Oct 07, 2015 For non-lawyers: Effectively navigating the courthouse, testifying, and going to courtroom battle
Courthouses are my home, but can seem like strange lands threatening dysentery, malaria-bearing flies and quicksand to my clients and our witnesses. Therefore, here I pull together some of the basics that I tell my clients orally and in writing, and add that dysentery and malaria risks are reduced by staying physically, mentally and spiritually fit; choosing uncontaminated nutrition; and taking the right preventive medicine; and quicksand can be survived by relaxation, strategy, calling for assistance, and never giving in.
IN THE BEGINNING- PREPARATION
Before my client and I step into the courthouse for the first time, we will have prepared for the court date.
BEFORE THE CASE GOES TO A HEARING OR TRIAL
– You will feel more comfortable in the courthouse and courtroom by visiting before the court date. You will get a sense of the delays in the security line, and any discomfort and limitations by going through security, including indignities of being told in some courthouses to remove your belt and shoes before going through the metal detector. This is a price of entering the hallways where justice can be achieved.
– The courthouse is a battleground. Rather than feeling ill at ease by the proverbial flying bullets, know that this is an essential arena for achieving justice.
– The courtroom looks different from the witness stand than in the audience. Get that perspective by at least standing with me near the front of the courtroom and looking towards the courtroom entrance, even if not permitted to sit in the actual witness stand before being called as a witness on the court date.
– New ideas and developments can constantly arise. It is ideal for me and my client to talk before the court date about as much of the case as possible, so that any new discussions on the court date build on the foundations we already have laid before the court date.
– Make sure you know how to get to the courthouse and be ready for traffic. Arrive plenty early. If you arrive too early, you can fill in the time getting refreshments, taking a nearby walk, or otherwise relaxing. If you arrive late, that can set the wrong tone for the rest of the time in court.
– Dress respectfully and comfortably. My clients should wear comfortable shoes as we move between the hallway, conference room and courtroom.
– For court in Fairfax, my clients and witnesses are invited to park at our lot conveniently located across from the courthouse’s rear entrance. Please obtain a parking pass from us to avoid being towed. You may park in our thirty-minute spaces while obtaining and returning the pass.
– For other courthouses, find out from me the traffic and parking patterns. For instance, the Arlington courthouse parking lot fills up quickly, and does not allow re-feeding the meter beyond the four hour maximum.
– My clients should not talk with the police, prosecutor nor opposing witnesses other than to say hello if addressed or approached. For any discussion beyond that, my client should direct that person to me
– Court dates sometimes are exercises in hurrying up and waiting. Bring your cellphone (when allowed by courthouse rules) and reading material to pass the time.
AT THE HEARING OR TRIAL
– When our case is called, I will walk with my client to the front of the courtroom, and will show you where to stand or sit.
– Virginia misdemeanor case proceedings are not automatically recorded, with our recording options being your paying, in advance, a court reporter’s fee with our coordination or having me use my tape recorder.
– Be aware that microphones at counsel table may amplify what is said. Watch for the husher buttons on the microphones and to turn away the mikes as needed.
– My criminal defense clients are not required to say anything during motions hearings nor trials.
– My clients are critical for teamwork pretrial and during court proceedings. If you have any important ideas or concerns, I want to know them.
– During hearings and trials, I am fully focusing on the proceedings. I will give my clients a pen and paper to write me their thoughts, questions, and concerns. Please write neatly and with one thought per piece of paper. If I do not look at your note right away, make sure I do so before that stage of the trial is completed.
– If you need to tell me something orally rather than in writing during trial, please be mindful that this can take me away from focusing on what is being said by the witness, prosecutor or judge. You have no obligation to tell me anything during trial; you will know whether to do so. Also, I will check with you when I seek your input
WHEN MY CLIENTS NEED AN INTERPRETER
– The interpreter will interpret right next to you, or with a wireless earpiece in your ear.
– Federal courts will have highly-rated interpreters (at least for Spanish) who will interpret as tag teams so as to keep their vocal cords fresh. Sometimes state court interpreters will do the same
– The interpreter is not entitled to listen to nor interpret my conversations with you in Spanish or French unless I ask the interpreter otherwise; our discussions deserve confidentiality no matter the language.
– Particularly if you speak a language other than English, Spanish or French, we can invest in a private interpreter to interpret court and pre-court communications.
IF TESTIFYING THROUGH AN INTERPRETER
– Interpreters’ quality runs the gamut from woefully inadequate to the cream of the crop. Speak up if the interpreter is messing up. I will do the same when I catch it, especially when the interpreter is using Spanish and French, both of which I speak.
– Listen fully to the interpretation. Answer in your language.
– Do not hide behind any claimed language barrier. The right interpreter eliminates most of those barriers. The wrong interpreter needs promptly to correct mistakes or be replaced.
