Always on Trial

Lawyers are constantly being judged, and not just from the bench 

Published in 2016 Mountain States Super Lawyers magazine

By Idaho Senior District Court Judge D. Duff McKee on June 13, 2016

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When examining a witness, there is no reason to take a pencil or pen to the podium. There is no need to take notes. A lawyer needs to pay attention to the witness, to look and listen to what is going on, and to observe the impact of every answer. He cannot do this while scribbling on his pad with his head down. The note-taking lawyers are legion who are so concerned with getting the answer down in their notes that they are not aware of the impact of their questions, or of the witness’ reaction, or even if the answer is complete to the question asked. If notes are needed, assign this task to a paralegal.

The impression the lawyer makes during jury selection is going to follow him throughout the trial. If he is charming and cordial to the venire panel during voir dire and then totally ignores the seated jury during the trial, or treats them like cattle or a flock of sheep, or is condescending and talks down to them like preschool morons, all this will be remembered when it counts. A jury trial is a seamless continuum.

Anytime the lawyer is anywhere near a courthouse, he is on stage. Everyone knows not to overreact in the courtroom—but how about the halls, the elevators, the restroom, the parking lot and the corner coffee shop? If a lawyer does or says something stupid anywhere, somebody is going to see it. And Murphy’s Law says: The dumber the act and the more important the trial, the greater the likelihood that somebody who sees it is going to be a member of the jury.

Planning and preparation includes everything. The need to be alert and pay attention never stops. 

McKee also practices ADR and mediation in Boise

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