The English Bar In Florida 2009
By Lucinda Orr
Four of us – Niamh O’Reilly, Alice Sims, Abi Cohen and I – were delighted to have been given scholarships by the South Eastern Circuit to attend the civil advocacy program in Florida in May but were naturally a little apprehensive as to what to expect. The program involved progressing through a case study, inspired by a real-life personal injury case and also a medical malpractice case from the 1990s that had been “diabolically fused together”. In the case, a 17 year old boy broke his neck at a Fourth of July picnic, run by his father’s employer, ‘Z-Mart’. Alongside Z-Mart, the other defendants were the first surgeon who had treated the boy and the manufacturer who had produced the steel plate that had initially been inserted into the boy’s neck.
We were separated out into 6 groups of 8 lawyers for the week for working group sessions but we all came together for demonstration sessions. The faculty teaching us over the course of the week consisted of various levels of Floridian Judges and senior trial lawyers, not to mention our very own Andrew Hochhauser QC flying the flag for the more experienced end of the English Bar.
It was truly fascinating to learn about another jurisdiction; in some ways so similar and in other ways so completely diametrically different from our own. There is no denying that having a six man jury for civil trials means that the advocacy needs to be completely stripped of legalese (Lord Woolf would be very pleased!) and complex ideas conveyed (as we were often reminded) so that a ‘sixth grader’ could understand it. The presence of the jury also means that much more emotive language can be deployed – although striking the correct balance between overdosing on the saccharine and/or patronising the intelligence of the jury, is a precision art not to be underestimated.
A vague memory of voir dire hearings on the admissibility of evidence from criminal procedural classes at Bar School turned out to be something completely different in Florida (and much more exciting!) – Jury selection. Ordinary members of the public from the local area were questioned and selected, with the added fascination that the faculty members involved in the demonstration, then went on to reveal to us their reasons for striking various people from the jury box. Reasons ranged from looking a little too “hippy-ish” to the fact that apparently the generation of 20-35 year olds don’t make good jurors!
This jury was then filmed at the end of the week deliberating the outcome of the case. Suffice it to say no plaintiff lawyer in Florida will again leave a South African on a jury in a personal injury claim – the South African lady’s contributions to the jury discussions knocked down the plaintiff’s damages by several hundred thousand dollars!
Aside from the fascinating observations about the differing procedural rules of Florida, it was tremendously helpful to practise so much witness handling over the course of the week and can only be of benefit for our respective practices in this country. Furnished with real doctors, psychiatrists, metallurgists, as well as witnesses of fact who were excellently portrayed by actors, the error of the too-wide question, one question too many or simply not getting out of the witness what is needed was all thrown into sharp relief. It was also very helpful afterwards to go through a DVD of one’s ‘direct’ (examination-in-chief) or cross-examination and to deconstruct with a faculty member the precise wording and timing of each question. This process undoubtedly helped us all refine and reach another level of sophistication with witness handling.
In conclusion, the week was a fantastic experience and we are all deeply grateful to the SEC for selecting us to attend. However we must also thank the Florida Bar and every judge and lawyer on the program; not only for putting up with our incessant questions and being far too complimentary on our advocacy because of our “lovely accents” but primarily for being so warm and welcoming of us. The week truly exceeded all of our expectations.
Now, the next time we do a closing speech in this country, we need to remember that the aim is no longer to make the judge cry…