It's a good question, so if you have thoughts you might comment over at Volokh, where Adler discusses a new case on that issue -- one where the defense counsel fell asleep during the cross-examination of the defendant.
In every trial I've had that lasted over one week, someone fell asleep at least once, usually in mid-afternoon well into the trial. The strangest occasion was during a bench trial when the judge fell asleep. The opposing lawyer and I made eye contact, wondering what to do. IIRC, the other lawyer made an unusually loud throat clearing noise and the judge perked up.
[edited slightly]
This issue would be funny (ha-ha) if it weren't funny (bizarre).
I'm surprised at your experience, John. I have never had that experience, including in a case that lasted eight weeks and, in another, three weeks.
Posted by: Monroe Freedman | July 30, 2011 at 05:19 PM
I should have qualified that, as I recall that I did two very short, less-than-one-day trials in which no one fell asleep. The others dragged on and eventually someone (juror, judge, or lawyer) nodded off.
Posted by: John Steele | July 30, 2011 at 09:52 PM
I have had an experience with a judge falling asleep during argument of a cross-motion for summary judgment motion. He woke up before the argument ended, and said you are fine lawyers from fine firms, and if you can't figure it out, how am I supposed to? The case settled.
Posted by: William T. Barker | August 01, 2011 at 01:23 PM
I recommend the BBC series "Garrow's Law" which was apparently inspired by the recently digitized Old Baily records. In the 4th episode Garrow (Defence lawyer) wakes up the slumbering judge with the question "Was it then that you cut off his member?" I like to think that one of John Steele's ancestors was present, before being transported.
Posted by: Rick Underwood | August 02, 2011 at 04:30 PM
Rick, thanks for thinking of me! No transportation in my tree, as far as I know. (NTTAWWT) The Steele's arrived in the Pennsylvania colony in the first half of the 1700's as part of the Scotch-Irish migration to Pennsylvania.
Posted by: John Steele | August 02, 2011 at 05:01 PM