Trial Tips for Lawyers for Bench & Jury Trials (Especially New Lawyers)

Transcription

1 Trial Tips for Lawyers for Bench & Jury Trials (Especially New Lawyers) St. Mary's University School of Law 2015 Homecoming CLE March 20, 2015 By: Hon. Larry Noll 408th Judicial District Court Bexar County, Texas with J. Barrett Shipp Heinrichs & De Gennaro, P.C. Trial Tips for Lawyers for Bench & Jury Trials (Especially New Lawyers) pg. 1

2 Trial Tips for Lawyers for Bench & Jury Trials (Especially New Lawyers) I. Introduction. Bench and jury trial practice continues to be a mainstay of Bexar County and South Texas practice. This paper will provide trial tips for bench and jury trials for Bexar County practitioners, particularly newer attorneys. We hope you find these tips helpful. Remember to check local rules and local practices of individual courts and adapt these tips for those specific courtrooms. The authors would like to thank Associate Judge Scott Beauchamp of the 301st District Court, Dallas County, for permission to use portions of his previous presentation on the subject of bench trials. Portions from CLE presentations previously given by Judge Larry Noll have also been included, specifically from his presentation for the Mexican American Bar Association Luncheon CLE, Top Ten Things in the Courtroom in a Bench Trial, on April 13, 2010 and CLE presentations given by Judge Solomon Casseb III, including Top Ten Tips from The Bench from our Home Office in Peoria, Illinois (a la David Letterman), as well as their combined Trial Tips for Lawyers for Bench & Jury Trials presented at the San Antonio Bar Association s Bench Motions and Trials, Bexar County Style VI, in May Trial Tips for Lawyers for Bench & Jury Trials (Especially New Lawyers) pg. 2

3 Tips for Bench Trials In certain cases, your client s chances of success are better served with a judge as a fact finder, rather than a jury. When you are dealing with legal complexities on which you might lose potential jurors, have an unsympathetic client, or emotional issues that might cloud the judgment of a fact-finder, you might minimize the impacts of those circumstances by requesting a bench trial. Here are some tips for bench trials, presented a la David Letterman s/(stephen Colbert s?) Top Ten List. 10. Always make copies of Exhibits for the Fact finder (whether Judge or Jury) and for opposing counsel. If it is something you want the judge to see and retain, ask if the Court would like to review the document for a minute or so as you cover it with the witnesses. If you want the jury to see it, ask permission to publish it -- you may then hand out a copy to each juror or, a better method, show on a projection screen. Studies show you have a much better chance of a fact finder retaining information if you tell them something and show it to them as well. Highlight or underline pertinent portions in the case law that you want the court to direct its attention to. Do this on all copies (e.g., the one provided to opposing counsel). Technically, failing to do so might be considered an improper ex parte communication to the judge. Once the evidence has been admitted, hand the exhibit to the judge evidence. Do not leave it in a stack on the rail if you truly want the judge to know what the contents are. 9. Meet with your client and important witnesses ahead of time and explain to them that if the topic comes up, it is okay to meet with a lawyer. Prior to the bench trial, cover not only expected testimony in direct and cross-examination, but also the basic rules of evidence including the hearsay rules and hearsay exemptions and exceptions. Judges frequently see a party fail to admit important evidence when they simply could have said, my husband told me and you have been able to prove up an admission by a party-opponent and avoid the hearsay objection altogether. Trial Tips for Lawyers for Bench & Jury Trials (Especially New Lawyers) pg. 3

