Category: Judge’s Corner

The Honorable Charles M. Zennaché, Lane County Circuit Court

Whenever you try a case, there are several target audiences of whom you need to be aware. There are the usual primary target audiences: the judge and the jury. There may also be secondary targets, such as the person paying your fees or the court of public opinion. The potential target audience that is often forgotten is the appellate courts.

As we all know, resources are stretched thin in our state courts. In Lane County, where I serve, very few cases proceed to trial with the benefit of a court reporter. As a result, transcriptionists must later transcribe the audio recording from trial for the appellate courts’ review. Those transcriptionists and the appellate courts must therefore rely on trial attorneys and judges to ensure a clear and well-preserved record for appeal.

Unfortunately, I regularly see trial attorneys fail to take the steps necessary to ensure a good record for appeal. Preserving your record for appeal requires more than jumping through procedural hurdles like taking exceptions and making offers of proof, although those things are important and are briefly addressed below. The tips below are intended to provide reminders to trial attorneys for making a good record for appeal. Following these tips may also help you communicate effectively with your primary target audiences.

1. Identify yourself and the party you represent.

I find that I often have to ask attorneys to state their names for the record. This is not because I have a bad memory. You should always state your name and who you represent so the record is clear. And if you represent more than one client in a single docket (show cause or probation violations, for example), state your name each time you speak on behalf of a different client.

2. Speak only when you are near a microphone.

In Lane County, we do not have particularly sophisticated recording devices. Rather, our microphones are aged and they do little to amplify proceedings. As a result, it is easy for lawyers to forget the need to be near a microphone when speaking. During opening statements, for example, lawyers often address the jury from the well. While I encourage attorneys to move about the courtroom freely, I also urge you to be aware of the location of microphones in the courtroom and to speak only when you are near a microphone. If you decide to move away from one of the microphones on counsel table, make sure you move to someplace near one of the other microphones in the room. If you (or a witness) are not picked up by a microphone, then the important things you (or the witness) said will not be part of the record on appeal.

3. Don’t be afraid to move the microphone.

The judge and court staff may not notice that a microphone needs to be moved. For example, during voir dire, I typically have the jury box and witness box microphones pointed toward the potential jurors since they are responding to questions during that part of the proceeding. When counsel begins their opening statements, however, those microphones should be pointed toward the well. If you notice that a microphone needs to be moved, ask the court if you can move it to ensure a good record for appeal.

4. Make sure questions are answered orally.

Although people may naturally respond to a question by nodding or shaking their heads, that response is not adequate for the record. Since we no longer have court reporters to note that the witness nodded his head or shook her head, it is important to make the record clear as to whether, for example, a witness answers “yes” or “no.” While I try to make sure that the intention behind nods or shaking heads are clarified orally on the record, I don’t always catch them. Help yourself by making sure that the answer to every question is oral.

5. Provide detailed descriptions of visuals.

Similar to the need to clarify non-verbal answers, you should remember to provide an oral description of any gestures or use visual aids provided at trial. For example, if your witness has pointed to a spot on a map in the courtroom, you should describe the area of the map to which the witness has pointed for the record. If the witness gestures as part of her answer, describe the gesture. This is not a time for advocacy; fairly describe what the witness has done, don’t add to it. As a trial attorney, you must ensure that the audio recording clearly and adequately reflects any visual provided at trial.

6. Make sure people speak up.

Okay, so the witness answered orally. Good enough? Not if the answer was so low that the record could not pick it up. If you have a witness who is having trouble speaking up, ask him or her to lean in close to the microphone. Also, remember that it is natural for people to raise or lower their voices depending on how close they are to each other. Thus, when you approach the witness to ask her questions, her natural tendency will be to lower her volume, which presents problems for the record, judges, and jurors. Likewise, whenever you ask the witness to step down form the witness stand and enter the well, have her speak up loudly.

7. Clearly and consistently identify documents.

Sometimes it seems that the days of formal document identification have faded even though the need for such formality remains. For some attorneys, the problem may be rooted in trial preparation (or a lack thereof). In that case, the cure is basic: Come to court prepared. Label exhibits before your trial date. Whenever you hand a witness a document (except perhaps those used to refresh recollection), note for the record that you are handing the witness the document marked as Exhibit X. Continue to identify all documents by their preassigned numbers throughout the trial even if the document is never offered or received. Remember: exhibits do not have to be received in sequential numeric order and numbers can be skipped. Once an exhibit has been introduced into the record (note I did not say received), do not give that number to any other document. If the parties stipulate to the admission of an amended version of a document, give that document a different number (for example, 104A).

8. Be aware of noise you or your client may inadvertently be making on the record.

The recording device is not always your friend. It often seems to miss things that are important but clearly picks up things that are not. Rustling pages, coughs and sneezes, and even the sound of a pen against paper can sometimes be heard more clearly than, for example, a star witness’s testimony. Just as you need to be certain that you are near a microphone when speaking, you must be aware of the noises you make while near a microphone when you are not the speaker.

