Have You Sat Before This Judge Before?

Remember to let the judge sit down before you do.
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Closure: Coming Soon To A Courthouse Near You

Perhaps this is unique to California, but I just received another announcement from our attorney service of a courthouse closure. In addition, the notice mentioned yet another court that, although not closing altogether, was being reduced by several newly darkened courtrooms.

As a lawyer who makes his living doing things court-related, I’m both saddened and alarmed to learn that entire courthouses are closing. It’s not that I’m sad or afraid because there are fewer lawsuits being filed (that appears to remain on the rise), but rather that there’s a rapidly shrinking number of venues available to resolve those disputes. It will take longer for cases to get to trial, resulting in fewer trials and less access to justice. It will also make it harder for newer generations of lawyers to get trial experience. (This is obviously a secondary concern, but it is a legitimate concern for many of us.) It’s . . . a . . . disappointing to live in such a perpetually mismanaged state. But I’ve been thinking about ways the judiciary and our profession can cope with this situation and I’ve come up with a couple of ideas.

First, I recently co-authored an article for the ACC Docket which talked about the notion of a “compressed” trial, in which the judge forced the parties to present a case that would normally consume 3 weeks in just 4 days. Much of the article discussed tips and suggestions how to better prepare for this kind of compressed trial format, but I also argued that lawyers and their clients should not just accept such a drastically condensed trial, but actually embrace the concept. After all, if a trial that would normally consume 3 weeks could be reasonably condensed down to 4 days,* that would free up 2 weeks in which two more highly compressed trials could be completed. Imagine completing 3 trials in the time if used to take to do just one.

There was a program introduced in some parts of California for the 1 day jury trial. I don’t know if that was successful or is still being practiced. But that’s not what I’m advocating. If the lawyers can shape a case to be tried in a day or less they will almost always do so on their own. But it takes a pretty heavy-handed judge to force the lawyers and parties to condense a 3 week presentation to something like 4 days. Perhaps more judges should do this. Just a thought.

Another idea involves ADR. If budget cuts are effectively privatizing access to justice in some places, it ought to at least be done right. A major concern centers around the cost of ADR, and I’m not talking about the hourly fees of neutrals. In my experience, the rates of most neutrals are commensurate, or even slightly less, than those of the attorneys appearing before them. But there are costs associated with working with an “institutional” ADR provider that tend to give our clients pause, and with good reason. If law firms are going to be squeezed and forced to do more for less, shouldn’t ADR providers do the same? What about more “solo” ADR providers?

My personal beef with ADR, at least arbitrations, is the inconsistent application of the rules of evidence. Appellate courts keep judges honest, but some arbitrators can and do dispense with evidence rules rather freely, which makes the hearing something of a chaotic free-for-all.

There’s no real silver lining to the issue of darkened courtrooms and closed courthouses. Wherever it occurs, there is reduced access to justice. Perhaps, though, we can collectively brainstorm and come up with constructive ways to manage the problem.

*Whether it was in fact “reasonable” for the judge to compress the trial this aggressively was a subject of some debate, particularly by counsel for the losing side which, fortunately, was not me.

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The Trial Lawyer’s Need To Control The Middle of The Board

Visiting with my brother over the Thanksgiving holiday, our talk turned to strategy in chess. I confessed that, after about the fourth or fifth move in any game, I’m invariably at a loss for what to do next. My brother pointed out that, like so many games (and sports), the most important factor is to control a particular environment or space within the board.  “Just like you want to control the ‘T’ on a squash court,” he said, “you always want to control the middle of the board in chess.”

Later the same day, in writing another blog post, I was looking at the brilliant primer on trial advocacy prepared by my former partner, Lee Horton. Among his rules in the Preface, I came across the following:

“I attempt to control the case and the environment in which it is presented. The best prepared lawyer is almost always in the best position to control a witness or the flow of evidence. But controlling the courtroom environment is also important. I try to reduce the potential prejudicial variables in a courtroom to as few as possible. Remember, a juror associates everyone in the courtroom associated with you with your client’s claim. Therefore, I only want essential personnel in the courtroom. I also believe that those which do come into the courtroom should be properly schooled on courtroom attire and conduct. This may sound extreme, but I can point to three large cases that were lost because of a lack of consideration of the potential prejudice which can come from an out-of-control courtroom environment. In one case, the jury got mad because of the note-passing between the defense counsel and their client in the audience. In another case, the jury perceived the defense as dishonest because a paralegal frequently found herself in the bathroom with jurors on a break. In the last example, the jurors resented smirks from unknowing associates who came to watch their first trial.”  (Emphasis added.)

Taken in the most literal sense, I’ll admit it’s something of a stretch to analogize the courtroom environment with the center of a chess board, or the “T” in squash. But I think there is something here worth observing. While just controlling the courtroom environment by eliminating harmful distractions isn’t a recipe for automatic victory, the failure to maintain control at any point in the jury’s presence can be fatal.

