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.

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