Aren't you sick of this election cycle?
The candidates just keep attacking each other.
In every forum.
They don't have much time to talk about how they'll be a great President and guide our country.
Instead, they're focused on attacking each other.
Clinton attacks Trump.
Trump attacks Clinton.
Emails are erased.
Hillary isn't charged criminally.
Video reveals Donald isn't a choir boy.
What a surprise.
One candidate insults the other during the debate.
One candidate interrupts the other during the debate.
The moderator has absolutely no control over the candidates and what they say or what questions they answer.
Each candidate looks to zing the other.
They're looking for the entertainment value.
They're looking for the knockout punch.
They're looking for a soundbite to promote after the debate.
Allegations about Russia hacking and wanting to influence the election.
Allegations that Hillary is all talk and after 30 years of talking has nothing new to show for it.
Claims that Donald hasn't released his tax records.
Claims that Donald hasn't paid taxes in almost 20 years.
True or false?
Does it even matter at this point?
Ok, so enough of this election year nonsense.
Let's focus on your upcoming trial.
Since you've never been through a trial before you likely have certain expectations.
Expectations based on what you've seen on TV.
Or in the movies.
Or read in the newspaper.
Some or all of those expectations may be correct.
On the other hand, they may not be.
Let me give you three tips on what to expect that will allay your fears that your trial will not turn into a circus-like debate scene that we've witnessed with the last two Presidential debates.
- Your trial judge is NOT like a debate moderator.
- The judge WILL hold the attorneys accountable for their words AND their actions.
- Witnesses WILL be required to answer the attorney's questions and not simply answer whatever they choose to focus on.
Let me explain further...
In your accident case or medical not practice case or even wrongful death case here in New York, the trial judge controls everything that happens in the court room.
He controls what time court starts.
He controls when we take lunch.
He controls when we end for the day.
The trial judge decides what questions can be asked.
The trial judge decides what evidence will be admitted for the jury to consider.
The trial judge determines what the law is in your case.
The trial judge decides what sections of the law will be explained to the jury at the end of your trial.
Legally, that's known as the jury charge.
If anyone in court steps out of line, the tiral judge has the power to enforce fines, punishment and even banishing you from the courtroom.
He has the power of the law behind him.
He has court officers ready to carry out his orders, if necessary.
A debate moderator on the other hand is there to ask basic questions during the debate.
He is not there as a fact checker.
He is not there to cross-examine the candidates, although that would make for a more interesting and lively debate, in my opinion.
He is not there to control the candidates or keep them on-topic.
The debate moderator simply gets the conversation started.
His goal is to try and keep the candidates within certain time periods to answer the question.
The debate moderator has no ability to fine, sanction or punish either Clinton or Trump for not following the debate rules.
Let's shift back to the trial judge now...
The judge demands that an attorney rephrase a poorly-worded question.
The attorney MUST comply.
The judge demands that an attorney stop referring to something that is not in evidence.
The attorney MUST comply.
The judge demands that each attorney present him with legal briefs in support of or in opposition to a particular legal issue.
If the attorney fails to do that, the judge can do drastic things that could alter the outcome of the trial.
When a defense attorney tells the trial judge that he has two witnesses for the next day and only one shows up, the trial judge holds the attorney accountable.
"Counselor, if you don't have another witness here by 2:00 p.m. today, I am striking your answer. Alternatively, I will deem your case closed and you will be unable to bring in any other witnesses to support your defense."
Contrast that with the candidates.
They're not accountable to anyone except the viewers and voting public.
Even then, they don't reallly care.
The moderator will not fact check what they are saying is true.
Any promises made by the candidates are soon forgotten and relegated to those nerdy fact-checkers who publish statistics about who told the most lies at the debate.
Likewise, a trial judge does not determine which witnesses are telling the truth.
That's not the judge's function.
Rather, that the jury's function.
The jury decides who is telling the truth.
The jury decides who is shading the truth.
The jury decides whether the injured victim is slightly more likely right than wrong that what she is claiming is true.
Now, getting back to the circus-like debates...
