclined not to snitch. We cross-examine snitches and make them out to be the scum of the earth. And yet the rules require us to do exactly that when we know that another lawyer has committed a violation of the rules that raises a substantial question as to that lawyer’s honesty, trustworthiness, or fitness as a lawyer. So how do we deal with this internal conflict between what the ethics rules require and our innate nature to not want to snitch? I think, first, we have to recognize the conflict. Snitching to gain some advantage is never commendable. We see that with the snitches who testify against our clients on a daily basis. On the other hand, if you see a crime being committed and you do something to intervene to stop that crime, even if it means just calling 911, then it is commendable. You are seen not as a snitch, but as a concerned citizen who cares about protecting others. The comment to the rule emphasizes this, explaining, “Reporting a violation is especially important where the victim is unlikely to discover the offense.”

I think when one is faced with knowledge of another lawyer’s misconduct, we truly have to engage in “self-searching” to determine the reason for acting upon that knowledge. Second, we have to recognize that the rule is designed to maintain the integrity of our pro­fession. If we report petty complaints for petty reasons or make serious accusations for ma­licious reasons, this purpose is defeated and we just look like a bunch of whiny sissies or selfish pricks. But if we see or learn of another lawyer doing something and ask ourselves, “What would the general public think if they learned that this lawyer was doing ____,” and it causes us to shiver, that’s when the call definitely needs to be made to the State Bar. Third, and finally, I think we need to remember the maxim, “What goes around, comes around.” At this time, a number of complaints are being leveled against a number of prosecutors and former prosecutors. While generally there has been cordiality between both sides of the bar, reporting what is believed to be an ethical violation on a member on the other side of the bar, disrupts that cordiality. Instead of battling in the courtroom, the war spreads outside the courtroom. The next thing you know, several members of the defense bar are getting letters from the State Bar. Clients get harsher offers, and then next thing you know, we’re having to resort to our appellate courts for assistance. Just like we, as criminal defense attorneys, must deal with the conflict between what the rules require and our nature drives us to do and try to maintain a balance between the two, I think we need to mindful of the peace and balance between opposite sides of the bars. Otherwise, we end up like civil litigators (joke—I love and respect many of my civil brethren). Of course, none of these justify acting or failing to act upon knowledge of misconduct. The rule makes it clear that knowledge of a violation that raises a substantial question as to that lawyer’s honesty, trustworthiness, or fitness as a lawyer requires notifying the State Bar, period. However, for us criminal defense attorneys, I think if we consider these things, it will help make the decision to act or not to act an easy one.

Brent Mayr
Law Office of Brent Mayr, PC
www.bmayrlaw.com