Interview With Simon H. Rifkind (Litigation Journal Sept. 1984).
Q. Judge there has been a great deal of criticism of the lack of ability of lawyers to try a case. Is this criticism valid?
A. Well, I have seen trials conducted with extraordinary skill, and great dramatic effect, in the best style that one could possibly imagine. I have also seen trials that were bumbling and poorly done. That’s always been true… .I’m not aware of any decline in the capacity of trial lawyers.
Q. What are the requirements of a successful trial lawyer?
A. It is essential a trial lawyer come into the courtroom knowing his case.
A, he must know the facts.
B, he must know what he is trying to establish.
C, he should have a strategy and a program for achieving it.
To illustrate when I was a Federal District Court Judge for the Southern District of New York I would occasionally have a lawyer come up and say: “Does your Honor want an opening statement?”
To me this is a foolish inquiry. It is like the producer of a play opening the curtain and saying: “Members of the audience, would you like a prologue or would you rather do without one?”
Q. So what would you do to become a quality trial lawyer?
A. Now of course experience helps. A good apprenticeship is helpful. Emulating a master of the art is always a useful thing, but I have always said you have to be yourself. I can’t overstate the point that every trial is theatre, every trial lawyer is a performer, and he must have his style. He has to be himself, natural to himself, compatible with his spirit, with his physical well being, with his appearance, with his dictation, with his style.
Q. Do you try a case before a jury different than a bench trial.
A. I do not distinguish between a jury trial and a non jury trial. I regard a non-jury trial as a trial before a one person jury.
You have an audience, you are writing a play in competition with another playwright who is trying to write a different play. It takes a lot of skill and effort, but it is theatre, there is no question about it. Any significant trial is a contest, and every contest involves a sense of emotional tension.
The only difference between a bench trial and a jury trial is in a bench trial we have a very experienced theatre goer. Nonetheless, a theatre goer with emotion and a heart waiting to decide for the better play.
(Edited by PAT).