Idaho Senior District
D. Duff McKee
When examining a witness, there is no reason to take
a pencil or pen to the podium. There is no need to
take notes. A lawyer needs to pay attention to the
witness, to look and listen to what is going on, and
to observe the impact of every answer. He cannot
do this while scribbling on his pad with his head
down. The note-taking lawyers are legion who are
so concerned with getting the answer down in their
notes that they are not aware of the impact of their
questions, or of the witness’ reaction, or even if the
answer is complete to the question asked. If notes are
needed, assign this task to a paralegal.
The impression the lawyer makes during jury
selection is going to follow him throughout the trial.
If he is charming and cordial to the venire panel dur-
ing voir dire and then totally ignores the seated jury
Always on Trial
Lawyers are constantly being judged, and not just from the bench
BY IDAHO SENIOR DISTRICT COURT JUDGE D. DUFF MCKEE
during the trial, or treats them like cattle or a flock of
sheep, or is condescending and talks down to them
like preschool morons, all this will be remembered
when it counts. A jury trial is a seamless continuum.
Anytime the lawyer is anywhere near a courthouse,
he is on stage. Everyone knows not to overreact in the
courtroom—but how about the halls, the elevators,
the restroom, the parking lot and the corner coffee
shop? If a lawyer does or says something stupid
anywhere, somebody is going to see it. And Murphy’s
Law says: The dumber the act and the more important the trial, the greater the likelihood that somebody who sees it is going to be a member of the jury.
Planning and preparation includes everything. The
need to be alert and pay attention never stops.
McKee also practices ADR and mediation in Boise