4 Also, prepare your clients and witnesses for the responsibility and sorry line of questions. In other words, have them ready for the questions that ask, if they are willing to take any responsibility for a certain action or if they are sorry for a series of unfortunate events. You know these questions will be asked, but practitioners seldom prepare their clients to answer to these questions. 8. Remember the basic rule of Keep It Short and Simple. Be concise. When your client or you go on too long, you risk losing the judge or jury. Studies show than jurors attention spans wane fairly quickly, 20 minutes at most, so get to the heart of the matter in a reasonable time. To save time, the judge might not have to be educated as to the substantive law relating to the requested relief. Ask yourself, what does the judge need to know to make an appropriate decision? Inform them accordingly. Anticipate the questions they will ask. Point out the shortcomings or weaknesses in your case. Do not wait for it to be brought up by the other side. A necessary corollary to this rule; if the fact finder does not understand something, more often than not they will ignore the point you were trying to make or deny requested relief on that basis. 7. If a witness does not answer your question, do not just let it slide and go on to the next question. Object to non-responsiveness, then go back and make him answer the question you asked. If the witness refuses to respond on several occasions, then ask the judge to instruct the witness to answer the question. Often, the Court might do this on its own. Additionally, when you ask a witness a question and another attorney objects, if the judge overrules the objection, remember to get the answer from the witness. Too many lawyers are just following a script or thinking about the evidentiary arguments, to remember to scoop up the answer that might have been missed. Be aware and do not let this happen to you. 6. When you ask a question and obtain and answer, give the Fact finder some time to absorb the answer. Don t just immediately move on to the next question. Many lawyers have a tendency to zip through their case because they and they client are so familiar with it but, remember, the object Trial Tips for Lawyers for Bench & Jury Trials (Especially New Lawyers) pg. 4

5 of your presentation is to convince the Fact finder of your position and we must first have sufficient time to understand and absorb where you are coming from. 5. Always discuss with your client and your witness the rules regarding use of documents on the witness stand, as well as those documents the witness uses to refresh his memory prior to testifying. Always review any document, exhibit, or picture before you let the witness look at it on the witness stand because you know what happens next the other side gets to see it. And warn the witness that if they acknowledge using a document to refresh their memory prior to testifying, the Judge has the discretion to let the other side see it. 4. Don t constantly object to questions or even to answers. It annoys the jury (and, for that matter, the judge). Further, it makes them think you are trying to hide something from them. This rule is especially important if the testimony or evidence you are trying to keep out is going to come in later (as an example, through another witness). So, pick your spots. Some of the most effective lawyers I have seen rarely make an objection. 3. When you question a witness, try to tell a story. It is very frustrating to me, as a fact finder, as I m taking notes (and remember, juries also are allowed to take notes now) when, in the middle of a logical sequence, a lawyer suddenly follows a trail that is totally illogical or not connected to the story he or she was trying to tell. Again, I don t think it can be said enough times you must keep in mind that while you and your client know your story, the Fact finder is hearing it for the first time. We don t know what happened, and you cannot ever assume we do--you must tell us your story, through the questioning of witnesses, in a logical sequence. 2. You have heard many times the old adage don t ask a question on Cross to which you don t know the answer. The corollary is don t ask too many (or any) unnecessary questions on Cross- I have seen too many lawyers make the other side s case by asking too many questions on Cross. As an example, recently, in a divorce case, the Wife testified as to property values and the Husband, on Direct, did not; but on Cross, the Wife s lawyer foolishly addressed the issue of Trial Tips for Lawyers for Bench & Jury Trials (Especially New Lawyers) pg. 5

6 values with the Husband thus making at least some semblance of a case on values for the Husband, whereas, before Cross, he had none. Keep in mind that some hired guns will say anything, and the more you cross-examine them, the more they will repeat the same story, ad infinitum. The better strategy is to just nail his story down, perhaps with bullet points on a poster board as you question him (so the adverse attorney can t later say you misquoted him), and then, pass him as a witness. You attack him with your better-credentialed witness, on your direct examination, which witness presumably is more knowledgeable in the subject area than you (and, perhaps, more likeable to the jury). 1. Talk to your client about overreaching that is, don t do it! Do not let your client ask the Judge or Jury for too much and you should not either it hurts their credibility. I respond much better to a reasonable position (and I believe most people do), rather than a far left or far right or outrageously high or low position. I have often been tempted but never had the nerve to tell people after a bench trial, in lieu of argument, each of you put your most reasonable position on a piece of paper and I ll look at them and pick one or the other no argument; no compromise. Anyone got the nerve? Trial Tips for Lawyers for Bench & Jury Trials (Especially New Lawyers) pg. 6

