What I Have Learned from Judges: Ten (More) Secret Lessons from a Trial Lawyer
by Justice Thyme
Judges have taught me many lessons. I don’t claim that these lessons apply all of the time. I’m
sure there are exceptions. There have to be. It’s the law. Because judges can be wrong (can we say that in print?), sometimes it’s advisable not to follow their lead. They have to be right at least 50 percent of the time — or at least one side has to think they’re right. Very often, they are extremely wise and learned scholars, and it would benefit us to learn some of the lessons they impart. Here are 10 more lessons imparted to me, either by experience or observation:
1. Put it in context immediately. In trial, don’t forget the F.R.E. 106 objection — Remainder of or Related Writings or Recorded Statements. Here’s the scenario. The opposing party reads a sentence out of a document to the jury, taking it out of context or conveniently omitting the best part. Such as, "this is a binding document," without reading the next part, "that can be invalidated at the whim of either party." There are at least two responses. One, wait for cross-examination and bring it up again and impeach; or two, take a federal judge’s advice and make the Rule 106 objection immediately, rather than waiting for cross-examination. Here’s the rule: When a writing or recorded statement or part thereof is introduced by a party, an adverse party may require the introduction at that time of any other part or any other writing or recorded statement that ought in fairness to be considered contemporaneously with it. Fed.R.Evid. 106. Get them to read the rest of the sentence immediately, so the jury doesn’t get lost. You’ll remember later (hopefully). The jury may not.
2. Just one more question. If you’re in trial or in a hearing and you say, "Just one more question," or, "Just a couple of follow-up questions, Your Honor," be prepared to stick to it. No matter how compelling the testimony — or how much it screams for another follow-up question — the judge might shut you up after your one question.
3. Disclose early, and often. Whenever you obtain a new document that is important enough to attach to a motion, be sure to supplement your Rule 26 Disclosures ASAP. It can be easy to overlook, because all parties have copies with the motion. This will help in preparing the trial exhibit list. If it’s not listed on the exhibit list for some unknown reason, and if you neglected to supplement disclosures, it’s not coming in as evidence when you later decide that it’s a critical document during the middle of the trial. If you’re lucky, you might find a way to introduce it as rebuttal evidence, if the other side opens the door.
4. Your witness list is your word. I learned this one quite innocently, taking a thrashing, although the judge was respectful in the thrashing. I was ready for trial — ready for every witness for every day of the week-long trial. I naively assumed that opposing counsel was, too. At the last minute, I decided to change the order of my witnesses, for what I thought was efficiency purposes. So, I called the witness out of order. Opposing counsel nearly had a coronary, and the judge immediately summoned us to the Bench. In our side bar, the judge asked me if I had given a witness list, which of course, I had. I’ll never forget his next words to me: "You’re going back on your word?" I was horrified and dismayed that my word was in question. I had not contemplated the idea that in making a "minor" modification to the order, I was going back on my word. Trial witness lists are serious business. There are exceptions to this, however. Witness illness might necessitate a change in order, but the opposing counsel (and the judge) is relying on your filings as your word. Have a good reason if you decide to change the order of your witnesses.
5. Don’t use first names in federal court. In law school, we learned in our trial advocacy class to "humanize" our clients by calling them by their first names. Don’t do it in federal court. State court may be another story, depending on the judge.
6. Read the judge’s trial procedures. Repeatedly. The U.S. District Court for the District of Colorado has an excellent website. The judges frequently update their procedures (some more than others), and it’s amazing what a lawyer can learn by reading the procedures — before the hearing.
The Judges’ procedures are at http://www.co.uscourts.gov/judges_frame.htm.
7. Read the court rules and the local rules. Recently, a federal magistrate judge actually read a rule from the Bench to a lawyer who was asking for something clearly not required by the express language of the rule. It was embarrassing to see the lawyer squirm. He obviously was using the state rule, when the federal rule has different requirements. Read the rules you are invoking. The local rules for the District of Colorado are online at http://www.co.uscourts.gov/rules_frame.htm.
8. Bring your file to court. It should go without saying. It’s hard to imagine a lawyer going to a hearing without his file. A lawyer was observed recently in a federal court hearing without a file. Without a pen. All he had was a water bottle. And his client was not impressed when the judge asked if the attorney had memorized the file. He hadn’t. It wasn’t pretty.
9. Try not to bicker about dumb stuff. Not everything is worth fighting over. Sometimes you can help your client by working with, and not against, opposing counsel.
10. Talk about the law. One of the best days of my career was in a hearing before a judge I had heard was difficult, to say the least. Several lawyers warned me about him. After hearing the stories, I half expected to meet a half-human/half-werewolf. He held the hearing in his chambers, with just the three of us — two opposing lawyers and the judge with the bad rap. We debated the law and talked about our differing views of how the cases had interpreted certain statutory provisions. We even talked about legislative intent and whether it was being implemented. It was fun. He didn’t rule that day, which may have contributed to the jovial nature of the discussion of some heavy legal concepts. It was great to rise above the petty bickering and actually talk about the law.
Justice Thyme is a practicing trial lawyer and will present, "What I Have Learned from Opposing Counsel: Ten Secret Lessons from a Trial Lawyer" in the next edition of The Docket.