By Alina C. Hachigian
This summer I had the opportunity to intern with Fitch Law Partners. In addition to assisting attorneys with research and deposition preparations, over the course of the summer I was able to experience law outside the office as well. I traveled to different courts around the city and sat in on various matters ranging from criminal to family law. With each visit I began to better understand the in-court portion of litigation and the amount of intricacies that must come together within the courtroom in order to win a case. Exposure to this aspect of litigation provided me a more detailed view of the process as a whole and I found myself becoming more critical of the system itself. I questioned the purpose and effect of each dynamic I discovered in the courtroom and how such aspects affect different individuals. Overall, these experiences gave me a more nuanced view of litigation and allowed me to better consider how this type of work plays out within the framework of our society today.
For my first trip to court, I tagged alongside a handful of the attorneys from the firm. This was my first introduction to the actualities of court. From the room itself to the countless decisions handed out by the judge, the day carried a sentiment of truth and hope for justice. The particular matter that day centered on was an allegedly stolen trade secret from an American company by a Chinese one. As the hearing began and I sat in the bench in the gallery listening to the litigators make their cases, I noticed something very surprising; having never been to court before, the vision I had conjured in my head came from mostly books and movies where the judge acts more as a viewer than a player, sitting back and passively listening to the two sides argue and speaking only to deliver the final verdict. This assumption was instantly proven false as the judge who sat in front of me swiftly interrupted the lawyer from our firm to ask questions and probe deeper into the claims being made by our counsel. That is when it struck me that this type of work is less about fighting than it is about persuading. It’s easy to assume that a lawyer’s job is to fight tooth and nail against the opposing side, but in reality it is exponentially more important to be clever, persuasive and clear rather than pugnacious. After all, the psychology of the judge is not only at play but arguably the most important aspect of the proceeding. Thus, I quickly understood that the goal is not so much to knock the other side, but rather pick up on the way in which the judge is thinking about the case and use the most convincing logic to suit their thought process. I had the opportunity to see this in action, as the judge in this matter was initially very skeptical of the claims our side presented. I was able to watch as our firm’s lawyer seamlessly addressed the skepticism of the judge and tactfully pitched his alternate take on the matter, ultimately resulting in the removal of two different counts in favor of our side.
This result highlights another insight I gained: not all court proceedings end in a final verdict. This point may seem simple, but for someone who is so new to the proceedings of legal affairs this was a new piece of the puzzle. Before this matter commenced, I was informed that what I was sitting in on was not a trial, but rather a hearing where one can argue to dismiss or modify certain motions and even withdraw legal representation. This illuminated the idea that there is no single war but rather many little battles for which arguments have to be craftily formed as well as logically and concisely articulated in order to be won. I saw this play out as our lawyer stressed different aspects of the case: combatting different claims, and making novel arguments, as well as employing different forms of critical thinking and analysis. Thus, the purpose of court is to wield the law to construct compelling arguments, one after another, and prepare insightful responses to anticipated claims from the other side so as to have consistently persuasive answers to every count raised and supremely satisfy the judge’s quest for truth and understanding.
After gaining a better understanding of what court generally entails, I became curious about the intricacies of a case subject to trial by jury. Fueled by this inquiry, I traveled to Massachusetts Federal Court, where I sat in on a criminal case involving two men who allegedly conducted different forms of misconduct in relation to the country of Haiti. When I walked into the trial, I sat down in the back bench and quietly began to gain my bearings. There was a witness being cross-examined, and I quickly picked up on the fact that he was being very uncooperative. He would ask for clarification of simple questions, avoid giving direct answers and even refuse to answer at all unless he had transcripts of past conversations. This resulted in a very disjointed examination with the topic changing frequently, due to such inadequate responses, and sadly I couldn’t help but feel as though the lawyer was disorganized and scrambling. No matter how hard I concentrated or how many notes I took, I was unable to extract any real significance from the approximate hour of questioning.
This experience was quickly juxtaposed with the following direct examination during which the same witness was not only extremely cooperative but pleasant as well. He’d constantly look at they jury when answering and smiled as he readily agreed to almost every question without hesitation. The complete and obvious switch in the witness’s disposition, tone and behavior was hard to miss. Although he was providing key evidence now in favor of the side currently examining him, the switch cost him his credibility in my opinion and I remained unconvinced. I was aware of my own thought process on this matter but soon wondered how this whole scene played out in the minds of the jurors. To me, the jurors could choose to either take the experience at face value, meaning view one side as disorganized and fruitless, or they could choose to pick up on the major response differences and doubt both testimonies.