7 Tips for Jury Trials There are many occasions in which you might find yourself requesting that a jury determine questions important to your client. Here are a few tips for your jury trial practice. 1. Be timely. If you arrive on time, you are late. You need to be at presiding, monitoring, or the courtroom in which you are assigned 30 minutes to one hour prior to the start of your pre-trial or trial settings (remember to factor in enough time coordinating with your client or third parties like witnesses or litigation support professionals). Be sure to give parking and directions to your clients and any related witnesses or trial support teams. See JAY G. FOONBERG, HOW TO START AND BUILD A LAW PRACTICE, at 388 (5th ed. ABA 2004) (providing advice regarding young attorneys first court appearances) [hereinafter FOONBERG]; See also, HON. JANET LITTLEJOHN, THE UNWRITTEN RULES OF PRACTICE IN BEXAR COUNTY, Bench Motions & Trials V: Bexar County Style, 2013 at 6 [hereinafter, LITTLEJOHN]. Make sure you have coordinated with the court clerk to know what equipment is available for your use in the courtroom. Remember that Bexar County has an audio-visual department that has a document camera, HD television, and a projector that you can connect to your laptop and project your exhibits and PowerPoint presentations for the jury. Remember that you have a professional responsibility to be punctual. See TEXAS LAWYER S CREED at IV(4). 2. Get to know the court reporter and court staff. A common mistake of jury practitioners is forgetting that the court reporter can be one of your allies in the courtroom. Prior to your trial, you should contact the court reporter regarding procedural questions and standard practices in the court. See FOONBERG at ; See also LITTLEJOHN at 8. The court reporter has probably worked with the judge for years and knows the judge s preferences that you should then use to prepare for your trial and streamline your presentation. Trial Tips for Lawyers for Bench & Jury Trials (Especially New Lawyers) pg. 7

8 The scope of this communication is limited. Remember that you are not free to communicate on substantive matters involving your case in an ex parte manner with the court staff. Id. 3. MIAO. Mark, Identify, Authenticate, and Offer. Known in trial circles as the walk and talk, this effective mnemonic is a way to remember that you have taken every step necessary to authenticate and admit a piece of evidence to the jury. See DAVID A. SCHLUETER, ET AL, TEXAS EVIDENTIARY FOUNDATIONS (LexisNexis 3rd Edition 2005), 1-7 (discussing the four-step process for handling exhibits) [hereinafter SCHLUETER]. When the evidence has been admitted, remember to publish the evidence- but do this strategically. Id. at 1-7(D). If you are publishing admitted exhibits and the jury is reviewing those documents, they are no longer paying attention to your direct or cross examination. Wait until you finish your examination then publish to the jury, unless review should be done at the same time as your examination. 4. Voir dire. This is simply the most important part of the trial. Do not tell the jurors those who make it to the jury are leftovers. This does not endear you to those that will be on your jury. You should also not promise venire members past juror number 24 that they are safe from being selected for jury service. You do not have any control over the number of peremptory strikes or excused venire person-- and might not be able to deliver on that guarantee if you make it. See also, LISA BLUE AND ROBERT HIRSCHHORN, Ten Tips for an Effective Voir Dire, 14TH ANNUAL CHOOSING AND COURTING A JURY COURSE, Chapter 9, passim (STATE BAR OF TEXAS 2010) [Hereinafter BLUE]; See generally, ROBERT T. HIRSCHHORN AND STACY M. SCHREIBER, How To Conduct a Meaningful and Effective 30-Minute Voir Dire (available at (last visited April 29, 2014). 5. Visuals. Pictures are worth a thousand words; this adage is particularly true in your jury trial presentation. Use pictures and diagrams--take the time to have them prepared and look professional. Juries see and notice these things. See BLUE at 1. Trial Tips for Lawyers for Bench & Jury Trials (Especially New Lawyers) pg. 8