The moderator does not care if the candidates insult each other.
The moderator does not dare hold each candidate to promises they've made.
Nor does the moderator demand that each candidate answer his question directlly without going off on tangents having nothing to do with the original question.
I think the viewing public would love to see a moderator with balls of steel and a rim-rod spine ask demanding questions of each candidate.
The viewing public wants to see the candidates get stuck trying to really answer tough questions without their handlers spinning a story.
However, none of that happens in these Presidential debates.
There are no moments like the climax in the movie 'A Few Good Men' with Tom Cruise and Jack Nicholson where Cruise's character, Caffee demands an answer of Colonel Jessup; Nicholson's character. "You can't handle the truth!" Nicholson yells out moments before he implicates himself in a murder.
Let's turn back to trial now...
There will always be cross-examination.
An opposing attorney always has a chance to challenge a witness after he's done testifying for the side that called him to court.
Cross-examination is supposed to be a search for the truth.
A chance to expose bias.
A chance to expose lies.
A chance to expose prejudices.
Rarely in real life do we see witnesses turn to quivering jello when being cross-examined.
Doesn't matter how good a trial lawyer is doing the questioning.
It rarely happens that the witness just breaks down in tears and confesses to whatever the attorney is claiming.
That happens on TV all the time.
That happens in the movies all the time.
In the entertainment world that makes for fantastic and climactic drama.
Cross examination tends to be pivotal point for trials on TV and in the movies.
Naturally, jurors expect the same thing when they are watching a trial.
Spectators in the courtroom expect the same thing.
Litigants often expect the same thing.
However, the reality is that it rarely happens that way.
There are no one-line zingers by the opposing attorney.
There are no insults being hurled by the opposing attorney.
You will rarely find an experienced trial attorney who will call a witness a 'loser' to his face.
He won't call him a pathetic piece of sh*t for his testimony.
Doing that would cause him to lose credibility with the jury.
Doing that would cause the judge to fine the attorney or maybe hold him in contempt of court.
Having said all that, an attorney who cross-examines a witness does something that a debate moderator never does.
He demands that the witness answer his question.
"Mr. Jones, isn't it true you were travelling 60 miles per hour as you approached the intersection?"
"Well, I was in my car and it was a really hot day. My windows were down and I was listening to the radio. The sun was in my eyes and I couldn't see the speedometer," the witness answers.
A seasoned trial attorney will NOT accept that answer.
In fact, that answer is bull.
The question was "Isn't it true you were travelling at 60 mph as you approached the intersection?"
That question calls for a 'yes', 'no', 'I don't know' or 'I don't remember.
It can only be one of those four answers.
If the witness says anything else, I'm going to bring him back to the question over and over until he answers my question directly.
"Mr. Jones, at the beginning of my questioning I asked you a series of questions. You remember those, right?"
"You promised to answer my question directly, right?"
"You also promised to answer my questions, which call only for a yes or no answer, either yes or no, correct?"
"You then promised that if you couldn't answer my question just yes or no, you would answer it 'I don't know' or 'I can't answer the question the way you asked, right?"
"Good. Let's go back to my original question I asked you a moment ago..."
"Isn't it true you were travelling at 60 mph as you approached the intersection?" I ask again.
If he plays a game and still refuses answer 'yes', 'no', 'I don't know' or 'I don't remember, I'm going to get a bit more aggressive and re-ask him if he remembers answering my initial questions where he made speficic promises to answer my questions directly.
"Mr. Jones, what part of that question did you not understand that calls for a yes or no answer?" I demand.
In a Presidential debate a moderator would never dare using this cross examination strategy.
That is truly a shame.
I believe the debates would be more interesting if the moderator was a practicing trial attorney.
I believe the debates would be more entertaining if the moderators held the candidates accountable to answer the questions directly without talking about other crap and campaign slogans.
You've now learned three quick tips to help you understand how civil trials work here in New York and how different your trial will be compared to the nonsense we've been watching with the Presidential debates.
To learn even more about how a trial works, I invite you to watch the quick video below...