The courtroom moves fast at trial. When you are trying to take notes as a witness is testifying, lots of things can cause you to miss vital testimony. First, you may be sitting far enough away that you are blocked by a portion of the witness stand, or by the monitor sitting on the witness stand, or by the podium. Second, the court clerk will take phone calls during testimony, and you may be unlucky enough that one or more calls impair your ability to hear. Third, your client may tap you on the arm and start whispering in your ear about either the testimony or with a question. Finally, there may be other activity in the courtroom that is either distracting or that you need to watch (e.g., other lawyers talking behind the bar, or juror actions that you must observe).
To avoid missing testimony because of where your seat is located, move! Get up and position yourself behind opposing counsel’s table, either seated or standing, so that you have a good view of the witness and can hear properly. This is quite a normal happening, and judges understand and permit it. If you are questioned, just respond – on the record – that you can’t hear or see properly from your chair.
If you miss testimony because of other courtroom noise or because your client has whispered in your ear, stand up and ask that the testimony, or the previous question or answer, or both, be read back by the court reporter. If you missed more than one question or answer, ask that the previous two or three questions and answers be read back.
Don’t hesitate to do this! Again, the courtroom is a fast-paced environment. You are only human, and if you are a new attorney, it is very easy to miss things as you adjust. Your job requires you to hear the testimony – all of the testimony. The thing you miss may be a key to the case, or an important point for cross examination.
Don’t be ashamed, and don’t be hesitant. You’re a professional, and a professional takes action to remedy a problem without regard to personal embarrassment. Make sure that, in the moment, you know exactly what has been said.