An interesting experience — hanging out with trial lawyers

I’ve been practicing forensic pathology for almost 38 years now.  You’d think that it would all be old hat, but there’s always something new to learn.  A few weeks ago, I had the opportunity to consult on a case for the defense in a criminal murder trial.   Normally, whether I’m testifying as part of my Medical Examiner work (almost always for the prosecution) or as a private consultant (usually for the defense — see  note at the end), I’m only at trial a day or two for each case.   We Medical Examiners are horribly overworked, and having the staff at a ME office all out spending weeks at trial would destroy an office.

But now I’m semi-retired.  I work one long weekend a month at my local ME office to help with their understaffing, and I pick up the occasional private consultation.  So I have a little time.  For this case, counsel decided they wanted me there for the entire trial, mostly to help them cross examine the prosecution witnesses.  So, I spent a couple of weeks watching almost everything in the trial, other than jury selection.

What I saw was eye-opening.

First, I was unaware of the time commitment these lawyers have.   For most of the trial, they spent all day in court.  Then, after the day’s proceedings were over, they’d grab a bit of food and then spend the rest of the night discussing strategy and planning the next day’s  actions.  They would go through the records of each upcoming witness.  For experts, that included their professional histories, publications, and for physicians, any adverse actions and pertinent previous testimony.  While the prosecution was presenting, they spent a great deal of time trying to predict what each prosecution witness would say and what surprises the prosecution might pull.  During the defense phase, they would work on how to tailor witnesses and questions to deal with specific points the prosecution made. There were multiple medical experts on both sides.  Those of us working with the defense were deeply involved with these late-night conferences.  It was common for us to be in conference until 1 or 2 in the morning.  Then, the next day, it would start all over again.

It was something to see how absolutely consumed counsel was while the case was active.

During trial, it was also a surprise to see how testimony was broken up by in-camera conferences.  After almost every witness, and sometimes in the middle of testimony, one side or the other would raise issues.  The judge would shoo the jury out of the room, and there would be a few (or many) minutes of arguing over some esoteric point of law.  I missed the meaning of much of this because the judge and counsel kept referring to specific statutes by number, and I had no idea what they were.  Nonetheless, the process of fitting everything within the constraints of these statutes was fascinating primarily because it was so technical — often down to exact wording of how counsel could ask a question or how a witness (usually an expert witness) could answer.  Fitting everything into these constraints had an engineering feel to it.  It seemed very unlike trials one watches in the media.

There was a lot of this in-camera stuff, which meant the trial moved slowly.  The third thing I found was that, sitting in the courtroom for two weeks, things moved so slowly it was like watching paint dry. This was particularly true for the process of getting physical and photographic evidence admitted, as well as various logs and notes and such.  The ritual of confirming the provenance and admissibility of evidence was excruciating.  When other forensic pathologists and other medical experts took the stand, I perked up, since that was what I was there for.  Those were periods of intense concentration for me.  The judge allowed experts observing the trial to bring in laptops, so we were busy looking up medical literature, reviewing reports, etc. during testimony so we could get messages to counsel.  The judge was OK with that as long as we were silent and unobtrusive.

It was a particularly intense and even emotional event for counsel.  There were multiple lawyers on both sides.  By the time the trial was over, counsel was both physically and emotionally exhausted.  After the trial was over, I got down on my knees and thanked God for not making me a trial lawyer.

I was reminded of watching a chess game with a friend of mine who was a chess enthusiast.  To me, it was a tedious affair of pushing wooden blobs on a checkerboard.  I know how to play chess, but I just don’t care for it.  My friend, on the other hand, was oohing and aahing through the whole thing.  This was like watching the chess game (except when the medical experts were speaking). There was an intern working with our side who was very enthusiastic.  God bless her.  It ain’t for me.  There was another fellow involved who seemed to mostly be doing logistics stuff.  The degree of logistic support needed for trial was also a surprise to me.

But… after all these years of doing this stuff, I got a very different view of how trials work.  I have a much, much better idea of what counsel needs and would find useful when consulting on a case.  It was a surprisingly good learning experience for me.  I thank counsel for the opportunity to experience this (and paying me to do it), though I doubt any of them will read this.   I don’t think I’d like to go through this with every case I do, but having gone through this one, it has made me, I think, a better expert consultant.

This led me to think about my training back in the day.  There is essentially no trial training in medical school, and one wouldn’t expect it.  In Fellowship, we observe testimony, get some lectures on how to give expert opinion, and perhaps go through moot court as a pretend witness.  Our competence as an expert witness is really an on-the-job-training kind of thing.  Some people learn it, and some people don’t.  I am often surprised at how some very, very good forensic pathologists make very, very bad expert witnesses (and vice versa).

I wonder if it would be worthwhile to have Fellows become immersed in a trial like this.  I kinda wish that I’d had this experience in 1985 instead of 2023.

Added note:  I am adding a post on why I consult for the defense a lot in my private consultation work.

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