IMO, it is like many things that may appear superficially interesting to a neophyte. But IMO, the more you know about and do it, the less interesting it becomes.
Well, I agree that contract law is probably a snooze-fest, and everyday pety crime stuff probably isn’t that scintilating, the really far out law cases fascinate me - I’m always fascinated by the spin that defense lawyers will put on cases like the one I mentioned in the OP. I mean, you hear all about it in the press, and then here the defense’s take on things - it’s interesting.
However, I assume any job day in and day out would start to get a bit boring or predictable.
That’s why the judge is there. To determine if the attorney is either too stupid to understand his own questioning or if the witness is stalling. In my case, I replied a number of times with the “don’t understand the question” response and then, noticing the judges growing discomfort I unloaded a response which corrected the question and supported my position as an expert witness. “I don’t understand your question because a megawatt is a term for capacity while megawatt-hour is the term for energy. The power plant is capable of producing thousands of megawatt-hours over a course of time but has the capacity for less than 100 megawatts.”
The same tactic wouldn’t work for a question that is obvious to most people. the judge would recognize the witnesses attempt to evade and take action.
So my actions only worked because the attorney questioning me clearly did not understand his own question and had no assistance at his table. If he had a clue about what he was asking he would have broken down the question into simpler components and felt his way through it. In this one particular case the attorney just wasn’t prepared and lost the point he hoped to make.
Meh. I like my idea better. The pistol whipping, that is.
Don’t know about the pistol business, but you can whip me any time you like.
In the Great White the lawyer quits. If this happens in the middle of a hearing, usually there is an adjournment for the party to find another lawyer, although the party can keep on trucking without a lawyer. Theoretically, a lawyer can be fired and re-hired later on (a sometimes happens when a client of limited means hires a lawyer to get a case going, then sacks the lawyer due to lack of money, but then re-hires the lawyer to handle the trial), but that could run one into trouble with the judge for dicking around. Up here the lawyer can’t simply sit down and be quiet when the client lies.
Early on, the lawyer explains to Ralph that if Ralph tells the lawyer something in private, but then says something different at trial, the lawyer will have to quit, so Ralph should be very careful in what he tells his lawyer.
If Ralph tells his lawyer things that would make it unethical for the lawyer to put forth a certain type of defence, then either that particular defence will not be put forward, or the lawyer will quit. That’s why it is common for an accused to dump one lawyer and hire another before going to trial. Ralph simply won’t tell his lawyer whatever it was that he said to his first lawyer.
For example, Ralphie tells his lawyer that he was in Montreal when Potsie was mugged in Montreal, but Ralphie insists that he wants to testify in his own defence, and that his testimony will be that he was in Saskatoon at the time. His lawyer will tell him that either he must not tell that lie in court, or the lawyer will quit. Ralphie still wants to testify that he was in Saskatoon, so he goes out and hires a new lawyer, and does not tell that lawyer he was in Montreal. His first lawyer is bound by solicitor-client confidentiality from ever telling anyone that Ralphie had told him that Ralphie was in Montreal.
Now let’s say that instead of going out and hiring a new lawyer, Ralphie takes his first lawyer’s advice and does not testify. It will be up to the prosecution to prove that Ralhie was in Montreal. Ralphie’s lawyer knows that Ralphie was in Montreal, but that lawyer is under no obligation at all to tell anyone this. It is entirely up to the prosecution to prove it without any help from Ralphie or Ralphie’s lawyer.
Where it gets messy is when Ralphie testifies, rather than simply keeping his yap shut. He can not be forced to testify (in Canada criminal matters, you cannot be forced to testify against yourself), but if he decides to testify, then he risks being asked by the prosecutor if he was in Montreal. If he says “no”, then his lawyer must quit, for the lawyer must never, ever, never never never, under any circumstances, participate in misleading the court.
Sometimes folks ask why it is that a lawyer does not have to say what he knows. There are a couple of reasons. First, it is important that there is an even playing field, in which the accused has a good lawyer to stand up to the powers of the state prosecutors. If people are to have such lawyers, they must be able to trust that their lawyer will not turn on them by blabbing. That is why what a person says to a lawyer must remain confidential (yes, there are exceptions, such as telling your lawyer that you are about to kill someone – then the lawyer will call the police). Second, who the heck would want to be a lawyer if you have to regularly be called as a witness, bearing in mind that usually if you end up being called as a witness you must quit, for it puts you in a conflict of interest against your own client if you have to testify.
The lawyer would have to quit if Ralphie gave testimony that suggested that the gun was purchased at any time other that two days prior to the shooting would be misleading the court. Ralphie should have not testified, or else not raised this defence. Although his lawyer will not tell the court why he is quitting (he must not breach solicitor-client confidentiality), he will have to quit (he must not mislead the court), and Ralphie will have to get another lawyer (he has a right to a lawyer) or continue without a lawyer (he has a right to not use a lawyer if he does not want one).
He carefully questions the client in his office on more than one occasion, and possibly has the client put through a competency assessment. With this sort of client, it is usually best to not put them on the stand, for as a rule of thumb you never put your client on the stand unless you know what your client is going to say.
In Canada there is another circumstance in which lawyers often have to quit – when the client wants to plead guilty but will not admit to the material facts. Up here a person can not plead “no contest”. They must either plead guilty or not guilty. If they plead guilty, the prosecutor will read the material facts into the record so that the judge can then convict and sentence. This causes problems when a party claims that they did not do the deed, but they want to plead guilty because the conviction would be easier live with than going through the expense and bother of mounting a defence. If they in fact did not do the deed, then they would be misleading the court if they pled guilty, so the lawyer must quit.
