Practice Tip: Making the Judge Happy

2. Make your Pretrial Submissions Reasonable

Most “[t]rial judges are generalists. ' They know a little about a lot. ' ” Peter R. Bornstein, Persuading a Cold Judge, Litigation, Winter 2009, at 28. Research your judge's experience in product liability cases. The amount and depth of information needed to assist the judge may depend on whether he or she has tried product liability cases on or before taking the bench.

You should submit a trial brief unless the judge will not allow one. A trial brief will give the judge and clerk an overview of your case and help them prepare for trial. The trial brief should be concise, not an in-depth exposition on every expected issue. In a product liability case, acquaint the judge with the product and how the accident happened, and highlight important evidentiary and legal issues.

Many judges do not like motions in limine because often lawyers file too many and make them too general. Such motions, however, help the judge understand important legal issues and manage the trial. The judge will want to discuss issues such as admissibility of other accidents or subsequent remedial measures before trial. Motions in limine should be reasonable in number and length. Resist the temptation to file generic “omnibus” motions or rehash issues resolved at summary judgment.

To reduce the number of motions, confer with opposing counsel to determine which issues will be contested. Make your briefs concise, and specify exactly what evidence you wish to preclude. If there are many motions in limine, make a checklist so the judge can keep track of which motions have been granted, denied or deferred.

If there are significant Daubert/Frye challenges to experts, ask the judge to schedule the hearing on those motions well in advance of trial. Rulings on such challenges may obviate many motions in limine and other trial issues.

Streamline your exhibit list as much as possible. In many product liability trials, both sides list hundreds of exhibits and use only a fraction. Some judges require the parties to submit copies of exhibits; the result can be many voluminous notebooks that are cumbersome at trial. Work hard before trial to list only exhibits you are reasonably likely to offer. Determine whether the judge expects you to list scientific articles, even though they will not be admitted, or impeachment evidence.

3. Be Prepared

“Preparation is the hallmark of the good trial lawyer. It is also a sign of respect for the judge, the jury, and the entire judicial process.” Richard B. Klein, A Dozen Ways to Anger a Judge, Litigation, Winter 1987, at 5.

Judges like lawyers who know their case and are prepared. Have your witnesses ready to testify and alert the judge to scheduling problems. When you examine a witness, have paper or electronic exhibits ready to use. Understand the process for qualifying an expert in the jurisdiction. Take time to practice with courtroom technology so there are no interruptions.

When you lay foundation for a critical exhibit or opinion, have an outline or a copy of the evidence rule at counsel table or podium to guide you in your examination. Be prepared with impeachment materials and know how to use them to impeach a witness.

4. Be Honest

Be faithful to the facts and the law in your presentations to the court and jury. You will gain credibility with the judge by staying true to the record and law. Answer the judge's questions directly. “[N]ever try to blow smoke at the court. '” Sylvia Walbolt, Twenty Tips from a Battered and Bruised Oral-Advocate Veteran, Litigation, Winter 2011, at 55. If you make a mistake, “correct it at the earliest opportunity.” James W. McElhaney, Talking to Judges, A.B.A. J., Feb. 1991, at 90. Apologize if appropriate.

Keep your promises to the judge and jury. If you say you have only 10 minutes of questions, keep your examination to 10 minutes or less. If you say you have only one more question, then make it one question.

5. Preview Issues So There Are No Surprises for the Court

While counsel will not want to divulge trial strategy, some sharing of information is necessary to avoid surprises for the judge and interruptions in the trial. Show opposing counsel your exhibits and electronic presentations to be used in opening statements. Avoid using contested exhibits or argument in your opening statement, or obtain a ruling from the judge well in advance.

When you intend to offer a controversial exhibit, alert the judge in advance. The court may wish to hear argument or consult legal resources to be prepared to rule on the exhibit. In a product liability trial, counsel may wish to display the actual product, an exemplar product, model, accident simulation, or product testing. Each of these strategies may implicate significant issues affecting their admissibility. Give the judge an opportunity to hear arguments well before you wish to make such displays.