This is when it became clear to me that having a trial by jury adds complexity to the process. Now, instead of worrying about just the psychology of one familiar judge, one must keep in mind the psychology of twelve average citizens. Most likely, these citizens do not have extensive legal knowledge and are not accustomed to typical courtroom proceedings. This can translate into jurors having difficulty discerning the important aspects of a questioning from the more frivolous ones and a greater temptation to rely on their gut feeling. I realized, now in a different context, that being a good lawyer is not just about proving a point. As a litigator attempting to appeal to a jury, it is extremely beneficial to read situations, such as cross-examinations, and know when to back off to avoid harming one’s credibility in the eyes of the jurors. Thus court becomes a juggling act between providing well-articulated arguments and carefully extracting supporting evidence without displeasing the jury.
Moving away from the psychology of bench and jury trials, my exploration of court took me to the psychological health of people themselves.
I took the opportunity to expand my breadth of law experiences and journeyed to the Suffolk Probate and Family Court. Here, I stumbled into a long court session handling adult guardianship hearings. After some brief research, I learned that these hearings are colloquially known as Rogers hearings, after the decision in Rogers v. Commissioner of Department of Mental Health that compelled Massachusetts Probate and Family Courts to rule on the authorization of guardianship for the purpose of administering antipsychotic treatment to incapacitated individuals.
In the back left bench of the courtroom, I listened to these requests and watched the legal representatives of Boston hospitals, mainly Beth Israel Deaconess, ask the judge to grant their hospital guardianship over countless adults with declining mental health. Surprisingly, the judge took only a few minutes to look over some papers and occasionally ask a clarifying question or two before allowing the transfer of guardianship. What really brought to life the reality of these decisions was the fact that some patients were present in the courtroom, one of whom was sitting next to me. The combination of knowing the purpose and seeing part of the impact of these hearings swiftly scrapped the traditional, slightly ruthless image that lawyers sadly hold and instead painted them in a much softer light as here they stood before the judge transparently asking for the right to better the lives of incapacitated individuals. This experience highlighted their ability and dedication to helping those who can’t help themselves and while this point may be more obvious due to the nature of the Rogers hearings, I believe this idea of advocacy is at the core of all litigation. Zooming out to the field as a whole, in order to succeed one needs to have a passion for figuring out how to obtain the best outcome possible for a client: thus, being a client’s advocate is a vital part of the job.
This belief that the fundamental job of a litigator is to support clients in the best way they know how sparked my curiosity and led me back to the Suffolk Probate and Family Court, where I attempted to explore the alternative experience of those who choose to forgo, or can’t afford, such legal counsel. In order to attend such a trial, I went to the clerk’s office and asked for the schedule of all the court appointments occurring the next day. After flipping through the list I came across a pro se trial where in fact both sides were choosing to represent themselves. The next day I showed up early at the proper courtroom and watched as the judge took care of a variety of smaller matters. As time passed, I became more doubtful, and soon there had been forty-five minutes without a single sighting of either person. After a couple more moments of sitting in silence, the judge called me up to her stand. This caught me by surprise as I always viewed the judge as somewhat of an unapproachable figure, but I walked up to her seat and there she explained the situation to me. I learned that this case was supposed to be about the custody of a child but as it turns out both parties are notorious for not showing up and this would be the fifth time the trial has been pushed back. The judge also informed me about how both parties claim to suffer from mental illness and that on more than one occasion both parties will call the court saying they are in the hospital or on their way to one and thus can’t make it.
Although I didn’t get to see a pro se trial actually occur, I still feel as though I got a taste of the experience. In the case I attended, the judge speculated that the participants weren’t in a stable frame of mind and were probably too nervous to show up. Moreover, they were likely to have no familiarity with family law, and neither the court nor a lawyer could effectively hold either party accountable. The accumulation of these unfavorable aspects proved to me just how unequipped the parties are to handle the situation in which they find themselves. What I found most saddening though was the fact that this was for a custody case, one that is already very emotionally charged by nature and done with the intention of bettering a child’s life. The fact that these individuals already started off with what is undoubtedly one of the messiest and heart-wrenching cases to argue on a completely different playing field than those who can afford an attorney seemed, in a word, wrong.
This realization is what made me stop for a moment and think critically about the legal system we have in this country and if there is anything that can, or should, be done to make it more equitable. There are lawyers, a few of whom I’ve had the opportunity to work with this summer, who have mastered the art of managing the psychology of judges and juries. The field itself has made strides in using the law to set precedents for helping certain populations in need, as seen with the Rogers hearings. Yet with such bright minds and holistic forward progression, inequity like the experience described above still remains, making me ponder what can be done to bridge such gaps. Why should economically disadvantaged people be denied the same legal opportunities? Should only criminal offenses qualify for state-provided lawyers? Are pro bono cases the only solution to such issues? As a person thinking about entering the field of law, these are the questions I ask and I yearn to understand the complexity of their answers. Overall, I think it’s important to do one’s job well, but I do not believe this is one’s only responsibility. I feel that one has a duty to consider if the system they are playing into is just: a duty to critique the field in which one has such immense breadth and depth of knowledge for the purpose of improving it for all.
Alina C. Hachigian was a summer intern at Fitch Law Partners LLP in 2019. She is a member of the Class of 2022 at Harvard University.