• by Kaitlyn Zarcone-Beam
Originally published at The Lawyer’s Daily
As a younger version of myself, I used to imagine my first trial as a lawyer.
I would be the second chair, gloriously robed and furiously note-taking. The partner I am assisting is cross-examining the witness. The witness shifts in his chair, trying to avoid eye contact, and all while sweating nervously. But wait. The partner pauses in a moment of uncertainty. I gasp and worry that our case will fall apart in an instant.
In a flash, I write down the perfect cross-examination question on my yellow pad and slide it across the desk. The partner reads it. The partner’s confused look slowly turns into a smile. She poses my question to the witness. It garnishes the evidence we need to win the trial.
Beep. Beep. Beep. The alarm clock rings. I wake up to reality.
As most of us already know, real legal practice isn’t the same as my youthful imaginings. For example, since being called to the bar, I have not been in a brick- and-mortar courtroom, and I do not own my own set of legal robes.
Still, I was able to complete my first family law trial a few weeks ago as a lawyer and I would love to share some of my initial experiences for anyone that may soon be entering the courtroom for the first time.
My trial was five days long and virtual in all sense of the word. My primary responsibility while court was in session was to take notes. After a few hundred years, electronic signatures and bitcoin, some things still have not changed. While note taking is generally considered an entry-level task, I realized there was a great deal of value I could contribute as our note taker.
Because our only accounting of the viva voce evidence adduced during the hearing was my notes, I realized how critical it was to accurately capture the pieces of testimony which were most important to our case. While you may have access to a transcript if you need to appeal, you will not have a transcript when drafting your closing submissions.
At every break, and at the end of the day, while the evidence was still fresh in my head, I reread my notes, and corrected my shorthand. This alone took hours each day. However, this upfront daily work eventually paid off when I drafted our closing submissions.
While some trials have a team of lawyers and articling students, many lawyers, especially in family law, do it alone. I still wonder how these lawyers record the testimony while also eliciting it. At many points in the trial, I found it difficult just to keep up. Even as the lawyer who was not conducting the cross, capturing the information as accurately as possible was not an easy task.
In comparison, my first civil trial during articles was quite different. The partner with whom I worked gave me significant responsibilities. At the end of his direct and cross-examinations, he would mute his microphone and ask me if he missed anything. I was surprised. Did this senior partner really think I had anything of value to add?
What I should have realized then, and what I realize now, is that no matter how new to the legal profession I may be or how many trials I have done, my contributions can be valuable.
I think about the questions that I would have asked if I had been the first chair. As the second chair, I have listened to the testimony without having to constantly think about what comes next. I thus found it much easier to provide the second sober thought in that position.
Therefore, don’t be afraid to give your input or think of questions that might have been missed. Even if one out of your 10 questions is used or is helpful, then you’ve added value.
And speaking of value, I’ve started to also think about how virtual trials could potentially be beneficial to our return to the physical courtroom.
This benefit occurred to me, I must admit, in a moment of weakness during of my recent trial as I took a sip of coffee.
While I knew drinking coffee was not allowed in “real” court, I did not realize that this was also not allowed in virtual court. Luckily, the partner I was working with was able to instant message me that it wasn’t allowed.
This highlighted to me the utility of instant messaging in the context of a hearing, and I think this may continue to be useful when we return to the courtroom in person. Lawyers making in-person submissions may benefit from having a device upon which they can view their colleagues’ real-time comments.
On the other hand, I could also imagine some lawyers being bombarded with messages during court very distracting.
Time will tell what method of virtual court communication will be most efficient and how the future will affect our transition out of this pandemic.
In the meantime, all I will say for now is that while I could not have imagined my first trial as a lawyer on Zoom, I am glad that I have the first one behind me.
I am grateful for the experience and will continue learning as I sit in that second chair.
But I know, that when I lead my own trial one day, I’ll make sure to remember to send my junior a friendly instant message thanking them for their contribution along with a heartfelt and definitely virtual high five.
Kaitlyn Zarcone-Beam is a lawyer at Frenkel Tobin LLP. She practises exclusively in family law and can be reached at email@example.com.