What’s your emergency plan for jury trials?

In every football game, coaches make decisions about whether to take a timeout, to accept a penalty, or to go for it on 4th down.  These decisions must often be made in a split-second, and can affect the entire outcome of the game.  Anyone who’s watched football has probably heard the old mantra, "Every second you leave on the clock unnecessarily may be the one your opponent uses to beat you."

That’s why football coaches spend so much time studying clock management techniques.  They think their way through every timing possible scenario before they take the field, because they know that they’ll eventually run into a situation where they need to make a split second decision.

How do they do it?  They script out their decisions in the calm of their office, before they run into the problem on the field. They know that their minds don’t work their best when dealing with distractions, time pressure, and screaming fans, so they figure out what the best possible response should be beforehand, and then implement it on the field.  

These coaches prepare charts to tell them when to kick and when to go for the 2 point conversion. They have charts to help them decide whether or not to stop the game clock.  They have charts to tell them whether or not to accept penalties.

Every conceivable problem gets mapped out before they take the field, so that they can make the best decision when it counts.

But what about you and your trial practice preparation?  Do you have a plan in place for dealing with emergencies?

Think about all of the things that could possibly go wrong in your next trial. Here are some examples:

  • Your star witness is late…
  • Your start witness doesn’t show up…
  • Your exhibit is excluded…
  • The judge reverses his pre-trial ruling and admits your opponent’s exhibit into evidence…
  • The judge reverses his pre-trial ruling and doesn’t admit your exhibit into evidence…
  • Your objection is overruled…
  • Your opponent’s objection is sustained…

Do you have responses prepared for these scenarios?  If not, you need to invest some time burning the midnight oil and crafting a solution to each of those potential problems.

You’re not going to win jury trials because you’re the most attractive lawyer in the courthouse (even though you are, gorgeous!) or because you’re the smartest person in the courtroom (even though you are, Einstein!) Nope, you’ll win jury trials because you’re the most prepared lawyer in the courtroom, and you’ve thought of responses to every possible problem.

Being a trial lawyer is kind of like being a top notch surgeon performing an appendectomy.   Removing the appendix is easy.  Heck, I could probably teach you how to do it in a 30 minute seminar.  But surgeons don’t get paid the big bucks because they know how to remove the appendix — they get paid the big bucks because they know how to respond to the thousand different complications that can arise while you’re removing it.

That’s why you get paid the big bucks.  Trying cases is pretty easy. A high school student could probably do it if everything went according to plan. But things never go according to plan, and that’s why you get paid the big bucks.  Script out your responses to all of the different scenarios before trial begins, and you’ll be the lawyer representing the prevailing party, rather than the lawyer apologizing to your client.

The Judge has Spoken… But Did You Get a Ruling?

Judges are just like everyone else: They hate to be told, “You’re wrong.” In fact, some judges are so afraid of having their rulings overturned by the appellate courts that they’ve decided to take an easy way out: They’ve stopped making rulings!  After all, if there isn’t a ruling, there’s nothing for the appellate court to overturn, right?  Here’s a typical scenario:

Attorney #1: What happened at the executive council meeting?

Witness: Well, I heard that…

Attorney #2: Objection! Hearsay!

Attorney #1: It’s not hearsay, your Honor, because [reason].

Judge: Move it along, counselor.

Attorney #1: Ok. Let’s talk about [different subject]…

Situations like this arise every day in courtrooms around the country. Using a combination of body language, tone, and other non-verbal behaviors, judges subtly encourage lawyers to rephrase questions or move on to new topics. When you’re caught up in the heat of battle, it feels like the judge has issued a ruling, so you rephrase your question or move onto another topic. In reality, no ruling has been issued, because the judge hasn’t ordered you or your opponent to do anything. A common term for describing this type of action is called a “non-ruling.”

The most effective “non-ruling” judges you’ll encounter are often the friendliest judges you’ll encounter in your practice. These judges succeed at “non-ruling” by drawing upon your inner desire to be a consummate professional, while also creating a congenial courtroom attitude. By encouraging both litigators to just “go along and get along,” they can avoid issuing stern rulings (and also avoid a reversal from the appellate bench). Usually, “non-rulings” will be disguised as kindly suggestions, such as, “Why don’t you go ahead and rephrase your question, ok?” Since you don’t want to stir up the pot, you’re usually inclined to go along with the judge’s suggestion.

Here are some other common methods judges use to issue “non-rulings”:

  • “Move it along, counselor.”
  • “Please rephrase your question.”
  • “Ask a different question.”
  • “Go ahead.”
  • Silence, combined with a scowl of the face or a nod of the head.

