"Counsel, Control Your Client!"

• Pages: 20-21
• Date: 01 July 2024
• Author: Hon. Carl A. Aveni
• Subject Matter: Civil Law

t wasn’t that the cross-examination was actually going

badly. But the client clearly thought it was, and her audi-

ble sighs and snorts were pulling attention away from

the testimony. The furious scribbling on the notepad; the

emphatic pointing at her last note passed to counsel; the

facial grimace; each communicating the client’s displeasure not

only to her lawyer, but to the entire courtroom. It became dis-

ruptive enough that the court excused the jury and instructed

the client on the record to desist. From the heated discussion

that followed, it turned out that the client had been trying to

steer her lawyer into an improper inquiry regarding an inad-

missible collateral matter. The lawyer dejectedly requested a

limiting instruction that the jury disregard her own client’s

outbursts. But by then, the damage had been done.

Of all the challenges attendant to trial practice, maintain-

ing effective client control can sometimes be the hardest. After

all, it’s the client’s case. By the time of trial, they may have felt

aggrieved about the underlying dispute for years. They’re pay-

ing for the lawyer’s services and may feel that their purchase

entitles them to override counsel. And clients do have the nal

word regarding at least some aspects of litigation. It should be

no surprise, then, that some clients feel justied, or even obli-

gated, to impose themselves on all aspects of the trial itself.

But it’s a mistake.

The lawyer alone possesses the experience and training to

make the dozens of tactical and evidentiary decisions required

in every trial. The lawyer alone is familiar with the sometimes

“Counsel, Control Your Client!”

By Hon. Carl A. Aveni, Litiga tion News Ass ociate Editor

© Getty Image s

arcane rules of procedure and evidence. And the lawyer alone

is tasked with the responsibility of communicating a clear,

uniform message to the jury about the issues in dispute and

the evidence at hand. At best, the disruptive client muddles

that clear, uniform messaging, undercutting their counsel in

the process. At worst, the client risks sanction by the judge or

disfavor by the jury for disrupting the orderly proceedings.

Which is to say, the disruptive client risks either an unfavor-

able verdict, or in the worst cases, a mistrial.

All the Court ’s a Stage

Fortunately, these risks can be warded off through careful pre-

trial preparation and communication. By the time a case gets

to trial, the lawyer should have a good understanding of the

client’s volatility and temperament. By having a frank discus-

sion about the stresses and expectations of a trial, the lawyer

can neutralize the strong-willed or impulsive client’s instinct to

take charge or unduly react in counterproductive ways.

Lawyers already prepare their clients to testify by review-

ing the substance of their examination, as well as by practic-

ing the mechanics of being a witness—the speed and cadence

of their presentation, the clarity of their enunciation, where

to look, how to dress. But those same lawyers may be giving

short-shrift to preparing their clients for how to sit at the coun-

sel table for days or weeks on end, how to react to adverse

testimony and evidentiary rulings, or how to comport them-

selves in the hallways when on break. As a practical matter, an

SUMMER 2 024 • VOL. 49 NO. 4

20 | ABA LITIGATION SECTIO N

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