Sep 09, 2016 Lawyers must know the terrain of the courthouse before court day
A hilarious story — but pathetic were it not fiction — came across a lawyers’ listserv once, about an out-of-state lawyer who arrived for trial in a small Louisiana town. Soon after the lawyer’s arrival, the judge took the bench, and greeted everyone in French. As everyone waited for the jury pool, the judge, opposing counsel, and court clerk were amiably chatting in French. When the pool of potential jurors arrived, the judge greeted them in French, the potential jurors greeted him back in French, and the judge started proceeding with jury selection questions in French, all with a light air felt and expressed by everyone in the courtroom except for the befuddled out-of-town lawyer and his client, neither of whom spoke a word of French.
Mind you, to my knowledge, the English-only movement has not succeeded in making English the United States’ official language, and there was a day when French was much more widely spoken in Louisiana and when many Louisianans understood little English, apparently to the point that some French-speaking grandparents were barely able to converse with their English-only-speaking grandchildren.
All of that said, what was the out-of-town lawyer to do upon arriving in this French-speaking courthouse? He should have done what any lawyer would do in dealing with an unfamiliar courthouse. Here, the lawyer should have learned the lay of the land by getting an experienced local lawyer to help the non-French-speaking lawyer understand, anticipate and acclimate to the peculiarities of the courthouse and the possible judges in for the case. Sometimes, the out-of-town lawyer should engage a local lawyer to be even more involved in the case than that.
The lawyer should have assured that the trial date was not his first date observing or participating in the courthouse’s proceedings; had he come on an earlier date to the courthouse, he may have learned that the entire courthouse or at least this particular judge had a penchant for making heavy use of French during proceedings (or else for starting with French as an April Fools joke on outside lawyers).
Of course, some courthouses have visiting judges who either are from other jurisdictions or who have retired and occasionally handle court proceedings. If the judge in this scenario had been a visiting judge little known in this particular courthouse, and if this judge’s name had not been known before the start of the trial, the out-of-town lawyer might not have had as much of an opportunity to expect a judge who would conduct proceedings in French.
In any event, at the out-of-town lawyer’s earliest opportunity, it was essential for him to move the court to have the proceedings move forward in English, underlining that the lawyer (and the client, if the client was not French speaking) was not a French speaker, and that the client would be deprived of his right to counsel and due process under law to have proceedings go forward in a language not understood by the lawyer. Even if such a motion were denied, the appellate record would have been made.
Judges know, though, that many cases are not going to be appealed, because not all litigants want to go through the expense and trouble of doing so. In any event, a lawyer must always prepare for the contingency of the lawyer’s motion being denied, which is why the lawyer should have early on sought a break (for instance to go to the restroom), and at that time found and obtained the most qualified French-English interpreter to come to court immediately.
The foregoing example of court proceedings being conducted in French on American soil may sound extreme, fanciful and even extreme. However, every courthouse has its material peculiarities, sometimes developed over decades, that might seem foreign to lawyers who have not practiced in that courthouse. Just as any army needs to know the lay of the land, terrain, weather and every other material aspect of a battle zone, a lawyer needs to know the same about the courthouse.
Here are a few examples of unwritten peculiarities of courthouses:
- In more than one courthouse in Northern Virginia, fifteen minutes is he default time length set aside for criminal trials in Juvenile & Domestic Relations District Court. That makes it essential for the criminal defense lawyer well in advance to find out if a time limit is being set aside for trial, and to move for a longer trial as needed.
- In Arlington County, Virginia, General District Court, the parties are expected to move before the trial date for leave to have a criminal trial last over one hour, or else to expect not to be allowed to go beyond an hour.
- In Prince George’s County, Maryland, Circuit Court, for over a quarter century, now-retired (but still serving) Judge Vincent Femia moves at a dizzying pace dispensing very favorable sentences — at the expense of guilty and no contest pleas — for all cases originating in District Court, other than for charges of handgun possession, employee theft, and assault on a civilian. Criminal defense lawyers not in the know about this Judge Femia safety valve can end up disserving their clients at the lower District Court level with case negotiations, and determining whether to pray a jury trial to bypass the District Court proceedings (and to get to Judge Femia) or to appeal a loss to Circuit Court (and to get to Judge Femia).
Lawyers must know the terrain of the courthouse before court day.