WHEN YOU TESTIFY
NOTE TO NON-CLIENTS WHO TESTIFY IN MY CASES: You are free to decide to talk with the prosecutor. My above suggestions about having me escort in the courthouse only applies to my clients
– Non-party lay witnesses ordinarily will be required to stay in the hallway until called as a witness. When that happens, do not discuss what is happening inside the courtroom. If during the hearing or trial you hear people talking about the trial or hearing proceedings while waiting to testify, volunteer that as soon as possible after being sworn to testify.
– You will be sworn in to testify. In some jurisdictions, despite the First Amendment’s freedom of religion clause, some jurisdictions will end the oath with “so help you God.” Please let me know in advance if you want me to ask the court to omit that phrase or to have you affirm to tell the truth rather than swearing to do so.
– Now you are under oath to tell the truth. Consequently, your only duty is to tell and uphold the truth, no matter how beneficial or not the truth may be to my case, and not to advocate, spar, nor pontificate.
– To tell the truth, you must listen to and understand the question as best you can, and must answer the question and only the question. You must not look for the questioner’s motive nor anticipate the next question nor what the questioner will do with the question. If you ask a question, your question must only be calculated to assure you understand the question so that you may answer it.
– The truth will set you free. Skewing the truth even slightly and filling in the blanks to guess at the truth are like unplugging the cork on a cesspool, with putrid results at best, and fatal fumes at worst. Deviating from the truth is like putting a noose around my client’s neck, which can get tighter as each of my side’s witnesses unknowingly impeach each other.
– The truth is simple and easy. Telling untruths is complex, and not only violates one’s oath and is a crime, but also often calls for multiple untruths to try to cover each prior untruth, like adding cement to a bucket attached to your leg in the water, making you sink perilously lower and lower into the sea, sometimes dragging my client’s defense down with you.
– The truth is as simple as unfolding a folded sheet of paper. When cross examined, warts may be revealed through that unfolding paper of truth, but the beauty of the truth overcomes the warts. Of course, if your testimony is only going to reveal dung for the defense, I would have learned that long before ever arranging for you to come to court, and would not have called you to the witness stand if your testimony were on balance going to harm more than help my client.
– If I ask you a question that you do not expect or throws you for a loop, know that it would take me dozens of hours of talk before court to tell you my possible flowcharts for deciding to ask one question or another, and also that plenty of questions come to my mind in the moment as additional ideas and information come to me during courtroom combat, including information that I learn while you are sequestered from the courtroom.
– Do not throw in gratuitous or intended helpful comments to assure I do my job or that you save face. The more you have faith in my ability to accomplish what I need with direct and re-direct questioning, the better. If I seem to make a mistake, it may not be a mistake after all.
– Be ready for impromptu questions from the judge and objections from the opponent. Stop speaking until the judge rules on an objection. Overruled means to answer. The mnemonic is that overruled and open start with the letter “oh”, so walk right through that letter “oh” when the judge says overruled. Sustained means to stop, which mnemonically starts with the letter S. Once the judge sustains an objection, do not try to do an end-run around the objection.
– When I say I have no further questions, take a relaxing breath in the interim before the prosecutor starts cross-examining you, usually without an intervening break time, unless you have already been on the witness stand a long time and request a break.
– Be as kind to the prosecutor as to me while you testify. If the prosecutor badgers you, leave it to me to determine what remedy to seek through objections or other requests for relief. If I do not object or seek other types of relief, it is because I have determined that the defense case is better served by risking the damage from not objecting at that point.
– If the prosecutor is unpleasant with you, respond with kindness. Turn the other cheek and feel free to express any anger or discomfort in private with me, subsequent to the proceeding. However, being calm on the witness stand will help dissipate any potential anger or discomfort.
– Have faith in me that during redirect examination, I will do what I determine is needed to rehabilitate key points of your testimony. That does not mean that I will try to counter every point of the opposition with rehabilitation. Remember, my direct and re-direct examination are focused on victory, which does not automatically translate to making you smell like a rose. Also, a flower without mud or dirt looks fake. A little mud can enhance credibility.
– Do not use non-verbal communication or cues with me from the witness stand. That looks suspect and even like seeking coaching.
– Testifying may not feel normal. Usually in conversation with friends, we interrupt each other, go off on tangents, and ask and respond to questions. On the witness stand, you are asked questions and you answer. Go nowhere near Jack Nicholson’s tirade about “You can’t handle the truth” in A Few Good Men, which serves no good but entertainment and critical questions. You know what it is like for your doctor to ask you questions to find a solution to your health issue. Just answer the questions while on the witness stand. Just the facts, ma’am or sir
– Rather than thinking you are finished for good once you get off the witness stand, be ready to be subject to recall as a witness, and to testify at any subsequent proceedings, including any retrials.
– You may want to debrief with me about your testimony. I will do so, whether it be that same day or another day if needed.
By the time you have left the courthouse, you will have unlocked many of the perceived and misperceived mysteries of the courthouse and the criminal justice system. The court system belongs to all of us and is here to serve us all. It is not some sort of secret society with secret handshakes and incantations.