A Judge's Perspective

• Publication year: 1999
• Citation: Vol. 34

34 Creighton L. Rev. 3. A JUDGE'S PERSPECTIVE

Creighton Law Review

Vol. 34

HON. JOHN D. HARTIGAN, JR.(fn*)

Trial advocacy is a broad, and at times, irrationally complex field. Rules of evidence and procedure, with origins that are centuries old, are used to address principles of substantive law that sometimes involve a limitless arrays of facts. This is done in an adversarial contest that is simultaneously presented to three different audiences: the jury as the judges of the facts; the trial judge as the legal gatekeeper and instructor; and the reviewing court. This juggling act is first experienced in trial advocacy class. The class brings together students who already know the evidentiary and procedural rules with students that are familiar with the substantive legal rules that apply to specific cases. But the students have not been challenged to apply that knowledge in a multidimensional forum, with an opponent testing and a critical judge overseeing, each move that the student makes. It can be a maddening experience, for the students, and the instructor. At times, the exercises must seem like a group of children pounding square pegs into round holes. However, there is also an occasion for laughter, as instructors and students inevitably find themselves in impossible predicaments that even Rumpole of The Bailey would enjoy. Additionally, trial advocacy class presents, sometimes, real artistry.

A trial court judge might welcome the opportunity to instruct a trial practice course to law students for the same reasons that a law student might wish to enroll in such a class. The trial practice class offers (at least it did for this beginning judge) a chance to hone one's knowledge of evidence, the time with which to develop a clearer understanding of the trial process, and a chance to live through the gutwrenching difficulties of trying a case for the first time. The trial practice class gives each of its participants a forum within which to integrate the abstract knowledge of the law with the practical skills that are necessary to try a case competently. Just as every surgeon must one day operate on his or her first patient, a judge and a lawyer must eventually step into the courtroom to try his or her first case. The prospect is a daunting one.

In addition to the fear of personal embarrassment and public...