The Practice Corner: Reflections on Trial in a Different Jurisdiction

by Daniel DeWoskin
Trial Attorney
www.atlantatrial.com

There is nothing like being away from home to make a person appreciate just how great home really is. I have just returned from trying a serious brain injury case in Orange County, California. I was admitted to practice in this particular case as pro hac vice counsel. For reasons I will explain herein, the case continues on despite the fact that I must return home. However, as I return, I have had the chance to reflect on how much I appreciate Georgia jurisprudence.

It is not surprising that California, like Georgia and most other states, has suffered from an economic downturn and that the courts have not been immune to budget crises. Well, in Orange County, one of the many ways in which the courts have had to adapt is that they only try cases on Mondays, Tuesdays, and Wednesdays. The remainder of the week is reserved for motions and other hearings. Court started promptly at 9:15 a.m. for us, the jury being ushered in precisely at that moment, and the judge then immediately took the bench. Everything was run with this precision, but nothing more precise than the end of the court’s day, which was 4:30 p.m.

At 4:30 p.m., in a measure to completely stem any overtime, the judge stops the trial, mid-stream, mid-witness, whatever, and excuses the jury. By the time we would turn around after standing quietly while the jury walks out, the judge was off the bench. There was to be no opportunity to discuss matters that would need to be addressed for the next day of trial. Court was finished for the day, end of story. At that moment, the bailiff would hover over my co-counsel and I and exhort us to pack up our case materials (over six bankers boxes), computers, and other items and get out of the courtroom. We were out of the courtroom by 4:35 or 4:40 every single day, and as the bailiff would usher us out, she would close the courtroom and lock the door.

This may seem as though everything runs much more smoothly, but in fact, regardless of how prepared or organized the attorneys were for each day of trial, efficiency came at a cost. In my trials in Georgia, the courts may have some unexpected delays where the jury must standby, but that is the nature of trial. Preparation and diligence curb unnecessary delays and sidebars, but the very nature of trial is unpredictable and the administration of justice often requires that the court send the jury out to take up various matters.

In our trial in California, the Court was reluctant in many circumstances to grant sidebars. This required both sides to engage in longer, more tedious examinations of expert witnesses as the record was painstakingly preserved. I should say that this trial was and is a complicated one, one that would have stretched to seven or eight days even if it went five days a week. However, given the parameters of the court’s schedule, voir dire stretched unnecessarily into a second day and the case will likely go at least through the third Wednesday of the third week. That would be nine days of trial in total.

As I just mentioned voir dire, I should explain that this was the element that was most different from Georgia procedure. After the general questions, individual questioning of the panel takes place. Once both sides have had a chance to ask questions, the Court would ask whether either side passes for cause. Then, if there was a peremptory strike, the counsel would announce, “The plaintiff (or the defendant) would like to thank Mr. Smith for his service and excuse him.” Thus, all the other jurors would know exactly who was striking a juror and almost certainly would speculate or intuit as to why. The potential for prejudice seemed staggering to me. I must admit that I have taken silent strikes in our state courts for granted for several years now.

The courthouse itself is bustling with activity, as are many of our courthouses, especially in the Metro Atlanta area. Elevators are jam-packed to capacity, requiring folks, myself included, to wait for over five and often ten minutes to get on an elevator with a rolling cart full of boxes. We did what many jurors and others did, which was to get on an elevator going in the opposite direction we wanted to go and riding down to go up or vice versa. This was frustrating, but aside from walking up or down a flight of stairs to accomplish the same goal, there were few other options available.

As for the layout of the courtroom, there was obviously a bench and seating for 14 jurors in the cramped, confined room. In front of the bench, there were two tables for each party and counsel . . . directly next to one another. If I am in any way unclear on this, the tables physically adjoined one another. Thus, the use of a computer for any note-taking could prove to be a poor decision strategically. Luckily, my handwriting is practically microscopic, so I did not feel the need to keep it covered at all times.

To be honest, it was just awkward to position my client so very close to the defendant, and I can only imagine how this must increase tension in cases where the parties are personally at odds. In my case, the plaintiff was injured by the defendant’s stipulated negligence and the parties were trying the case over damage issues, but personal animosity was not so much in play. The coziness within which both sides must try their cases added to the claustrophobia I experienced just being in a small courtroom. Did I mention all the bankers boxes crowded and stacked at our feet beneath the tables?

At one point, I asked my co-counsel what would happen in Orange County when you have two defendants, or two plaintiffs, or perhaps even more. He explained that those cases go to a complex department, which is what they call their court divisions, and that there would be a slightly larger courtroom to accommodate such a trial. Still, apparently, all the counsel tables are lined up and adjacent to one another. I imagine that this is not pursuant to local rules, and that as is the case in Georgia, one jurisdiction may vary from the next according to its size, case volume, and character.

I was impressed by the professionalism shown by the Court and its staff. There was, just as there is here at home, a due respect for the jury. The Court was attentive to all the witness examinations and focused on ensuring a fair trial, as should always be the case. The courtroom staff was polite, professional, and courteous, but as I previously mentioned made no accommodations that ran counter to the protocols of opening and closing time. Not to belabor this issue, but I have a newfound appreciation for those occasions in which the courts here in Georgia will push the trial until 6 p.m. or later for the purposes of completing a particular (and often costly expert) witness’ testimony.

I am thrilled to finally be home after being gone for twelve days, six of them in trial. I lament that I am only able to continue assisting my co-counsel remotely at this time, but I have a newfound appreciation for many of the things I took for granted, especially here in DeKalb County. So, if you see me in trial anytime soon, and you see me stretching my arms more than usual, walking about the court, breathing a sigh of relief as I wait only a few minutes for an elevator instead of ten minutes and longer, you will understand my relative content. Of course, this will probably be short-lived and I will go back to complaining about the little inconveniences in no time.