9 You can also summarize voluminous evidence and present information visually, which might be difficult to digest or remember if only hearing through oral testimony or through original source documentation. See TEX. R. EVID These exhibits can then serve as roadmaps with other witnesses or for cross-examination of hostile ones; they can also assist you in defeating motions for directed verdict and also during closing arguments. 6. Body language. Know that, in reality, the jurors are not just sitting in judgment of the merits of the trial. See BLUE at 1. They are watching your every move as well as those of your clients. As Blue/Hirschorn suggest, voir dire begins the moment you enter the courtroom. BLUE passim. Your or your client s body language could hint that certain testimony was particularly damaging or that you were unprepared for a particular witness or legal argument. Your body language communicates your attitude about the court, opposing counsel, the parties, as well as the merits. Be attentive. An additional tip: do not use your cell phone or text message during trial. 7. Loose lips sink ships. Do not talk about your case in the coffee shop, cafeteria, hallway, restrooms, restaurants, out on the street, or in the elevator. Even if you have not selected a jury yet, you do not know if a venire person might be sitting within hearing distance. Be careful when consulting with your clients and other counsel and particularly so during recesses. This could result in a venire member or juror being excused or inject unnecessary error into your case. See, e.g., TEX. R. CIV. P. 226a (containing prescribed jury instructions). 8. Always speak so the jury can hear you. It is important for everyone in the courtroom to be able to hear you. Some attorneys are softspoken and do not want to appear to be raising their voices. However it is important that the judge, the court reporter, the parties, and particularly the jury can hear your questions and statements. This is particularly true for the court reporter (who will be one of the first to alert you to the situation). Trial Tips for Lawyers for Bench & Jury Trials (Especially New Lawyers) pg. 9

10 One way to prevent this problem that will also help your trial presentation is not walking or talking with your back to the jury or the judge. Interviewing jurors after the case would not be a good time to find out they were not able to hear you. This will also help you, appellate counsel, and the appellate court review what happened at the trial court level if the matter is appealed. 9. Be accurate in your pre-trial representations. In addition to being candid with the court generally, be accurate in your pre-trial representations when the court asks you how much pretrial is needed for the case. Be sure to have thought about and included this in your scheduling control order and have your motions in limine and related pretrial matters thought out and timed. See LITTLEJOHN AT 6. Try to work out these matters beforehand with opposing counsel to minimize time-consuming fights at trial. You do not want to have a venire panel or a selected jury waiting while you and opposing counsel argue for three hours over pretrial matters that should have been handled earlier. 10. Have your jury picked, seated, and sworn in by day s end. Make it your goal to have the jury picked, seated, and sworn in by day s end. Judges do not like to bring back a venire panel for a second day of questioning unless it is absolutely necessary. 11. Prepare your exhibits. Pre-mark and agree to the admission of as many exhibits prior to the start of trial. Cf., SCHLUETER at 1-7(A). Remember that you should endeavor to stipulate to uncontested facts. See TEXAS LAWYER S CREED, III(15) ( I will readily stipulate to undisputed facts in order to avoid needless costs or inconvenience for any party. ). This greatly reduces your trial time and time-consuming objections during the trial itself that proves tedious to both judges and jurors. Trial Tips for Lawyers for Bench & Jury Trials (Especially New Lawyers) pg. 10

11 Additional Trial and Local Practice Resources Rules Governing Lawyers Texas Lawyer's Creed-A Mandate for Professionalism (1989) ( hicsresources/lawyers-creed.pdf) (last visited April 19, 2014). Texas Rules of Disciplinary Conduct ( Helpline&Template=/CM/ContentDisplay.cfm&ContentFileID=96) (last visited April 19, 2014). Bexar County Civil District Court Local Rules. Civil District Court Rules, Revised. ( (last visited April 19, 2014). Books RICHARD WAITES, COURTROOM PSYCHOLOGY AND TRIAL ADVOCACY (ALM Publ g 2003) [COURTROOM PSYCHOLOGY]. JAY G. FOONBERG, HOW TO START AND BUILD A LAW Practice (5th ed. ABA 2004). THOMAS A. MAUET, latest edition of TRIAL TECHNIQUES AND TRIALS (9th ed. Aspen 2013) FRANCIS L. WELLMAN, THE ART OF CROSS-EXAMINATION (2013). RALPH ADAM FINE, THE HOW-TO-WIN TRIAL MANUAL (5th ed. Juris Publishing, Inc. Blogs 2011). ROBERT R. BARTON, FUNDAMENTALS OF TEXAS TRIAL PRACTICE (3rd ed.). DAVID A. SCHLUETER, ET AL, TEXAS EVIDENTIARY FOUNDATIONS (LexisNexis 3rd ed. 2005). The Cross-Examination Blog ( The Lawyerist Blog, specifically the Lawyering Skills portion and the Lawyerist LAB ( The Litigation Consulting Report (jury and trial resources) The Persuasive Litigator ( Trial Tips for Lawyers for Bench & Jury Trials (Especially New Lawyers) pg. 11