By Sarah McBride

As someone who uses "colorful" language from time to time, I found this article from law.com both amusing and troubling.  Turns out, there are other folks who also struggle with finding the right words to say.  No one is immune.  Not even members of the judiciary.

The moral of the story is to be professional in your conduct towards co-workers, adversaries and the court.  Also, think twice about what you say in a voicemail.  People tend to save those.

By Eileen Burkhalter Smith 

I have a confession to make:  I have been fined by a federal judge for being late to court.  Not only that, my fine occurred at a hearing on motions in limine for a jury trial that started two weeks later.  It gets better:  I was filling in at the last second at the hearing for the partner who was actually going to try the case.  I had not worked on the case, and I was stepping in to handle the motions.   

Let me back up.  My fine occurred essentially because I was late for the motion hearing without “good cause.”  My planning was not ideal:  I flew into the state the morning of the hearing, thinking I had plenty of time to make it to the Courthouse.  I did not.  Especially after I got lost.  Though I kept the Court Clerk apprised of my situation, and she was able to let the Judge know I was running late, he still was not happy.   

After finally getting to Court,  I charged from the elevator, hoping that we were not the only case on the docket, to be greeted at the Courtroom door by the Judge who said “you are in big trouble young lady” as he left for lunch.  I had an excruciating hour to weigh how serious he was about that.  He was serious.  

Before taking up our motions, the Judge asked me to “show good cause” why I had been late that morning.  Though there were one or two additional circumstances, it essentially was my fault for trying to cut it so close, and I told him so.  He found my explanation “not well-taken” and fined me $50.00.  Immediately after he made the ruling, he said “okay, go ahead with your motions.”  It was a quick transition.  We ended up winning the motions, but then I had to call the partner in the case, and let her know about the fine.  

All’s well that ends well, I suppose.  We ended up winning the jury trial, but I will say that that was one of the more stressful motion hearings I have attended.   

Moral of the story:  Keep your cool and fly in the night before!

By Robert Chapski

A recent advisory opinion from the Philadelphia Bar Association says that asking a third party to "friend" a witness on Facebook for the purpose of gaining information about the witness is unethical. 

Facebook, MySpace and the like are often invaluable sources of information when it comes to lawsuit participants, but, as the technology continues to grow and develop, lawyers are going to have to be careful to avoid potential ethics violations.

By Eileen Burkhalter Smith

Great article in the New York Times about the effect of technology on juries, and, more specifically, technology's interference with jury trials. Several recent trials have been appealed or declared a mistrial because of jurors getting public information about the case from their phones with internet access, or posting updates on public messaging sites during the trial or deliberations. 

I dealt with a jury consulting company recently that mentioned they had run into this too. They monitored Facebook during voir dire and were able to eliminate several potential jurors who posted to their Facebook pages during the voir dire, about serving on the jury in that trial. I suspect this may become much more of a problem in the future.

By Eileen Burkhalter Smith  

I have been floored by some of the things older lawyers, and even judges have said to me when appearing in Court.  Certainly, each local bar has its quirks—both  procedurally and substantively.  It goes without saying that the practice in each Courthouse is different and the bar “habits” are often intimidating to out-of-towners.  For example, it is hard to know even the most basic procedures—will the Judge call a docket once through before hearing cases, or hear them as he goes?  Can I pass my case to the end of the docket?  Does counsel actually sit in front of the bar, or do they remain in the gallery?  Should I try to have coffee with the judge in chambers with all the locals before court?  What about arguing—should I use the podium, or stay at counsel table?       

I find some of these things to be far more intimidating than actually arguing a motion or trying a case.  The only way I have found to make myself more comfortable is to ask around—even asking opposing counsel.  Has anyone appeared before this judge before? What about this Court’s docket call?  If it is a big motion or trial, the best thing to do is check out the Court and Judge a week or so before.  Try to sit in on one of his or her motion days.  I know this is regularly recommended for appellate arguments, but I think it is effective for even small-county Court appearances.  The other thing that helps is to ALWAYS plan to get to Court early if you are unfamiliar with the area.  Nothing like showing up at the Courthouse minutes before docket call, when Court has been moved to the brand new Judicial Center!  I think being a young lawyer can be like traveling to a different county.  You can’t really hide who you are (or that you come from a different area) but knowing some of the basics makes it a lot easier...and can help you try to avoid drawing the surprise of the locals. 

We would love to hear your stories.  What was your favorite comment to which you were subjected as a young litigator? Mine was either the one I have used as the title to this entry (which opposing counsel said to me after I won a case), or perhaps being referred to as “Little Lady” by a judge!  

By Eileen Burkhalter Smith 

Getting there, of course, is most of the battle.  But now that you are second chair, the number-one support position, what do you do?  The answer is: it totally depends on the trial, the court, and the first-chair.  Communication is an absolute necessity.  Here are a few things, however, that I think are pretty important, and at which the second-chair should make sure someone is looking:

1. Basic Logistics—including out-of-town witnesses, exhibits, trial technology, and accommodations.  Don’t forget about directions for those who may need it, and multiple phone numbers for everyone.  Do you have a war room nearby?  Will the Court have space for witnesses to wait in a separate room?  Do all the witnesses know that the trial may last 3 days? Is a court-reporter booked?  
2. Trial Details—of course, all the directs and cross exams are divided between you and the first-chair.  If appropriate, ask to try a cross of an expert, or to argue a difficult motion in limine.  Also, be sure you have the rules—local, state or federal, chambers, and any particulars of the judge.  Something will most likely come up for which you have not planned.  Do you need a laptop and printer for in-trial motions?  Will the court allow oral motions?  Are deposition transcripts accessible at counsel table?  These come in very handy when a witness “forgets” what he said earlier in the case. 
3. Picking the Jury—whether or not you are involved in taking the voir dire, this is an important area for the second chair.  Ask what will be the most helpful during the process.  Should you make notes of the answers of each venire?  Have you divided up the pre-trial juror research?  How will you deal with your strikes?  Does the Court allow back-striking?