9. Use the “mute” button.

Again, the recording device is not always your friend. I am often amazed by the things it fails to pick up, but I am even more surprised by the things that it does. At times, exchanges between an attorney and his or her client that would otherwise be confidential are clearly audible because the attorney failed to hit “mute.” In one proceeding, I was even able to hear an attorney counsel his client as to the reasons my ruling was wrong and his appeal rights while I ruled from the bench. There is a “mute” button at the base of your microphone at counsel table. Use it, and advise your client to use it. If you don’t, you may well be waiving the attorney-client privilege.

10. Conserve video and audio aids presented at trial.

Two tips for effectively conserving video and audio aids on the record: First, if you play a video or audio aid that you do not intend to offer as an exhibit, consider offering it as a court exhibit instead. That way, the aid is received by the court as a part of the record (and thus can be reviewed later by an appellate court), but the jury will not have it during deliberation. Second, never try to talk over an audio or visual aid. There are times when attorneys ask a witness to describe what the jury is seeing or hearing while playing video or audio. Be sure to hit “pause” before speaking or asking a witness to speak. This may take longer, but it will be a great benefit to the record.

Related to this point is the need to make sure the exhibit you offer into the record either contains only that which is received, or that the record is clear as to which portion of the exhibit is being received. What I am talking about here are disks that contain multiple files (only some of which are received into evidence) and disks that contain the full files when only a portion is received into evidence. Make sure the record is clear as to what has and what has not been received.

11. Make an offer of proof.

While I don’t want to get into an exhaustive discussion on this topic, I do want to encourage you to make an offer of proof if you truly think the trial court is wrong. Be polite and mindful of the jury, and ask the court if you can do it later during a scheduled break, but do do it. You might even be surprised; the trial judge could change his or her mind after hearing the offer.

12. Take exceptions to instructions.

You have been in trial for weeks and you have spent hours on the record arguing with opposing counsel about the jury instructions. After reading the instructions, the judge turns to you and asks, “Any exceptions?” You stand and say, “Nothing other than those I mentioned earlier.” Have you preserved anything for appeal? Probably not. ORCP 59 H(1) requires that you take exceptions to the instructions “immediately after the court instructed the jury or at such other time as the trial court directed.” Argument about instructions earlier is not the same thing as an exception to the instruction as given. Don’t confuse this requirement with the provision in ORCP 59 H(2), which allows you to incorporate by reference the points you previously “made with particularity.” That just means you can incorporate those points by reference, not that you don’t have to take an exception.

As a trial judge, I try to make sure people get their day in court. I make sure that trial is fair and is conducted in accordance with the rules and the law. I try to rule promptly on matters and to explain my rulings. My goal in all of this is to have a final resolution of the dispute. By so doing, I hope to make the parties be accepting of the outcome and thereby allow them to move on with their lives. That should be your goal, too, but we must always be mindful of the record and how clear it will be if an appeal follows.

The Honorable David Brewer, Associate Justice, Oregon Supreme Court

My objective today is to discuss in broad terms the condition of, and prospects for, access to civil justice in Oregon’s state courts. Let’s start with a working premise, one that is often touted by the Chief Justice of the United States Supreme Court: 95% of the litigation in this country is waged in the state courts. Although exceptions abound, that raw percentage conceals the fact that, proportionately speaking, most complex civil litigation is processed in the federal courts. To be sure, the state court system, especially in densely populated urban judicial districts like Multnomah County, has its share of mass tort litigation, class action proceedings, cutting edge products liability cases, and the like. But the staple of state court civil litigation is reflected in the pulse of ordinary daily life–domestic relations, traditional personal injury, foreclosure, collection, property, and business disputes.

Now, the procedural setting for these typical state court cases may not be user friendly in other ways, but there are notable differences between the state and federal civil justice systems in Oregon that are relevant to our discussion today. Here are some examples. First, when it comes to the early or premature disposition of civil cases, Oregon has not followed the federal approach of permitting judges to weigh disputed evidence. In the federal system, the trial judge’s role in assessing evidence adduced in a summary judgment proceeding is more “evaluative” than the function of his or her counterpart in Oregon’s courts: in the federal system,”[t]he mere existence of a scintilla of evidence in support of the plaintiff’s position will be insufficient [to defeat a motion for summary judgment]; there must be evidence on which the jury could reasonably find for the plaintiff.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). In Oregon state courts, by contrast, judges are generally less inclined to weigh or evaluate the strength of conflicting evidence in ruling on summary judgment motions; hence the denial rate tends to be higher, practitioners know this, and most observers believe that the summary judgment device is therefore less frequently used these days in state court.

Second, Oregon jurisprudence by and large has not sanctioned so-called speaking pleading motions for dismissal that are more common in Federal court. Although fact pleading, not notice pleading, is prescribed by the Oregon Rules of Civil Procedure, our motions to dismiss for failure to plead facts sufficient to state a claim for relief are not intended to test the sufficiency of the pleaders’ evidence, and experienced practitioners understand this. So we don’t have a litigation culture that tends to use pleading motions to force the early termination of civil cases.