6. Make It Easy for the Judge to Make Rulings

“Lawyers who make judges happy are the ones who make life simple for the judge. I am not talking about the making of decisions; that is part of the job of a judge. What makes life difficult for judges is when information is given to them in a shotgun manner without organization or plan.” ' Former Minnesota Trial Court Judge

7. Be Organized in Your Submissions

Make sure the judge can quickly get to the heart of the issue. In many cases, the parties will submit prior testimony to be read or displayed by video. Often, such testimony is repetitive and boring. Streamline deposition designations as much as possible. Alert the judge well in advance when rulings must be made on objections to such testimony. Highlight a transcript with the parties' designations and flag the testimony to which objections are asserted. Edit video depositions to delete objections and stricken testimony well in advance of their display to the jury.

In most cases, you can agree with opposing counsel to submit a joint set of preliminary jury instructions. Submit separately only the instructions on which you cannot agree. Most judges are reluctant to depart from pattern jury instructions. When you submit requested instructions, make it clear (with underlining or strikethroughs) how you have changed pattern instructions.

Prepare pocket briefs ' just two or three pages in length ' dealing with specific legal or evidentiary issues that may arise at trial. A quick read of relevant authorities will assist the judge in resolving these issues.

8. Be Professional in the Courtroom

Show respect for the judge, jury, courtroom staff and opposing counsel in all your courtroom dealings. “[C]ivility is not a sign of weakness, and ' incivility and intemperance may be perceived as signs of weakness ' and disorganization.” Susan Steingass, A Judge's 10 Tips on Courtroom Success, A.B.A. J., Oct. 1985, at 71.

Always stand when addressing the court or jury. Not only does standing show respect (and is required by most courts), it will make your presentation more effective. Voir dire will be your first chance to discuss your case with the jury. Do not be argumentative or ask for commitments from prospective jurors to support your case. Object only to questions where the answers really matter. State your objection and briefly state the ground or rule; do not make speaking objections. Do not request excessive bench conferences. Judges hear many objections every day; they can usually deal with objections without argument.

In addition, do not address witnesses or refer to others by first name, unless the witness is a child. Use formal names in the courtroom that do not suggest familiarity. Keep a straight face in the courtroom. Do not exhibit disapproval to the judge, witness or opposing counsel with facial expressions or body language. Do not disrupt opposing counsel's presentation. Do not signal answers to a witness. Do not distract proceedings by rustling papers or loudly conferring with co-counsel. In legal arguments, address the court, not opposing counsel. Be professional in dealings with opposing counsel, and do not denigrate them to the judge or jury. Give your opponent reasonable notice as to when you will call specific witnesses, and expect the same courtesy from your opponent. Often, counsel can agree to exchange the names of the next day's witnesses at the end of the trial day.

Prepare your clients and witnesses to abide by these same rules. They should also be instructed on courtroom rules and cautioned not to violate motions in limine. They must not cause distractions in the courtroom.

9. Move the Trial Along

If there is a chance of settling the case, resolve settlement discussions before trial. Settlement talks during trial are distracting and time-consuming. The judge will not want the jury to sit idly while you explore settlement.

Generally, the parties should stipulate as to authenticity of exhibits unless there is genuine dispute. Counsel should agree upon one set of basic exhibits such as medical records or product manuals. It will be confusing to have the parties refer to two or more versions of the same documents.

You will want to emphasize your trial themes, but you should avoid excessive repetition. Calling multiple witnesses to address the same issue, eliciting overlapping expert opinions, and repeating questions with the same witness will try the court's patience. If counsel anticipates a problem with a witness or exhibit, raise the issue with the judge in advance, so the judge can hear and resolve the issue before it is time to call the jury. Do not waste the jury's time by raising legal issues when you should be presenting evidence.'

10. Think Like a Judge

After you have tried several cases, you will gain insights into how judges make decisions at trial. When dealing with an important trial issue, put yourself in the judge's place. How is the judge likely to perceive the situation? What information would be helpful to resolve the issue? How can information or arguments be presented to make it easier for the judge? What resolution will move the case along, avoid prejudice to all parties, and preclude appeal issues? Your arguments and briefs should be fashioned to make it easier for the judge to rule in your client's favor.

11. Treat the Judge's Staff Respectfully

Show the same respect to clerks, court reporters and bailiffs as you show the judge. Being respectful is the right thing to do, but also the judge will know if you are not treating courtroom staff well.

