October 20, 2005

In trial every day...

Beldar has a great post, with fascinating anecdotes, on the question of trial experience in the Miers nomination...

...Thus, I can tell you this with great confidence, even without knowing whether Ms. Miers would or would not meet my highly subjective standards for being a "real trial lawyer": JPod's [John Podhoretz's] assumption — "If Miers has spent her career helping people and corporations avoid courtrooms, that doesn't suggest she has any judicial legal skills whatsoever" — is badly wrong. His insistence that settled cases are "beside the point" means that he's never understood how litigation actually works, and that's why all those "billions" of lawyers are emailing him! It's the sort of thing that only someone very inexperienced in the American civil justice system could say....

...
The only way that lawyers who handle litigation can "help people and corporations avoid courtrooms" is by being fully prepared to go into courtrooms, and projecting to the other side their readiness and capability to do so...

This is something I can confirm. As you know, Mrs Random Jottings is a lawer. She's a skilled litigator, and takes cases to trial...and wins. However the great majority of her cases never get to trial; they are settled out-of-court.

But I can tell you, since I'm often her sounding-board, that actually she tries all of them! Every move is made with an eye on an eventual trial, and on how the other side is going to think about their chances in that trial. And as the pre-trial maneuverings go on, sometimes for years, the amount each party is willing to settle for keeps changing. If a witness looks good in deposition, or if a motion to exclude some morsel of evidence wins, then everyones calculations change...

Posted by John Weidner at October 20, 2005 11:41 AM
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