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A dilemma that no junior associate hopes to encounter is seeing their boss make a mistake in the courtroom. However, whether or not it's your boss, a lead attorney, or co-counsel, how you interact with the attorney presenting your client's case while they're actually presenting it is critical.
Whether it's an incorrect citation, or using the wrong client's name, or completely missing a significant material fact, the one thing you know for sure is that telling them could go horribly if you do it the wrong way, and it'll be much worse if you're wrong. It's not only when you tell them, but how you tell them also matters.
Below, you'll find a few tips on how to point out mistakes without upsetting your boss or lead counsel.
Passing notes on index cards, small paper pads, or even color-coded sticky notes are all great ways to be able to pass on a quick bit of information to lead counsel. However, there may be another method your lead counsel prefers. Since they are leading, it is up to them. But, it is also up to you to ask.
If there's a witness on the stand, or an argument is being presented, that is definitely not the time to speak up, at least with your voice. Even though your boss may be missing the most important element of your cause of action, you need to keep quiet, not interrupt, and still manage to somehow save the day.
This is where color coded notes can prove truly beneficial. For example, a red sticky note could denote important info that requires attention and possibly a break, while yellow ones are for less important issues that should still be read before releasing a witness or moving on, and green is if there is an administrative matter. Only if it really, and I mean really matters in a significant way, being as subtle as possible, pass a note without saying anything, and make sure it is 100% legible. If it is not an absolute emergency, wait until there's a decent break in the action before passing the note.
While it could potentially save the day if you speak up, you should know whether it will be welcome, or if there will be consequences (if it's your boss).
If you are second or third chairing a case, just like advising a client on proper courtroom conduct, you should be able to find 60 seconds to ask how lead counsel wants notes shared during trial. If they say no notes while they're talking, ask about extreme situations, or forgetting to ask witnesses about certain matters.
As an attorney, even in second or third chair position, your observations during trial can actually be rather helpful. Don't shy away from asking lead counsel strategy questions about the day's proceedings, as it may better prepare you for upcoming days, or maybe weeks, of trial.
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