From a day-to-day practice point of view, “non-rulings” probably aren’t that big a deal for experienced trial lawyers, because it’s easy to rephrase your questions and work around them. However, here are two reasons why you should be wary when a judge issues “non-ruling.”

First, if you’re a neophyte lawyer, you’re probably a little nervous in the courtroom. When the judge tells you to “move it along,” you’re likely to overreact, skipping past evidence that should be admissible.

The second (and more insidious) problem with “non-rulings” is the effect they have on your appellate record. “Non-rulings” leave the losing party without an appellate remedy. In the event of a non-ruling, the appellate court will always uphold the lower court decision. Why? Because the judge didn’t order either party to do anything. Instead of issuing an order, he simply left the matter in your hands and your opponent’s hands. If you decided not to ask the question or not to admit the evidence, that’s your fault, not the judge’s fault, and the appellate court can’t help you.

So what do you do? How can you fix the situation? Well, it depends. First, you should decide if you really need the judge to rule. Sometimes, a non-ruling is all you need. If you’re the one who’s been objected to, you can simply rephrase your question and seek another way to introduce your evidence. If you’re the one objecting, you’ve put your opponent on notice not to go down that road, and that may be enough to keep him from revisiting the issue.

But let’s say that you really need a ruling. What do you do then? If you need the judge to rule, you probably shouldn’t tell him what to do. After all, nobody likes to be told what to do, especially judges. Instead, consider asking the judge for a ruling. Obviously, you’ll need to be polite when asking the judge for a ruling. Here are a few examples of how to ask:

  • The polite request: “Your Honor, before I continue, could I ask you to rule on the objection?”
  • The clarification: “Judge, can I clarify your ruling? You’re ruling that the entire conversation is hearsay, right?”
  • The inferential nudge: “So you’re sustaining my objection, your Honor?”

Most of the time, non-rulings won’t cause any permanent damage to your case. However, when you need the court to issue a ruling, you really need the court to issue a ruling. In those situations, make sure you’ve got your ears perked up to listen for any “non-rulings,” and then be prepared to correct the situation before your case goes to the appellate level.

Don’t Exclude the Jurors from Your Bench Conferences

When was the last time you watched someone else try a case?  Have you ever snuck into a courtroom and watched your opponent present a case?  If not, let me recommend you jump at the opportunity to watch someone else pick a jury and present their case.  If you do, you’ll learn some things that you wouldn’t normally notice about successfully trying cases.

Last year I had the opportunity to watch numerous jury trials and critique the performance of the attorneys.  When I watch a trial, I try not to read the case file or review a case summary, because I don’t want to know any more about the case than the jury would.  I want to be completely detached from the emotional background of the case, so that I can just sit in the back row and watch the trial unfold, critiquing the trial from the jury’s perspective.

Watching all of those trials, one of the things I noticed was just how irritating bench conferences are.  In one of the trials I watched last year, the attorneys seemed to spend more time presenting their cases to the judge than they did presenting their cases to the jury.  When most attorneys approach for bench conferences, they violate a cardinal presentation tip: Never turn your back on your audience.

Have you ever seen a live theater performance?  No matter where the actors move on the stage, they  never turn their backs on the jury.  It’s the same on TV.  You’ve probably noticed how TV families are always gathered on one side of the dinner table, right?  That’s so they don’t turn their backs on the camera and exclude anyone in their audience.  You know how rude it feels when someone turns their back on you.  But when you approach for a bench conference, that’s exactly what you’re doing.  You’re turning your back on the jurors.

The second problem with approaching the bench to argue a point of law is that you form an elite little club that excludes everyone else in the courtroom except you, your opponent, the judge, and the court reporter.  As I watched the attorneys huddle around the bench and whisper, I wanted to lean in and listen to the conversation.  I wanted to know what was going on.  And I was resentful that I was being excluded from their group.  Here are two lessons you can apply in your next trial to avoid ignoring or excluding your jury:

LESSON #1: Argue the Law Before Trial

The bench conferences I saw involved points of law that should have been handled before trial.  If you’re waiting until the day of trial to argue essential points of law or limit your opponent’s introduction of evidence, you’re waiting too late.  File motions in limine before trial, and you’ll be able to argue those essential points of law in advance of trial, minimizing the need for legal discussions during trial.

LESSON #2: Don’t Turn Your Back on the Jury

If you must approach the bench to argue a point of law or respond to an objection, make sure you don’t exclude the jurors from your discussion.  That doesn’t mean raising your voice so they can hear what you’re saying — that’s improper.  But you can use your body language to include the jury at the bench.  Rather than turning your back on the jury, just turn your body half way or 3/4 of the way towards the judge.  Leave part of your body “open” towards the jury, and they won’t feel completely excluded.