Norm Pattis made the mistake of agreeing to have his case tried before a Magistrate Judge in the District of Connecticut.  It hasn’t turned out very well for him.

Norm describes how the federal rules of evidence are supposed to work, how objections are supposed to be made and how the court is supposed to be fair in its application of the rules to both sides.  He also describes how this isn’t happening.

Norm’s description provides a critical lesson for less experienced lawyers and non-lawyers alike.  One is often left with the impression from the various discussions in the blawgosphere, particularly from the lawprofs, that the law consists of highly thoughtful, intellectually sound and deeply nuanced application of rules.  But lawprofs spend their days discussing decisions of the United States Supreme Court, which sits at the top of the federal judiciary food chain.  Norm’s trial is happening at the bottom of the food chain.

This is what I call the trenches.  I might call it the gutter, but that would be derogatory, and lawyers are prohibited from denigrating the judiciary so I would never do so. 

Reality in the trenches is very, very different from the rarefied atmosphere of the Supreme Court.  No thousand eyes and ears parsing every word, every argument, every subtle nuance.  Just the participants engaged in a very rough approximation of the things discussed publicly in Washington.

By the time a case tried in the trenches makes its way onto anybody else’s radar, it’s been sanitized and gussied up to give it the appearance of what we have come to believe is a trial.  But like making sausages, watching it happen is ugly.  Should this trial ever make it to the Supreme, you wouldn’t recognize it.

Some judges give great trials.  Some trials just go smoothly.  And some go like Norm’s. 

So the lesson is that life in the trenches may bear no relationship to our nice discussions about the law.  In some trials, objections may be sustained or overruled in a fashion that seems so arbitrary and capricious as to make everything we learn, everything we discuss, seem like a cruel farce.

For young lawyers, when the day comes that you end up on trial before a judge who seems to be operating under a set of rules that is foreign to everything you know, realize that this is life in the trenches.  Norm does what most young lawyers are unprepared to do.  He stands his ground, risking the anger of the judge and the outside chance that he’s going to get pounded for his insolence.  Most young lawyers will collapse in the face of a heavy judicial hand, lacking the security of knowing that they are right in their position and fearing the power of the majestic robe.

When you are young, you tend to give judges a great deal of credence.  As you age a bit, you realize that judges may not be as brilliant, fair or knowledgeable as they appear.  You still show deference, but maybe not as much and with far less concern for what the judge will think of you. 

For any reader who has, or may have, a case that will go to trial, this reflects the variable that you will confront.  If you find yourself before a great judge, you may have a great trial.  But it’s quite possible that you will find yourself before a judge who shoots without aiming, who seems remarkably unfamiliar with all those silly evidentiary rules that lawyers use when devising their strategy and expect to have in their corner when executing it.  In other words, some trials feel like they’re being tried in the District of Wonderland.  Don’t ask your lawyer to explain it.  There’s no explanation.  It is life in the trenches.

The degree of frustration that comes with bizarre rulings is overwhelming.   Lawyers cannot plan to apply rules that don’t exist or exist only for one side.  What do you do when you make a Crawford objection, and the judge responds, “Crawford, Schmawford.  Next question.”

There’s always an appeal, but the fact remains that trial provides the best chance of winning, and we want to win at trial.  I would venture to say that most judges give us good trials.  But there are a lot of judges, and that means that there are still a lot of judges who will make trial rulings like the ones Norm has gotten.  If you try enough cases, you’re going to end up with one of these judges eventually.  And that’s life in the trenches.