Assist staff members with their duties. Speak clearly for the record and provide the court reporter with spellings for names and technical terms. At the end of each day, someone on your trial team should help the clerks reconcile exhibits referenced that day. Assist clerks in tracking which exhibits were offered, admitted or denied, and in gathering exhibits for the record. In addition, provide courtesy copies of briefs and other filings to the judge and law clerks. Check on whether they prefer electronic or hard copies or both.

12. Treat an Unfriendly Judge Respectfully

Most judges will try to provide an even playing field to all parties. You may occasionally encounter a judge who does not like you, your client, or your case. The judge may snarl at your arguments, refuse your entreaties for bench conferences, and overrule your objections to all but the most outrageous of your opponent's tactics. Still, you should remain professional and respectful and resist the tendency to react in kind. The jury hopefully will reward you for your best behavior.

In these cases, you may be able to turn the judge around by persistent professionalism. If not, you must make a record of the judge's conduct so you can address it on appeal, if necessary. Insist upon on-the-record discussions and submit written offers of proof. In extreme cases when judges roll their eyes or exhibit other prejudicial body language, it is necessary to recite these instances on the record.

Conclusion

Your goal at trial should be to achieve the best results for your client, and to do so, you need to be the most effective advocate. But “most effective” does not mean a “take no prisoners” approach to advocacy. Making the judge happy will help you be more effective. You are likely to win the judge's favor by being prepared, organized and professional.

George W. Soule, a member of this newsletter's Board of Editors, is a partner at Soule & Stull LLC, Minneapolis. Soule was Chair of the Minnesota Commission on Judicial Selection and President of the Minnesota American Indian Bar Association. He now serves as Vice-President of the Minnesota Chapter of American Board of Trial Advocates.

Making the judge happy will help you be more effective at trial. If you follow the rules and procedures, and help the trial run smoothly, the judge may listen to you better and credit your argument. The judge's reaction to your presentations may also influence the jury's feelings about you and your case. You may gain acceptance or favor with a judge by being prepared and organized, acting professionally, and learning from experience. This article suggests specific ways to help make your product liability trial successful.

1. Follow the Judge's Standing Orders and Courtroom Procedures

Most judges have standing orders that specify many pretrial and trial requirements. You should diligently abide by these orders. Judges may have additional, unwritten requirements or preferences for trial submissions and courtroom procedures or etiquette. For example, in some courtrooms, you may not re-cross-examine a witness or you may have to tender a witness as an expert before you can ask for opinions. Some judges have expectations as to where lawyers may stand when they are questioning witnesses or addressing the jury. Most judges require the parties to meet and confer on motions and many other aspects of trial practice. Before your next trial, research resources available online, talk to the judge's staff, check with other lawyers who have tried a case before the judge, or watch a trial to learn these requirements.

2. Make your Pretrial Submissions Reasonable

Most “[t]rial judges are generalists. ' They know a little about a lot. ' ” Peter R. Bornstein, Persuading a Cold Judge, Litigation, Winter 2009, at 28. Research your judge's experience in product liability cases. The amount and depth of information needed to assist the judge may depend on whether he or she has tried product liability cases on or before taking the bench.

You should submit a trial brief unless the judge will not allow one. A trial brief will give the judge and clerk an overview of your case and help them prepare for trial. The trial brief should be concise, not an in-depth exposition on every expected issue. In a product liability case, acquaint the judge with the product and how the accident happened, and highlight important evidentiary and legal issues.

Many judges do not like motions in limine because often lawyers file too many and make them too general. Such motions, however, help the judge understand important legal issues and manage the trial. The judge will want to discuss issues such as admissibility of other accidents or subsequent remedial measures before trial. Motions in limine should be reasonable in number and length. Resist the temptation to file generic “omnibus” motions or rehash issues resolved at summary judgment.

To reduce the number of motions, confer with opposing counsel to determine which issues will be contested. Make your briefs concise, and specify exactly what evidence you wish to preclude. If there are many motions in limine, make a checklist so the judge can keep track of which motions have been granted, denied or deferred.

If there are significant Daubert/Frye challenges to experts, ask the judge to schedule the hearing on those motions well in advance of trial. Rulings on such challenges may obviate many motions in limine and other trial issues.

