The Vanishing Trial: The Era of Courtroom Performers and the Perils of its Passing

In the “Vanishing Trial: The Era of Courtroom Performers and the Perils of its Passing”, trial lawyer Robert Katzbergreminds readers of the importance of the jury trial, why it is in danger of vanishing, and what makes a good trial lawyer. His arguments are grounded in stories from his experience of being a trial lawyer for over 40 years.

Katzberg began his career clerking, moving on to be a public prosecutor, then entering private practice. Where he has been till this day, specializing in white collar crime.

In the book, Katzberg describes the transition to the defense side as surprisingly easy. But he was taken aback by the loss of power. “People no longer automatically and quickly returned your calls. You were just another lawyer hustling for business.”

But during the hustle, Katzberg refined his trial skills. “When trying the case is the best of the client’s options, the value of the courtroom skills cannot be overstated. It is here where the experienced, talented trial lawyer provides the client with a realistic solution… And it is the realistic trial option which is increasingly vanishing from today’s federal criminal justice system.”

The disappearance of the trial poses a threat to the development of new lawyers and to the fairness of the legal system. Katzberg argues that jury service provides a check on the judicial branch.

It gives the average citizen, not judges appointed for life after having been pre-screened by politicians, the power to decide society’s most important matters – life and death, guilt or innocence, whether a company or individual is to be held responsible for wrongdoing, and so much more.

Yet, despite its importance, the jury trial is at risk of vanishing.

The two largest contributing factors to the disappearance of federal criminal trials are the rise of Federal Sentencing Guidelines and the rise of technology. High sentences scare people away from trying their cases in court. Powerful technologies make it harder from an evidentiary point of view to successfully defend criminal cases. Defense attorneys now have to confront either tape recordings of their client, devastating emails, cell phone records, GPS data, or some combination thereof.

Unfortunately, the decrease in trials makes it harder for lawyers to hone their craft. Fewer lawyers can develop real trial skills and maintain their courtroom skills.  

Based on his years of experience, Katzberg provides insight into what makes a good trial lawyer. One ingredient for success is losing against talented lawyers. “When things go badly, we are apt to critically analyze everything, hoping to identify what went wrong.”

Another ingredient of a good trial lawyer is knowing when to accede to their opponent. A good lawyer graciously gives up something that does not adversely affect their client’s position. “It costs you nothing while allowing you to appear even-handed and appropriate…”

Lastly, a good trial lawyer practices their craft. Katzberg compares a lawyer training to perform at a trial to a stand-up comedian training to perform in a club. Both feats involvement deliberate, consistent practice that incorporates the feedback of the audience. “When done at the highest levels, trial work is performance art in the purest sense of the term… In a fundamental way, courtroom talent, or lack thereof, is readily observable. Does the lawyer seem comfortable or tense, facile with witnesses or stumbling, collegial with the opposition or adversarial, quick-witted or slow, adroit in handling exhibits or clumsy…”

Although the book is rooted in the American federal system, the insights apply to Canada as well. Katzberg’s calls on public pressure on reforming the Sentencing Guidelines and on insisting on preserving the jury are issues of discussion here too.

Katzberg ends the book by questioning “without an ample supply of skilled courtroom lawyers, what is the criminal justice system going to do?”

(Views are my own and do not represent the views of any organization. This article was originally posted on slaw.ca)

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