I can’t speak for where you are, but here in Ontario for civil matters (MVA, med-mal, family, etc.) your unused expert report would still have to be disclosed to the other side early enough for them to have their expert review it, and if the other side wanted to, they could examine you in aid of discovery well prior to the trial, or on the stand at trial, even if the lawyer who hired you never used your report. (A word to the wise for potential expert witnesses – make sure your retainer covers you for this sort of thing, for the opposition will not be paying you big bucks to testify – all they will give you is a plane ticket, a cheap motel room, and a witness fee that won’t pay for much more than meals.)
So boring that once a visiting judge drifted so far off into space that when I finished, he stood up, and walked away from the dias right into a wall (where one assumes that there would have been a door in his home courtroom).
When it comes to witness prep and presentation at trial, think of a lawyer as a teacher or a technical writer. The lawyer has to ensure that the witness gets the facts across to the judge in a way that is effective in explaining things to the judge.
Who here has taken a university class in which the class is split into several sections? All sections cover the same content – the same facts. Some sections have better instructors than others. Wouldn’t it be nice if all the instructors were equally good in their presentations? Well, that is what lawyers do – they make sure that the witnesses are all as effective as they can be in making their presentations to the court.
Who here has been a technical writer? How do you pick what information needs to be presented, and what information is simply clutter? Once you have decided what should be presented, how should you most effectively communicate it? That is precisely what the lawyer does when preparing witnesses and arguments.
Finally, and most importantly, remember that judges are highly skilled at sniffing out crapola, remember that lawyers go before the same judges time and time again throughout their careers, and remember that judges talk to each other. As a lawyer you will have a reputation with the judges. It may be a good one in which the judge assumes that you will never knowingly mislead him, or it may be a bad one in which the judge thinks that you are a weasel who will say just about anything that sounds good for your client. Which reputation would you rather have when the judge is trying to sift the shit from shinola?
Just look at this message board. I expect that there are people here whom you are always willing to listen to, even if you are on the opposite side of the political spectrum, simply because they are so strictly honest that you know that they will never knowingly mislead you, even while they are strenuously arguing against you. You will listen to those people very carefully, and try to understand what they are saying even if you initially disagree with their opinions. I expect that there are other people on the message board whom you would not trust as far as you could throw them, even if they hold similar opinions as you, so you generally don’t give what they say any serious consideration. Now imagine that you are a judge. Who has the better chance in persuading you, the strictly honest lawyer or the weasel?
No one client is worth risking a lawyer’s reputation before the bench.
Have a boo at how examinations are handled differently from cross-examinations.
In examinations, the lawyer cannot lead the witness, whereas in cross-examinations the lawyer can confront the witness in great detail.
Let’s say that a couple is divorcing. The hubby’s lawyer puts the hubby on the stand and examines him:
Lawyer: Please describe what took place last Christmas eve concering the tree.
That sort of question leaves the witness totally open as to how to answer it. It does not lead the witness into giving a pat answer. It does not present a fact to the witness, but instead tries to driect the witnesses attention to a particular issue so that the witness will present the fact that the lawyer want the judge to hear. A properly prepared witness will get right to the point, rather than blather on about taking the dog for a walk or what the turkey gravy tasted like, or simply forgetting what happened.
Now comes the wife’s lawyer’s turn to cross-examine the hubby:
Lawyer: You urinated on the Christmas tree, you will agree?
Essentially the wife’s lawyer alleges a fact and forces the witness to either agree or disagree. A properly prepared witness will not be surprised by this, and will be ready to give an honest but exculpatory answer (e.g. Yes, after my wife slipped a mikey in my drink) rather than a deer in the headlights answer (e.g. yup, I guess I did).
In short, proper preparation will help the witness stay on point and testify clearly and concisely during direct examination, and will help protect the witness from sneak attacks during cross-examination.
In my experience one can never be sure what the hell the witness will say in the box. I’ve had senior, experienced, seemingly confident and straightforward experts say one thing to us in the office and hence their tendered statement, something totally different in cross examination and something different again in re-examination, all in under an hour.
This is why Perry Mason was such a genius. He only took on innocent clients! :eek:
In my own expert witness experience, the attorneys send me a case and always ask for a verbal report after my review–not a written one. It’s reasonably common that I am unable to support their case. That is the end of it. The other side would never know I agreed with them. I’ve never seen an attorney progress to anything written without first knowing what is going to be set down, for just the reasons you describe, and I do not think I have ever been disclosed as a witness prior to us both agreeing what the answers to the interrogatories should say.
Saw this thread yesterday, and was planning to respond, since it was my comment in the other thread that triggered this one. But was tied up with stuff.
Now, I’ll just say: What Muffin said. (With props to Bricker and Campion.)
You bragging or complaining? 
That’s how we handle it up here.
I’ve seen that happen. Hasn’t happened to me yet, but sooner or later it will. Boogie-men under the bed, drunk drivers approching intersections, and expert witnessses.
This has all been very interesting and informative. I’m trying to figure out what probably happened between the defendant and her lawyer in the original case that started this discussion in light of her new testimony (with what appears to be a serious slip on her part). Latest news story. (Thanks for the link, Northern Piper.) Just so there’s no confusion, the people the young girl is talking about and watching being killed in the news story are her parents and her brother.
That, Muffin, was a totally fabulous answer. I would be delighted to whip you in gratitude.
Seriously though - that was great. You’ve truly fought ignorance here. Well done!
It’s very hard for an outsider ever to work that out, because those discussions are privileged. Unless you’re on the defence, you’ll never have full access to the discussions - and if you are, you can’t talk about those discussions.