My First Time Second Chairing
by Morgan C. Murphy
Every young litigator dreams of his or her first trial. Some young attorneys try their first case themselves, either because they practice solo, the partner trusts them with a fender bender case, or they are government attorneys who may not have the resources for second chairs. In medical malpractice cases where doctors’ reputations are on the line, a young associate is fortunate to get to go to trial at all. This past February, after a year and a half of incessant preparing for trials which for one reason or another never came to fruition, my turn finally came. I second-chaired a three-week trial in St. Louis County with six unique defendants and potentially millions of dollars at stake.
Although I had sat in on trials before, complete immersion in trial preparation and participation in sidebars and conferences in the judge’s chambers provided me with new insight. One of my first surprises was discovering how early and frequently lawyers make decisions at trial based on the possibility of an appeal. The issue first came up during jury selection, but was cemented when the plaintiffs put on their first witness, an expert neurosurgeon, on the third day of trial.
The plaintiff’s expert neurosurgeon opined that only a certain interpretation of a spinal MRI was valid, and added that the jury should not believe any physician that told them otherwise. This comment precipitated a lengthy sidebar (with approximately ten attorneys) in which all of the defendants moved for a mistrial on the basis that the expert witness had improperly invaded the province of the jury, namely, determining the credibility of witnesses. My initial thought was: “This is absurd! All of the physicians have cleared their schedules for the next three weeks, experts’ planes are booked, and the attorneys have spent weeks prepping; do we really want a mistrial on day three?” Of course, I quickly realized that nobody really wanted a mistrial—they just wanted an appealable issue. The motion for mistrial was overruled, and the trial went on.
Seeing a trial in action also enlightened me as to why attorneys don’t ask certain questions of witnesses during their depositions. For example, the plaintiff’s daughter was not fully apprised of the plaintiff’s medical history. At her daughter’s deposition, no attorney cross-examined her regarding her mother’s past health problems. Therefore, at trial, cross-examination of the plaintiff’s daughter was more effective because she was not expecting those questions and may have been learning for the first time about some of the information used to cross-examine her. Similarly, information gleaned from prior depositions of the plaintiffs’ experts was best used for the first time at trial to catch the expert by surprise.
Being in trial made me realize how drastically different day-to-day trial proceedings are than what a jury likely expects from watching Law & Order. It behooves an attorney to speak loudly, clearly, and dynamically, not unlike a high school teacher. PowerPoint presentations and demonstrative evidence help, especially when difficult, specialized concepts such as medical anatomy are being explained to a jury. The jury also seemed to genuinely appreciate an opportunity to laugh, especially if it was at the expense of the attorneys. Certainly having to put on a case in front of twelve to sixteen people who are entirely focused (hopefully) on your every word and action is a lesson in humility.
Finally, as with any attorney’s first trial, there was one experience I surely will not forget, though it was out of the courtroom. The partner with whom I worked volunteered me to pick up our extremely reputable neurologist expert on the way to court one morning, apparently forgetting that my 1996 Honda Civic had blown its muffler during the second week of trial. Of course, I couldn’t say no. So, I picked up the neurologist, who was charging more per hour than my car was worth, in my 1996 Civic sounding like a pack of Harley Davidsons, and took her to the courthouse.
After three weeks of intense trial preparation and hours upon hours of testimony, I was glad the entire experience was over. Now, three months (and a few hours of sleep) later, I am sincerely looking forward to my next trial experience.