Scared? Acknowledge courtroom fears

Listen to this article

Conscientious lawyers prepare months for trials, developing their courtroom themes, deposing witnesses and uncovering evidence to wow the jurors.

But they’re only human. And fears — some rational, some irrational — plague the best of them.

We asked some veteran trial lawyers to share their fears about what can go wrong in the courtroom:

• Elizabeth Kelley, solo criminal defense lawyer, Cleveland

“When I first started trying cases my biggest fear was voir dire. … I spent several months going from courtroom to courtroom in Cuyahoga County, listening to just the voir dire of juries, and getting a sense of what tactics were effective and which ones didn’t appear to be effective.

“Now I would say that my voir dire is probably the strongest part of my trial. I am very good with names and by the time the judge and prosecutor get done with voir dire I will have looked at the list of jurors so many times I’ve memorized the names of the 12 potential jurors and the other jurors waiting in line. So by the time I get up to conduct my voir dire I know every juror by name. They love the fact that I know their names. …

“Also, by the time the defense attorney gets up, jurors are tired, so I make a deliberate attempt to only do voir dire for 50 to 75 percent of the time the prosecutor takes. Jurors appreciate that brevity.”

• Russ M. Herman, plaintiffs’ lawyer, senior partner, Herman, Herman, Katz & Cotlar, New Orleans

“The first two or three years in practice I would have a great deal of adrenaline in anticipation [of trial]. So I wouldn’t throw up I would only have a boiled egg and one piece of toast in the morning and soup at lunch. … I also learned breathing control … from a jury consultant, actress Katherine James.

“[Even now,] no matter how confident I am or how prepared, I always worry when I’m waiting for a verdict to come in. To me that’s the toughest part.”

• Jon May, federal criminal defense attorney, May & Cohen, Miami

May still remembers the time a witness took over the questioning.

“I was trying a mail fraud case in Newark that involved allegations of fraud in a scheme to sell certain commodities.

“During the course of examination of one of the victims … my question was: ‘Well, if you had purchased the silver outright and had it for the past 10 years, you’d be wealthy.’ I was trying to show it would have been a good investment; I wasn’t addressing whether my company had physically stored it.

“‘That would be great,’ the witness replied. ‘Did [your client] really purchase the silver? That would be my question.’

“My response was, ‘Ma’am, I get to ask the questions.’

“What you don’t see in the transcript is either the expression on my face — I could tell I was turning red — or the gap in time. … It seemed like forever between the time she made her statement and I responded.”

• Diane Sullivan, pharmaceutical/ mass torts defense lawyer, partner, Dechert, Princeton, N.J.

“A tough judge in a tough jurisdiction in a big trial would make anyone a little nervous. What’s helped me is … understanding that … the situation/case is not about you, but about the people at a company who are really counting on you to deliver the best defense you can. That helps get rid of any fear.”

• Christopher Seeger, plaintiffs’ lawyer, partner, Seeger Weiss, New York

“As a former boxer, it’s in that last week [before trial]… I say, ‘did I do everything I could to get ready? Did I read everything in the case myself?’ I believe whether I’m leading or taking witnesses, I need to know the entire case.”

• Gary D. Gerbitz, criminal defense lawyer, Miller & Martin, Chattanooga, Tenn.
Gerbitz’s said his biggest fear stems from seeing a colleague calling the wrong witness.

“In 1969, I took a job as an assistant district attorney in Chattanooga. One of my law school classmates, Stan, had taken a similar job in the same office two months earlier.

“A murder case was called for preliminary hearing, and Stan had the witnesses standing against the wall closest to the witness chair and was putting them on the witness stand one at a time.

“He called the next witness, a middle-aged man in worn overalls, a flannel shirt, jacket and a baseball cap logoed with ‘Red Man.’ The judge swore in the gentleman and he took a seat. Stan asked his name and he gave it. His address was also asked and received. Stan asked the witness what he knew about this murder.

Response: ‘I don’t think I know anything about it.’

“Stan tried again and got the same response. Realizing how some country people were reluctant to be involved in these cases, Stan asked: ‘Do you know the defendant?’ ‘I don’t think so.’ ‘What about the deceased?’ He didn’t know him, either, he said.

“When Stan felt like he had tried as hard as he could, he asked the witness: ‘What are you doing here if you do not want to testify?’

“The gentleman said: ‘I came here to get a fishing license and must have got in the wrong line.’”