In a less literal sense, however, there may be something more to the analogy.  After all, controlling the center of the chess board, or the “T” in the squash court, will always put the opponent on the defensive (at least until she over/re-takes the middle of the board or the “T” area of the court). As I’m a lousy squash player, I’m familiar with the feeling of trying to over/re-take the “T”. In other words, I’m familiar with being on the defensive in squash and, as a result, I lose most games.

But I never like the feeling of being on the defensive in a case or in the courtroom (even when representing a defendant). I do know the feeling, though. Naturally it can happen when one party has far better evidence, or when parties are not in comparable financial positions, such that continued or aggressive litigation will financially exhaust one party (or their lawyer) before the other. But these are circumstances beyond any lawyer’s control (at least any defense lawyer–a prosecutor or plaintiff’s lawyer should be able to choose better cases).

More commonly, though, I’ve seen it (or experienced it myself) by coming “late to the party” or being underprepared for an event, like a deposition or a hearing. I so hate that feeling I try never to be on the defensive for the wrong reasons. Like so much else in our profession, it comes down to preparation. By being the better prepared advocate, I control the “T” of the squash court, the middle of the board.

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If The Courtroom Clerk Seems Grumpy, There Is A Pretty Good Reason


I have previously written about the importance of maintaining a good rapport with courtroom staff.  If you are in a California courtroom, and you notice the clerk and other staff seem less . . . er . . . satisfied with their jobs, I might have an idea why.  The Daily Journal reported Wednesday that “[a]fter years of automatic pay increases for employees at courts across the state, budget cuts have stopped so-called cost-of-living adjustment pay increases at many courts.  Now some court administrators are considering reducing for freezing ‘step increases’ which are part of many employees’ union contracts.”  This is in contrast 3-5 percent annual cost-of-living pay increases in California’s largest courts in the years before the recession started.

I suppose in the pyramid of bad news, a salary freeze ranks below a layoff.  But the courts have already been through layoffs and furloughs and, as the cost of everything from housing to cars to groceries climbs, these employees will begin feeling poorer before too long.  The best of the bunch (i.e., the better educated, organized, more motivated) will likely scout out better employment.  Some who are loyal to a particular judge might also stay.  But a pay freeze isn’t going to make anyone happy and, as Lisa Major, Assistant General Manager of the Orange County Employees Association, pointed out, “[e]liminating step increases in general, if you’re looking at it from a human resources perspective, is never a good idea.”

Brace yourselves, California litigators, our courts are going to seem more and more like a chapter out of Kafka.

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Levity in the Courtroom? Yes! Provided . . .

An article in the Wall Street Journal Tuesday discussing the Rajat Gupta insider trading trial in NYC pointed out that the judge and the accused’s defense attorney, who are apparently longtime friends, have been cracking jokes throughout trial in and outside the presence of the jury.  The article posed the question, but did not weigh in, on whether humor in the courtroom is a good idea?  Well, when it’s the judge making the wisecracks there’s not a lot counsel can do, so why not laugh along.  But when, if ever, is it appropriate for counsel to inject levity into the courtroom?

I think some humor can serve two useful purposes.  First: it breaks the tension that naturally develops in a courtroom, where freedom, money, reputation or all three are at stake.  Second, depending on timing, humor can break the monotony and actually “wake up” the proceedings a bit.  The problem is, the parties, their lawyers, the judge, the clerk, bailiff, court reporter, observers and, most importantly, the jury, may find different things funny (or not so funny).  An intentional joke can fall flat or, worse, offend.  That said, here are my thoughts on the uses of humor in the courtroom:

1.  It’s not appropriate when it’s not appropriate.  This presumes we all possess at least some judgment and, let’s face it, some of us don’t. So, by way of illustration, when the subject matter of the trial is catastrophic injury (burn victims, etc.) or heinous crimes (rape, murder, etc.), there’s a 99.9% or better likelihood that any joke is going to offend someone.  So steer clear. Don’t even try it.   There’s probably nothing funny to Rajat Gupta about going to jail and facing jail time, yet it’s his own lawyer making the jokes, so presumably it’s ok.  (“What, I’m paying you $1,000 an hour and you’re making jokes?”)

2.  Take your cue from the judge.  The judge always sets the tone of the courtroom.  If the judge makes a funny, then humor may be acceptable in his or her courtroom.  Pay attention to whether the judge allows humor when jurors are present.  Even if laughter is permitted outside the presence of the jurors, a joke could be sanctionable conduct if made when there are jurors present, particularly if your opponent or his/her client is the butt of the joke.

3.  Know when to stop.  Here, again, we need to exercise our judgment and some of us don’t have any.  So, to be safe, stop while you’re ahead.  If something you said elicits a chuckle, leave it there.  Because I’ve never been great at timing or telling jokes, I would never intentionally try to be funny in the courtroom.  The stakes are too high and I don’t want to risk it.  When I have been funny, however, it has always been accidental and usually something self-depreciating I’ve said or done.  People seem to appreciate humility.

So . . . in my view, using humor in the courtroom is a mixed bag.  I almost always appreciate it when the judge says something to break the tension, but I’m loath to try it myself.   What do you think?

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