By Eileen Burkhalter Smith

So, I have just learned that there are rules in hockey about who can fight whom in a fight (the allowance of which is in and of itself an unwritten rule).  Apparently, these rules are not actually written, but they are enforced.  Check out the outrage that happens when someone doesn’t follow them here.

This made me think about the unwritten rules in a trial.  I think we can all agree that we have our fair share of written rules, but would you agree with me that there are unwritten ones as well?  Here are three (a hat trick?) that I think exist based on some recent experience:

1.  Embrace your case.  We all have to be advocates, right? I was surprised recently by seeing someone act almost sheepishly about her position in a case during a trial.  I think this might be effective during negotiations, counsel to counsel communications or in other situations, but in front of the judge? The jury?  I think you have to take a stance and believe it.  If you don’t, no one else will.

2.  Pick your battles.  A trial is different than a written motion where it may be appropriate to footnote or reference every facet of every argument.  In a trial, making a mountain out of a molehill can backfire.  Consider whether your strong dispute about a harmless hearsay statement will make the Judge less likely to give you time to argue your later motion to exclude testimony.

3.  Respect their time.  I think it is also important to edit arguments, witness examinations and even evidence depending on how a case is going.  Has the point been made?  Is it 4:00 p.m. on a Friday?  If the case allows for it, I think it is appropriate to realize that the trier(s) of fact may have made a decision and would appreciate an early end.

These are all case specific, of course, but perhaps we should learn a thing or two from hockey:  don’t run a foul of the unwritten rules; it may leave you short-handed.