Third, Oregon has always been contrarian in declining to adopt the full panoply of federal discovery tools. Primarily, but not exclusively at the instance of the civil plaintiff’s bar, Oregon has successfully resisted the clarion call of routine discovery of expert witness opinions as well as the use of interrogatories. That battle was fought and lost by the proponents of full federalized discovery when the Oregon rules were adopted in 1979, and, the same result was repeated in later skirmishes, so that there have been no recent serious attempts to revive the effort.

Other things being the same, we might infer from these differences between our procedural systems that access to civil justice is freer and subject to fewer barriers in the Oregon state courts than in the federal district court. But is that really true? I want to say first of all that we would greatly benefit from reliable empirical studies on the subject, but, if we measure access to justice in terms of being able to get to trial, if need be, without dying the death of a thousand electronic paper cuts, the answer may be no.

Let’s illustrate the problem with an authentic anecdote. In 1977, when I graduated from law school, it was common for a new lawyer in Lane County to receive a case file (usually pretty thin) from a senior partner that involved a small civil dispute, with maybe $2,000 or $3,000 at stake, and be told: “Go try it.” And the trial date sometimes would be set for that same week. Whatever discovery had been done would be scant; maybe a few witnesses would have been lined up. The firm might have $500 in fees into the case, and if you lost to the court or a jury because you didn’t have all the information the other side had, or you simply hadn’t prepared as well, maybe you reduced or waived your attorney fees and that was the end of it. There was no 800-pound malpractice gorilla to worry about, you hadn’t engaged in a mountain of defensive legal practice, and a lot of small cases got affordably tried. Not very artfully in many instances, but you learned how to try a case, how to think and act on your feet, how to adjust and shift, how to develop a coherent theme or narrative about your case, and, by and large, you learned to respect the wisdom of juries. In those days, roughly 11-12% of filed civil cases were tried to a judge or a jury. And we all kept book on verdicts; there was even a monthly report published in Lane County that catalogued cases, and verdicts, by type. And it was thick. Every trial lawyer had that information when we developed settlement proposals or sometimes voluntarily dismissed an improvidently filed case.

Today, that culture is so remote and unfamiliar as to seem naive and primitive to many practitioners and observers. That’s because a mere legal generation later, the prospect of going to trial without being armed to the legal teeth seems downright reckless to many. Consistently with that view, today, the trial rate in civil cases has declined to about 1-2% of filed cases, and there is little reason to believe that the hemorrhaging has stopped. These days, a busy civil trial lawyer is lucky (I use that word consciously), to get to trial once or twice a year.

As we think about the state of access to civil justice, should we care about these trends or do we bid good riddance to a less progressive era of justice? After all, trials are expensive and risky. And juries, and sometimes even judges, are perceived to lack the expertise to resolve complex disputes in an increasingly sophisticated and densely rule-bound legal environment. Why should we want a civil justice system that many think is no more than a ritualized game of chance when we can achieve more perfect justice by arbitrating or mediating before experts, having previously uncovered all the facts and law that will ensure an exhaustive exposition of the merits of the case?

Time doesn’t permit a full discussion, but here are a few reasons why, in one judge’s opinion, we should be very concerned about the arc of this trend. Mind you, nothing I’m about to say should be taken to belittle the artful and intelligent use of discovery and motion practice or the many salutary benefits of alternatives to trial. The vast majority of cases should be settled, as quickly and efficiently as possible with the most information that can be practically obtained, and trials, including jury trials, should be just one arrow in the litigation quiver. Instead, what I’m advocating for is a course correction to check a pendulum that has swung too far. And here’s why:

First, many claims for economic recovery–which, of course, is the aim of most civil litigation–involve unliquidated, noneconomic, or, in some cases, punitive damages. An important policy question to ask is who should be setting the yardsticks or benchmarks to measure the value of such claims, including for the purpose of guiding settlements. Should it be a community judgment, based in part on a broad sample of jury verdicts in similar cases, or, rather, should we rely on the opinions of presumed experts who are nether elected nor otherwise accountable to the public? Without an adequate reservoir of civil trials, we increasingly repose such critical judgment calls to a small, elite group of experts, and the public accountability of the civil justice system is commensurately eroded.

Second, is a very practical consideration: without trials, the bar’s trial skills atrophy or are never adequately developed. We risk becoming mere litigators, reluctant to take a prudent risk to go to trial when a precedent or benchmark flowing from a favorable jury verdict might otherwise be in the best interest of our clients, classes or groups that they represent, or advance the understanding of the law by creating precedent. Moreover, we lose valuable trial experience that helps advocates more objectively evaluate the settlement value of their cases.

Third, are the critical elements of public perception, trust, and confidence in the civil justice system. The great majority of citizens have little contact with that system. They get their sense of it from media portrayals and anecdotes. They may have waited in line to deal with a traffic ticket or a small claim, but those views of the system are deceptively narrow. Jury service, on the other hand, is part of the citizen’s compact with his or her government, in that it brings community values to the table of justice. Our constitutional framers preserved the right to jury trial and forbade the reappraisal of jury verdicts by a judge or anyone else if there is evidence to support the jury’s findings of fact. They understood that the covenant between the government and its people is a fragile one; it depends on civic engagement, and it is bilateral. Judges and courts pledge to follow the rule of law without fear or favor, and so does the public through jury service. Where law is applied to facts only by elites, no matter how enlightened, in settings that are removed from the scrutiny of a transparent public justice system, that mutual covenant is weakened, further distancing the people from their government.

