Suiting Up for Litigation: Focus on Pretrial Procedure
21 Pages Posted: 1 Feb 2013
Date Written: 1989
Almost every student who has taken a trial practice course while in law school is familiar with Professor Thomas Mauet's Fundamentals of Trial Techniques. That eminently readable book has guided recent generations of courtroom advocates through the basic skills of direct examination, cross-examination, the introduction of evidence, and opening and closing rgument. Now, Professor Mauet has followed with a second volume, Fundamentals of Pretrial Techniques. This book retains the prime virtues of its predecessor: readability, clarity, and accessibility for the novice trial advocate. As such, it is a welcome addition to the growing literature on pretrial practice.
With this book, Professor Mauet has, at long last, turned academic attention to a peculiar lacuna in the teaching of trial skills. Trial advocacy courses necessarily focus on certain courtroom forensic skills such as witness examination, use and handling of evidence, and summation oratory. As trial advocacy instructors well realize, teaching these skills involves a great deal of artifice. The fledgling trial lawyer typically is presented with an artificially created litigation scenario and asked to examine, cross-examine, introduce documentary evidence, impeach by prior inconsistent statement, or exercise some other trial technique.
In most trial advocacy courses, these techniques are executed with marvelous aplomb by a student attorney who has had absolutely no connection with the prior development of the case. Indeed, the typical law school trial practice course presents the student advocate with an artificially concocted case file that seemingly drops from the sky. The factual investigation, witnesses, discovery materials, and evidence mysteriously have occurred in some fictional, benign legal Oz. Although the ability to stand and deliver at a moment's notice may characterize certain legendary trial impresarios, most trial lawyers endure the trying experience of litigating a case of their own making. Law school trial advocacy courses do not sufficiently impress upon students that the trial attorney must live with the inadequacies of his or her own pretrial preparation. Thus, without careful pretrial practice the novice lawyer may fall victim to the medieval peril of being hoisted on one's own petard.
‘The new litigation lawyer,’ Professor Mauet says, is ‘quickly faced with an uncomfortable reality: Civil litigation is vastly different from studying civil procedure in law school.’5 Professor Mauet has now attempted to provide some technical guidance for the novice litigator confronted with the distressing reality of a live client appearing in one's office with a legal problem. He hopes to fill the gap between civil procedure and trial practice by providing ‘an overview that gives inexperienced litigators the basic information they need to handle routine civil cases.’ In filling this gap, Professor Mauet drew upon his own experiences as a beginning trial attorney as well as conversations with a number of inexperienced litigators. Remarkably, the novice litigators requested an overview of joinder, jurisdiction, and venue. This discouraging revelation can only prompt civil procedure teachers to wonder what on earth students were doing in first year civil procedure. Nonetheless, these requests and suggestions guide Professor Mauet's presentation of a basic course in pretrial civil practice.
Much of Professor Mauet's book is good and noteworthy. It should make even the least confident attorney feel assured upon embarking on a life of litigation. Law school graduates, whether they hang up a shingle and begin practice without ever having litigated a real case, or whether they join a litigation practice and hope to disguise the certain embarrassment of never having interviewed a real client during law school, should read the book in an evening or two. Its unpretentious text will elicit sighs of relief for its common sense discussion of all those things never learned, or only vaguely remembered, from law school civil procedure.
Keywords: civil litigation, pre-trial procedure, pre-trial, motions practice, Federal Rules of Civil Procedure, trial
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