Streamline your exhibit list as much as possible. In many product liability trials, both sides list hundreds of exhibits and use only a fraction. Some judges require the parties to submit copies of exhibits; the result can be many voluminous notebooks that are cumbersome at trial. Work hard before trial to list only exhibits you are reasonably likely to offer. Determine whether the judge expects you to list scientific articles, even though they will not be admitted, or impeachment evidence.

3. Be Prepared

“Preparation is the hallmark of the good trial lawyer. It is also a sign of respect for the judge, the jury, and the entire judicial process.” Richard B. Klein, A Dozen Ways to Anger a Judge, Litigation, Winter 1987, at 5.

Judges like lawyers who know their case and are prepared. Have your witnesses ready to testify and alert the judge to scheduling problems. When you examine a witness, have paper or electronic exhibits ready to use. Understand the process for qualifying an expert in the jurisdiction. Take time to practice with courtroom technology so there are no interruptions.

When you lay foundation for a critical exhibit or opinion, have an outline or a copy of the evidence rule at counsel table or podium to guide you in your examination. Be prepared with impeachment materials and know how to use them to impeach a witness.

4. Be Honest

Be faithful to the facts and the law in your presentations to the court and jury. You will gain credibility with the judge by staying true to the record and law. Answer the judge's questions directly. “[N]ever try to blow smoke at the court. '” Sylvia Walbolt, Twenty Tips from a Battered and Bruised Oral-Advocate Veteran, Litigation, Winter 2011, at 55. If you make a mistake, “correct it at the earliest opportunity.” James W. McElhaney, Talking to Judges, A.B.A. J., Feb. 1991, at 90. Apologize if appropriate.

Keep your promises to the judge and jury. If you say you have only 10 minutes of questions, keep your examination to 10 minutes or less. If you say you have only one more question, then make it one question.

5. Preview Issues So There Are No Surprises for the Court

While counsel will not want to divulge trial strategy, some sharing of information is necessary to avoid surprises for the judge and interruptions in the trial. Show opposing counsel your exhibits and electronic presentations to be used in opening statements. Avoid using contested exhibits or argument in your opening statement, or obtain a ruling from the judge well in advance.

When you intend to offer a controversial exhibit, alert the judge in advance. The court may wish to hear argument or consult legal resources to be prepared to rule on the exhibit. In a product liability trial, counsel may wish to display the actual product, an exemplar product, model, accident simulation, or product testing. Each of these strategies may implicate significant issues affecting their admissibility. Give the judge an opportunity to hear arguments well before you wish to make such displays.

6. Make It Easy for the Judge to Make Rulings

“Lawyers who make judges happy are the ones who make life simple for the judge. I am not talking about the making of decisions; that is part of the job of a judge. What makes life difficult for judges is when information is given to them in a shotgun manner without organization or plan.” ' Former Minnesota Trial Court Judge

7. Be Organized in Your Submissions

Make sure the judge can quickly get to the heart of the issue. In many cases, the parties will submit prior testimony to be read or displayed by video. Often, such testimony is repetitive and boring. Streamline deposition designations as much as possible. Alert the judge well in advance when rulings must be made on objections to such testimony. Highlight a transcript with the parties' designations and flag the testimony to which objections are asserted. Edit video depositions to delete objections and stricken testimony well in advance of their display to the jury.

In most cases, you can agree with opposing counsel to submit a joint set of preliminary jury instructions. Submit separately only the instructions on which you cannot agree. Most judges are reluctant to depart from pattern jury instructions. When you submit requested instructions, make it clear (with underlining or strikethroughs) how you have changed pattern instructions.

Prepare pocket briefs ' just two or three pages in length ' dealing with specific legal or evidentiary issues that may arise at trial. A quick read of relevant authorities will assist the judge in resolving these issues.

8. Be Professional in the Courtroom

Show respect for the judge, jury, courtroom staff and opposing counsel in all your courtroom dealings. “[C]ivility is not a sign of weakness, and ' incivility and intemperance may be perceived as signs of weakness ' and disorganization.” Susan Steingass, A Judge's 10 Tips on Courtroom Success, A.B.A. J., Oct. 1985, at 71.

Always stand when addressing the court or jury. Not only does standing show respect (and is required by most courts), it will make your presentation more effective. Voir dire will be your first chance to discuss your case with the jury. Do not be argumentative or ask for commitments from prospective jurors to support your case. Object only to questions where the answers really matter. State your objection and briefly state the ground or rule; do not make speaking objections. Do not request excessive bench conferences. Judges hear many objections every day; they can usually deal with objections without argument.