Fourth, the opinions of some experts notwithstanding, a number of credible studies show that the wisdom of a collective body of fact finders, guided by understandable rules, is just as reliable, if not more so, than the judgment of an expert adjudicator, especially one whose work is not subject to meaningful judicial review or constraint. James Surowiecki and other social scientists have made the point in a number of publications, and it comports with the experience of many trial judges and trial attorneys. In my years as a trial judge in Lane County in the 1990’s, I tried scores of civil jury cases to verdict. I can assure you that, in all those trials, I can count on the fingers of one hand the number of cases where I thought that the jury got it wrong. And, each one of those cases involved a notable mismatch of legal skills between the parties’ lawyers–in other words, the fault was not the jury’s.

If properly instructed in understandable terms, and treated like active participants in the trial, jurors almost always take to the work vigorously, commit themselves to the rule of law, and they work hard to get it right. When this happens, the experience is rewarding to everyone, and the benefits of civic engagement are real. If you think that a case is too complex for a jury–and I readily acknowledge that some cases are better suited for other forms of dispute resolution–it may be because you haven’t figured out how to reduce that complexity to an understandable, compelling narrative that would be persuasive to any decision maker, let a alone a jury.

An effective trial lawyer–like the story tellers and theme weavers of many cultures throughout human history–is skilled in the art of teaching lessons through the coherent marshalling of facts and rules. This skill is vital to helping communities determine what justice is and to facilitate its evolution in changing circumstances. And jurors are uniquely positioned to play a crucial role in that process.

For all these reasons, and for others that we don’t have time to explore in this limited space, we need a balanced civil justice system. I am an ardent proponent of appropriate dispute resolution, but the trial, and especially the jury trial, should be an affordable, accessible option for litigants that judges embrace as well, not an anachronism or a grudging anomaly. Otherwise, our state trial courts will increasingly and predominantly become forums where pro se domestic relations matters and misdemeanors are tried, and those who can afford to bypass the system do so. Carried to an extreme, such a two-tiered justice system is really an economic caste system, and it is antithetical to the equally accessible public justice system that our framers envisioned.

In her recently published thoughtful book, Rebuilding Civil Justice, former Colorado Supreme Court Justice Rebecca Kourlis laments the triggers, including excessive discovery costs, that have made the trial option unaffordable and subject to terminal delay for most people. We need to change that while we can. The greatest challenge for this and the next generation of lawyers and judges is to construct a civil justice system that people can reliably use and afford. Here are a few ideas that can help:

(1) In 40 years or less, the litigation pendulum has swung from a pattern of trial by ambush, which doesn’t reliably produce justice, to belt and suspenders litigation where discovery and motion practice are often used merely because they are available, not because they are cost-effective ways to level the field of helpful information. In Oregon, we’ve recently tried to shine a light on that tendency and to provide an alternative by creating a set of trial court rules that are intended to encourage a more streamlined approach to civil litigation. Under that model, parties can get a certain, reliable, trial date within four months after the date they opt-in to the program, if they agree to a six person jury and settle on a plan of limited motion and discovery practice. So far, this option has been under-utilized, and it is difficult for many judicial districts to implement in the face of chronic budget cuts and resource shortages. But, there is hope that it will take hold by making smaller stake cases more economically viable to try where litigation to the hilt would discourage the parties from initiating or defending them in the first place.

(2) We must acknowledge that some cases truly are more complex; they require special care and attention. We need a cohort of experienced civil trial judges available to manage and, if necessary, try these docket buster cases anywhere in the state. Oregon’s recently-adopted Complex Litigation Court program, embodied in Uniform Trial Court Rules Chapter 23, is designed to accommodate those cases. Having a judge who knows how to manage pretrial practice, how to keep the cases moving forward evenhandedly and affordably, is a critical consumer service for the state courts to provide in a balanced justice system. We need to continue utilizing and improving this program, which has had some notable early successes, as part of the effort to stem momentum toward a two-tiered system.

(3) Courts need to make a concerted effort to budget and manage their work more effectively. This involves using sound business practices, guided by institutional performance measures and valid workload assessments, in order to intelligently ration scarce resources and to build credibility with our legislative funders and the public. At the same time, we must recognize and explain that the ultimate distinction between a profit-centered enterprise and a functional public justice system is the promise of justice, which can never be measured solely in dollars and cents. And we need to persuasively demonstrate to our stakeholders through credible economic impact models that adequately funding the courts will actually promote economic and social welfare, and that public justice shouldn’t be treated as just another unwelcome cost of government.

(4) Lawyers need to recommit to providing affordable legal services to the middle class, not just to the indigent and the wealthy. That means creating and updating a plan to manage and try every case economically; to consciously and rationally limit motion and discovery practice. To discuss the risks of such decisions with their clients so as to minimize the perceived need for wasteful, defensive litigation measures that too often propel the cost of justice without advancing the cause of justice. We can’t afford perfect justice; sometimes to get any measure of justice, we have to take prudent risks by limiting expenses. This isn’t easy. Sometimes your opponent will try to drive you into the dirt by outspending you or inundating you with process. Judges need to be prepared to intervene when that happens. And, as Justice Kourlis suggests, we should reconsider our procedural rules, as other state already have begun to do, so as to objectively evaluate whether and to what extent those rules have contributed to the problem and require revision.

