Stuart Z. Grossman - Grossman Roth, P.A.
Every experienced trial lawyer has felt it — that sense of excitement mixed with foreboding that comes with starting trial in a foreign court. How will the jury respond to my out-of-district accent? Does the other side have more clout with the court because they appear there regularly? Is my tie too loud?
My partners Bill Partridge, Gary Cohen and I began trial on December 6 in Gainesville. We are fortunate to have a compelling story to tell, and a client who desperately needs that story told. She is a young woman with children whose life was permanently altered when a nurse decided to give her heparin, a blood thinner, following the repair of an occult aneurysm in her brain. The result was a massive cerebral hemorrhage, significant brain damage, and paralysis, along with all of the social, economic and personal consequences that come with that kind of injury. Her husband provides her with 24-hour-a-day care, and her kids live with their grandparents because their mother can no longer handle the duty.
Still, for all the jury appeal inherent in a case like this, factors outside the facts play a critical part in the outcome. And while the trial officially starts with jury selection, the reality is that the trial begins long before, the first time you meet the judge, particularly in a jurisdiction where the judge is not familiar with you or your reputation. Naturally, every out-of-town lawyer perceives the risk of being “home-towned,” whether real or imagined. And there is nothing like an impending trial to set your imagination loose. Regardless, establishing credibility with the court is key, and once lost, it cannot generally be regained.
One good thing about handling a case out of town is that it forces you to consider which pre-trial motions are essential. Of course, this is a worthwhile exercise even in front of a court with whom you’ve had long experience. There is nothing that judges hate more than having to wade through an interminable series of inconsequential motions. Your willingness to dispense with minutiae and get to the things that matter will impress the court, and show that you are focused on trial. Try to consolidate as many motions as possible, so that the judge is impressed by those matters that you’ve selected. That impression will be quickly reinforced as you move swiftly and elegantly through the issues. As a general rule I am opposed to attending hearings by telephone. If you think you are at a disadvantage for being from out of town, “dialing it in” emphasizes that point. Indeed, you give up an opportunity to have face time with the judge, let him or her get to know you, see you at work, and most importantly, get a feel for the gravity of the case.
With each visit to the venue of the trial, take advantage of down time. Walk around, engage people in conversation, read the local newspaper, and by all means get a feel for the town and in particular, the defendant’s reputation. In our current trial, a prominent local institution is one of the named defendants, along with a foreign corporation and a nursing agency. Our voir dire will explore relationships with and attitudes toward that institution. We will raise the fact that we are lawyers from South Florida and that our client now lives in St. Petersburg. We will ask the jurors, as we often do in these circumstances, whether we can get a fair trial in Gainesville. There is no point in being shy. This is the elephant in the room, and we need to know how much it weighs.
In case you’re wondering, the bright ties that I favor remain home in Coral Gables. My wristwatch has a rubber strap. None of my clothes have logos, particularly that of my beloved University of Miami. All of my clothing for the trial was selected by me with the venue in mind. The only luxury in my trial bag is a bottle of Johnny Walker Gold, which will remain closed until the jury has rendered its decision.
By STUART Z. GROSSMAN
Grossman Roth, P.A.
2525 Ponce de Leon Blvd., Suite 1150
Coral Gables, FL 33134
South Florida Legal Guide 2011 Edition