In addition, do not address witnesses or refer to others by first name, unless the witness is a child. Use formal names in the courtroom that do not suggest familiarity. Keep a straight face in the courtroom. Do not exhibit disapproval to the judge, witness or opposing counsel with facial expressions or body language. Do not disrupt opposing counsel's presentation. Do not signal answers to a witness. Do not distract proceedings by rustling papers or loudly conferring with co-counsel. In legal arguments, address the court, not opposing counsel. Be professional in dealings with opposing counsel, and do not denigrate them to the judge or jury. Give your opponent reasonable notice as to when you will call specific witnesses, and expect the same courtesy from your opponent. Often, counsel can agree to exchange the names of the next day's witnesses at the end of the trial day.

Prepare your clients and witnesses to abide by these same rules. They should also be instructed on courtroom rules and cautioned not to violate motions in limine. They must not cause distractions in the courtroom.

9. Move the Trial Along

If there is a chance of settling the case, resolve settlement discussions before trial. Settlement talks during trial are distracting and time-consuming. The judge will not want the jury to sit idly while you explore settlement.

Generally, the parties should stipulate as to authenticity of exhibits unless there is genuine dispute. Counsel should agree upon one set of basic exhibits such as medical records or product manuals. It will be confusing to have the parties refer to two or more versions of the same documents.

You will want to emphasize your trial themes, but you should avoid excessive repetition. Calling multiple witnesses to address the same issue, eliciting overlapping expert opinions, and repeating questions with the same witness will try the court's patience. If counsel anticipates a problem with a witness or exhibit, raise the issue with the judge in advance, so the judge can hear and resolve the issue before it is time to call the jury. Do not waste the jury's time by raising legal issues when you should be presenting evidence.'

10. Think Like a Judge

After you have tried several cases, you will gain insights into how judges make decisions at trial. When dealing with an important trial issue, put yourself in the judge's place. How is the judge likely to perceive the situation? What information would be helpful to resolve the issue? How can information or arguments be presented to make it easier for the judge? What resolution will move the case along, avoid prejudice to all parties, and preclude appeal issues? Your arguments and briefs should be fashioned to make it easier for the judge to rule in your client's favor.

11. Treat the Judge's Staff Respectfully

Show the same respect to clerks, court reporters and bailiffs as you show the judge. Being respectful is the right thing to do, but also the judge will know if you are not treating courtroom staff well.

Assist staff members with their duties. Speak clearly for the record and provide the court reporter with spellings for names and technical terms. At the end of each day, someone on your trial team should help the clerks reconcile exhibits referenced that day. Assist clerks in tracking which exhibits were offered, admitted or denied, and in gathering exhibits for the record. In addition, provide courtesy copies of briefs and other filings to the judge and law clerks. Check on whether they prefer electronic or hard copies or both.

12. Treat an Unfriendly Judge Respectfully

Most judges will try to provide an even playing field to all parties. You may occasionally encounter a judge who does not like you, your client, or your case. The judge may snarl at your arguments, refuse your entreaties for bench conferences, and overrule your objections to all but the most outrageous of your opponent's tactics. Still, you should remain professional and respectful and resist the tendency to react in kind. The jury hopefully will reward you for your best behavior.

In these cases, you may be able to turn the judge around by persistent professionalism. If not, you must make a record of the judge's conduct so you can address it on appeal, if necessary. Insist upon on-the-record discussions and submit written offers of proof. In extreme cases when judges roll their eyes or exhibit other prejudicial body language, it is necessary to recite these instances on the record.

Conclusion

Your goal at trial should be to achieve the best results for your client, and to do so, you need to be the most effective advocate. But “most effective” does not mean a “take no prisoners” approach to advocacy. Making the judge happy will help you be more effective. You are likely to win the judge's favor by being prepared, organized and professional.

George W. Soule, a member of this newsletter's Board of Editors, is a partner at Soule & Stull LLC, Minneapolis. Soule was Chair of the Minnesota Commission on Judicial Selection and President of the Minnesota American Indian Bar Association. He now serves as Vice-President of the Minnesota Chapter of American Board of Trial Advocates.