Trials, especially jury trials, are guaranteed to provide a check on the power of government and judges. They give life to our form of government, which eschews domination by elites of any stripe. The good news is that, instinctively, we know that’s true, and we have a chance to do something about it. I’m optimistic that we can find an Oregon way to recalibrate our civil justice system, to make the pursuit of justice more affordable to people within a time horizon that makes it effective. To accomplish this will require a unique collaborative pact between the bench, the bar, and the academic community that is training the next generation of lawyers to reaffirm the value of our constitutional guarantees. And it will require a serious commitment to constructively and systematically reconsider the way that we have learned to litigate in the past generation.

It’s our time and our chance. Let’s not waste it.

The Honorable John V. Acosta, United States Magistrate Judge, District of Oregon

How do we know what works?

Trial lawyers are always looking for effective ways to persuade jurors, but how do we know our methods are effective? We’ve probably taken trial practice in law school to learn the fundamentals of presenting a case to a jury. Maybe we’ve attended a trial college since then, where experienced and well-regarded colleagues taught us the finer points of trying cases. We’ve also probably sat in CLEs presented by other lawyers instructing us on persuasive trial techniques. And, of course, we’ve tried our own cases, and won (and lost), and tried to learn from those experiences what does and what doesn’t seem to work. But rarely, if ever, do we have the opportunity to learn from the best source: jurors.

This article presents actual jurors’ thoughts and insights on effective and not-so-effective trial techniques and practices. The jurors’ comments were obtained immediately following trials in my courtroom. Their comments produced common themes that have emerged over the course of different trials over the years. Also, where noted, I’ve added my impressions as an observer from the bench and compared those observations to my experiences as a trial lawyer. And, I’ve used my recent experience on jury duty to add some additional (and hopefully useful) insights about the voir dire process.

Finally, I note this is not an article about trial strategy or a scientific study of how jurors decide cases. Instead, this article contains candid comments, and summaries of candid comments, from real jurors in real cases, mostly about the mechanics of presenting information to jurors during trial. I hope these collected comments, observations, and thoughts provide useful information about preparing and presenting cases to jurors.

Through the looking glass.

Quite often, jurors’ knowledge about trials is gleaned from depictions on television, in movies, and in books. When jurors encounter the real trial process it can be a surprising and sobering experience for them. The difference between jurors’ perception of trials and the reality that is trial creates a context within which trial lawyers should consider and plan their trial presentations.

A common theme among jurors is how long and slow trials can be, even when they last only a few days or a week. One juror commented: “I did not understand how slow trials went. We see movies and TV that show us perfectly scripted testimony and questions and answers. It’s just not that clean in reality.” Another juror said: “[T]here were interesting moments, as well as a lot of tedium as evidence was presented.” Using trial time well and finding ways to inject interest into the process can be effective techniques in presenting cases to jurors.

Related to this point, jurors appreciate when the judge and the lawyers work to keep trial smooth, efficient, and on course. Jurors have said they appreciated that trial was kept “on track,” that there was no “drama,” and that things didn’t stray or get out of control. They are grateful when they are not in the jury room often or at length, and when they are not kept waiting. Jurors like and appreciate being informed of what’s happening and why it’s happening. These comments highlight the importance of using trial time well and, as importantly, making sure jurors know you’re respectful of their time.

Another common theme from jurors is that they prefer a trial conducted by lawyers and judges who don’t act like the lawyers and judges on television and in movies. Jurors regularly express their appreciation at being shown respect and politeness, at receiving explanations about the process, and at being told what is about to happen. They also have noted in some cases the “kindness” with which they were treated by all participants. Politeness and good manners are important components to an effective relationship with jurors.

Jurors also take their role seriously, and they often find their task difficult and taxing in ways we lawyers probably never realized. Jurors have commented that the process is “emotionally exhausting.” One juror went farther and said “I lost some sleep thinking about the details.” Some commented how tired they were after working through the evidence to reach a verdict. These comments underscore the importance of keeping trial efficient, focused, and as simple as appropriate to the case.

Participating in a trial also gives jurors a sense of pride in the legal system. One juror said: “Nothing really conveyed just how much this thing called the U.S. legal system matters until I sat on this trial.” Another juror commented: “After it ended I told some friends and work colleagues that I felt proud to be an American – and fortunate to have had this week-long experience!” We can enhance our relationship with jurors by bringing to all phases of the trial process an appropriate level of solemnity, respect, and dignity.

“What is going on?”

