Like blind men boxing

Posted Thursday, November 3rd, 2016 by Gregory Forman
Filed under Litigation Strategy, Not South Carolina Specific, Of Interest to Family Law Attorneys

I often suggest to newly licensed attorneys wanting to learn how to practice a particular area of law that they go to the courthouse and observe a variety of cases within that field of law. While to practice in court without a supervising attorney merely requires an attorney to observe one family court trial, attorney’s meeting these “Rule 403” requirements will not observe many of the proceedings that are typical of family court, especially motions for temporary relief.  Further, in only observing one trial, they will likely observe only two attorneys. Those attorneys might be exceptional or inept, grey beards or green horns, thoroughly prepared or “winging it.” Observing all kinds of attorneys yields all kinds of lessons.

Very early in my career I had the opportunity to watch two mediocre attorneys (I’m being polite in using the term “mediocre”) try a rule to show cause. They were so unable to establish the points they were trying to establish that the case ran past its allotted time, necessitating a continuance and preventing me from completing my Rule 403 (then Rule 5) requirements. However it was one of the more instructive cases I observed.

It took years to determine the correct metaphor for watching mediocre attorneys try a case against each other but I finally decided that it must be akin to watching blind men box.  Roundhouse punches that rarely connect or do more damage to the puncher than the punched are the equivalent of cross-examinations that failed to control and pin-down hostile witnesses.  There was lots of flailing and falling in eliciting testimony whose relevance was unclear and with disjointed flow.  It can be oddly fascinating in a way that watching two merely good attorneys go at it rarely is.

When mentoring new attorneys I will look at the posted dockets and suggest they observe two attorneys I highly respect try a case against the other. This is intended for them to learn great trial skills. But, sometimes, I will also recommend they attend a trial of attorneys who will not be named in order for reasons I will not disclose. However it intended for them to learn what not to do. Watching blind men box can provided its own worthy, if mortifying, lesson.

5 thoughts on Like blind men boxing

  1. Joem250@gmailcom says:

    Good article.Hope one of the lawyers that you watched,wasn’t me.

    The real problem is that good lawyers settle most of their business. Going to court before a competent judge and let him/her listen for a few minutes ,to matters that you and the other lawyer have hassled with for much more time,and make decision

    1. You weren’t one of the two attorneys. I don’t remember who they were but am sure they are long retired.

      When I first started practicing a lot of older attorneys “dabbled” in family law. They were almost always disasters. The family law bar has become munch more professional the past 25 years.

  2. Joem250@gmailcom says:

    I didn’t finish and punched wrong key.
    What I was trying to say is that good lawyers resolve most contested matters.
    So,when you go to court and observe,it’s either bad lawyers or issues that need a judicial decision.
    Most if the time,it’s the client’s fault ,not the lawyers and they don’t want to pay the lawyer,especially if the result is not satisfactory.
    Keep up your good work.
    Regards to Karen.

  3. No lawyer can watch enough court. One learns what works and what does not. Court teaches good technique and bad technique. It also teaches about personalities and idiosyncrasies of judges and lawyers, which is often more important that the controlling facts. One cannot know enough about the judge or opposing counsel.

    When I go to family court and have to wait, I watch other cases, even uncontested or pro se cases, rather than chit-chat in the lobby area. I learn invaluable information and sometimes it applies directly to the case or argument I am about to present.

    When my father practiced (1928-1958) lawyers frequently watched other lawyers try cases. They were not only better lawyers than we are today, they were more collegial.

  4. MJ Goodwin says:

    I agree that it is as important to tell young lawyers what not to do as it is to tell them what to do. And from a practice standpoint, it is easier to practice against good lawyers than mediocre or bad ones. I charge more if the opposing counsel is mediocre or bad.

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