Sitting in the back of a county courtroom with 30 or so of my fellow prospective jurors, I could easily discern the lawyers were having great fun with voir dire, but I was not. I’m fairly certain my fellow prospective jurors weren’t having much fun, either. After a while, I realized why: I had no idea what was going on. Notwithstanding twenty-five years as a lawyer and seven years as a judge, I was completely unfamiliar with the process unfolding before me in this particular county’s courthouse. No one, lawyer or judge, told us much of anything about how the process worked, how long the process would take, how likely it was that we’d be selected, how the questions the lawyers were asking were relevant to serving as a juror, or how long we would be required to serve if selected.

Then something else occurred to me: prospective jurors in my courtroom must be thinking these very same things during jury selection. Huh; I never thought about that. (Probably because I was too busy having fun running voir dire.) But, I also realized, this only makes sense, because in post-trial conversations jurors regularly express their appreciation at having had the process explained to them so that they understood what was happening or was about to happen, and why. (Ed. note: After my voir dire experience, I completely reworked my own voir dire script to make my own voir dire script more juror-friendly.)

Jury selection can be the legal equivalent for jurors of an invasive medical procedure. Lawyers (and in federal court, the judge as well) are probing jurors’ minds on a wide range of personal topics and private thoughts. The voir dire process often can be awkward for prospective jurors and make them uncomfortable, especially if they don’t understand why they’re being questioned about seemingly irrelevant or personal matters. These feelings make less likely a juror’s willingness to be forthcoming with information helpful to the lawyers’ decision whether to strike or keep the juror.

Help jurors understand the relevance of the questions to their selection and to the issues they will be asked to decide if they are selected to serve. Make clear your questions are intended to learn only the information you need to make an informed decision about their service in the particular case. Keep voir dire short, clear, and focused. Be mindful that while sitting through the voir dire process, prospective jurors are worrying about jobs or classes they’re missing, child care theyneed to manage, and commitments they migh be unable to keep. And always be aware that most jurors are not near so comfortable in a courtroom as we are, so that you always try to make jurors as comfortable as possible during the voir dire process.

Meandering toward something or other.

Once selected to serve, jurors want to know the parties’ respective stories, so do your best to give them a good rendition of your case. Sometimes lawyers don’t use their openings to provide jurors a theme that will guide them through the evidence during the trial. Whether the case is simple or complex and whether trial will last two days or four weeks, presenting a unifying theme in opening statement is important. A cohesive story at the start helps jurors understand how testimony and exhibits fit into the facts they’ll hear and the questions they must decide.

Jurors have pointed out that simple tools would help them better understand the evidence. For example, they have commented that a time line of important events would have been helpful, especially when numerous events occurred in short period of time. Jurors have said creating their own time line is difficult because they must rely on their notes and the exhibits to construct it. Jurors also have observed that where damages are claimed, having a chart summarizing the categories of damage and their amounts would have helped them understand and follow documents and testimony related to damages.

These comments illustrate how our familiarity with a case, and particularly the case’s facts, can cause us to overlook what jurors need to understand our case. We are accustomed to knowing our case, to living with a case for months or even years. As you prepare your opening statement keep in mind that jurors don’t know what we know about your case, and the chances are good that you’ll more effectively convey your story to those who are hearing it for the first time.

“But I want to make sure they get the point.”

During a conversation with an experienced lawyer I relayed a comment from a juror in a previous trial that captured a sentiment expressed by many jurors: “We’re pretty smart – the lawyers didn’t need to ask the same thing over and over.” Upon hearing this comment, the lawyer immediately responded, “Yeah, but I always want to make sure they get the point.” We can be assured that they do, even without the repetition we were taught must be used to convey our point.

These days, most jurors are intelligent, attentive, and sophisticated. As another juror told me after a different trial, there was too much repetition, too much of the lawyers coming back to points already made. I know I was taught as in trial practice class and as a young lawyer to use repetition as a technique to make my case, but as a judge, I’ve learned that repetition frustrates jurors and, in fact, doesn’t help lawyers make their case. So, if you were taught as I was to use repetition as a technique to make your case, then you might want to reconsider the effectiveness of technique.

We also can make sure jurors get the point by being clear and direct about the point we’re trying to make. Themes that have emerged from juror comments are that the lawyers need to be more concise; that questions should be to the point, clear, and short; that the lawyers talked too much or kept talking; and that lawyers didn’t get to the point. One juror said that “80% of what the lawyers talked about was irrelevant.” We enjoy access to deposition testimony, produced documents, and (in federal court) interrogatory answers and pretrial witness statements, all of which prepares us to ask good, clear questions of witnesses, and thereby make our point to jurors. As we prepare for trial, we should be mindful that in the eyes of many jurors we often can do better at using those tools.

Jurors hold witnesses equally accountable in this area. Jurors comment that witnesses, like lawyers, don’t need to say the same thing over and over. Jurors also have observed that witnesses should answer a “yes or no” question with “yes” or “no.” Witnesses who tend toward excessive narration, non-responsive answers, and arguing with the lawyer undermine their credibility and persuasiveness with jurors. The lesson here is to be attentive to witness preparation and ensure that our witnesses, on both direct and cross-examination, are clear and concise, answer the questions they’re asked, and never try to build a watch when the question is only whether they know the time of day.

“Wait – what was that?”

We often don’t use exhibits well at trial. By the time a case begins trial, we have spent a lot of time with the documents we will use as exhibits at trial. This creates a familiarity with the exhibits that can cause us to forget that the exhibits are completely new to the jurors.

One common oversight is not giving jurors enough time to read the exhibit we are using. We display an exhibit on an evidence machine or projector, ask the witness a question or two about it, then whip it off the screen to be replaced by the next exhibit we intend to use. Often, this surprises even frustrates jurors; they were presented with evidence they weren’t able to read and weren’t able to link to the testimony being given or argument being made.

Consider having exhibit binders for the jurors’ use, even if the binder doesn’t contain all the exhibits but only the truly critical exhibits for your case. In fact, jurors have suggested this approach. Alternatively, allow jurors a reasonable amount of time to understand what the exhibit is and to locate the passages being used to question the witness. However it’s accomplished, the goal is to make sure the exhibit has the impact with the jurors that caused you to mark it in the first place.

We also can do a better job of making exhibits legible for jurors. Jurors have complained of exhibits, especially those with smaller print, being hard to read on the electronic evidence machine, and even when shown on a large projector screen. Jurors also have mentioned that during the trial they were not always able to see the exhibit number, so they couldn’t identify in their notes the document by exhibit number (and, because we often are focused on the exhibit’s contents, we often don’t recite the exhibit number for the record). Most of these occasions occur because the electronic evidence machine is used to enlarge the part of the document being discussed, in the process taking the exhibit number out of the screen’s viewing field.

To make exhibits more readable, consider using call-outs of the key passages in less legible exhibits, as some jurors have recommended. Remember that many exhibits are copies of grainy PDF documents, single-spaced email messages, or contracts or loan documents in small print. A call-out solves the legibility problem, highlights the critical language in a visually effective manner, and conveys to the jurors the message we intend the exhibit to deliver.

Jurors also have complained about the number of exhibits presented to them during trial. They have observed that voluminous exhibits are difficult to go through and work with, especially exhibits such as medical records that aren’t ordered chronologically. Consider, as some jurors have mentioned, providing jurors with an exhibit list to help them track exhibits referred to during trial. This will help the jurors follow your evidence and assist their note-taking, particularly when exhibits are linked to key testimony. They’ve also suggested use of a timeline, which would allow them to put exhibits into a sequential fact context and thus make more clear the order in which important events occurred. Remember that the power of an exhibit is only as strong as the jurors’ ability to see its importance to your case, so look for effective ways to help jurors understand the importance of the exhibit to your case.

Finally, jurors can be overwhelmed with the number of exhibits and the amount of information contained in exhibits. Consider ways to separate the truly important documents from those which are informative and perhaps even helpful, but ultimately redundant, duplicative, or less important to your theory of the case. One method is to identify the ten documents most important to your case, then work outward from there to determine what additional documents you need to prove your claims or defenses, or support your theory of the case. Compare those additional documents to the “Top Ten” you’ve identified and ask whether each additional document adds something necessary to your case that the Top Ten don’t contain. Jurors will appreciate your effort to minimize the number of exhibits, and your case is likely to be more clear and more forceful to the jurors.

“Are we there yet?”

Even short trials can be long trips for jurors. When prepare your closing argument, remember that your jurors sat through the entire trial and were attentive to all the evidence, and that they are ready to decide the case.

In recognition of this reality, consider incorporating one or more of the following practices into your closing argument. First and foremost, keep it short. Focus on the key points of your case and the two or three things about the other side’s case you really must discredit or rebut. Share your insights about the evidence by showing the jurors how it all connects to support your opening theme. On this point, familiarity with your case is your ally. Your months or years on the case translates to insights about and interpretations of the evidence that trial’s time constraints preclude jurors from forming themselves. Punctuate your presentation with the truly critical exhibits and with slides that visually reinforce your key points. Above all, avoid giving closing arguments that merely summarize each witness’s testimony and each exhibit’s contents. And remember – keep it short. (Yes, I just used repetition to make my point, but I used it judiciously.)

Parting thoughts.

Next time you prepare for trial, keep in mind how a juror might think if faced with your voir dire questions, while listening to your opening statement and closing argument, when hearing your witness examination, and upon encountering your exhibits. If you do, you’re likely to make your case more juror-friendly and stronger throughout all aspects of the trial process.

The Honorable Mustafa Kasubhai, Circuit Judge, Lane County Circuit Court

In Lane County where I serve we assign trials to judges on a master calendar system. Very few cases are pre-assigned. On the day I am available and up for trial call I eagerly await my verdict…er, um, my trial assignment and the first question I always ask, “is it a full se, half se or pro se?” A brief explanation. Full se means both parties have legal counsel. Pro se, well that speaks for itself. Half se means one party has legal counsel (in this brief article that means you, the reader) and your opponent is representing himself or herself. I want to know what kind of case I am getting, because each type of case calls on a different skill set, and perhaps a need to draw on an extra reserve of energy, patience and focus.

In a full se case where legal counsel are both prepared and competent, I get to preside as a trial judge in the most classic sense of that role. Pre-trial motions are resolved and any remaining issues are briefed and argued succinctly. Voir dire is conducted with a keen respect to the public’s time and the questions really do seem to elicit information that help all of us determine if a potential juror can be fair and impartial. Exhibits are all pre-marked. And when, in the rare instance, there is an evidentiary objection, the attorneys accompany the objection with very brief authority. Oh, and both parties rest their cases in chief well ahead of the promised time. Will someone forward this to the Make a Wish Foundation?

In pro se cases most parties have never been in front of a judge or jury and have very little idea of how the process starts or finishes. I try to conduct the trial in a manner that ensures access to the process to both parties without providing support or legal guidance to either. While there are many differing perspectives and practices as to how involved judges should become in the development of the record, at least when it comes to pro se bench trials, I have decided there must be a minimum amount of evidence I need to satisfy my conscience and conclude whether the parties have carried their burdens.

Ah, but half se cases are more challenging to manage than any pro se case I have had in recent years. Attorneys have a right to present their case without “excessive” judicial involvement. It is unfair, and inappropriate, for a judge to take the pro se “under the wing” and assist him or her. Yet, how can the judge nevertheless ensure a fair degree of access to the legal process? Navigating these waters become even more treacherous in a jury trial. To extend this metaphor, a full se case is like the open sea. On most days it is calm and orderly, predictable. Everyone can get from one harbor to the other without much fanfare. The pro se case is the rocky shore. The hike and rock scrambling can be a workout, and I might never know what I will find in the tide pools, but at least it won’t be a 20-foot shark looking to bite my leg off. At the end of a pro se case, I could be exhausted, but if done well, there is satisfaction in knowing the parties’ dispute is resolved. Then there is the half se. The half se is the intertidal zone. That place where the seawaters break and waves crash through underwater geology. This is the place where, if all of us are not careful, the tide and current will drag us under.

In the interests of the overall ideal of justice, winning well and winning for the long term, I urge trial attorneys faced with a half se case to proceed with care. Below are several tips you might use to help your case, help your trial judge and perfect your record when you litigate against a self-represented party. Most of the tips below can be reduced to this idea: There is a vast difference between what an attorney can do and what and attorney should do. Appreciate the difference and elect the latter.

1. Get the judge involved as soon as discovery becomes difficult. It is quite common for self-represented parties to miss or ignore deadlines. Responding to a lengthy discovery request is likely overwhelming. Mistrust of you, your client and the legal process generally cause self-represented parties to avoid the process. I have also seen self-represented parties mirror the attorney’s requests and serve very lengthy, redundant and overly broad requests. Now both parties are stuck battling each other over what has to be produced. File a motion to compel and also ask for a pre-trial conference if your local rules allow. This should get you in front of a live judge who can set out the ground rules for both parties going forward. If you anticipate needing depositions, then come to the hearing ready to ask the judge for assistance in securing the self-represented party’s cooperation. Prepare a scheduling order for the judge’s signature. Now you have a road map that binds the parties and with which the judge can hold the self-represented party accountable. If a party refuses to answer questions in deposition, call the court and ask for a judge’s guidance and order. Make sure the reporter records the court’s instructions in the event you need to ask for sanctions in front of another judge.

2. Always be willing to explore settlement. It is never weakness to be the first to initiate settlement discussions. Self-represented parties might think so, though, and they may have no one to counsel them otherwise. So you should raise it early in the case and often. Do it often so the self-represented party does not consider your settlement interest as tied to a perceived weakness or defeat in either case. For example, if you raise settlement for the first time after the judge denies your summary judgment motion, a self-represented party may no longer be interested in settlement or your values may now be so divergent, settlement is impossible. There are many judges on most courts who will facilitate a prescheduled settlement conference. In Lane County, attorneys are familiar with the judges who regularly schedule settlement conferences and can call their chambers to get the parties in front of the judge before trial. Caveat, many judges, including this writer, are reluctant to preside over half se settlement conferences because of the difficulty of avoiding becoming counsel for the self-represented party. On the day of trial, ask the trial judge if she can get another judge to help settle the case. Other key times to bring up settlement are right before a jury panel is brought in (there is something daunting about actually having to conduct voir dire), at the first recess after opening statements (reflecting for the first time on one’s own voice describing the dispute and realizing it sounded better inside one’s skull might put settlement back on the table), or after the first party has finished his or her case in chief.

3. Always put a settlement on the record. It is easy to put the settlement on the record when both parties are already in the courthouse. So there is no excuse for not doing it. In one recent incident, an attorney and the self-represented party reached a settlement after I stepped out of the courtroom. The self-represented party notified my staff that the parties reached an agreement, but the attorney had left before I could insist on putting the settlement on the record. A week later I learned that the self-represented party backed out of the deal. If the parties reach a settlement away from the courthouse, contact a judge immediately and find out if there is a time that day to put the settlement on the record. If you cannot secure the assigned trial judge, call the presiding judge’s chambers for assistance. Judges will help make it happen.

4. Avoid boilerplate language just about everywhere. Forms are a blessing. They contain the universal and collective wisdom of all the lawyers who had to deal with all the possible ways things could go wrong long before your parents were even twinkles in their parents’ eyes. But in the case you are dealing with right now, do you need all of it? Not likely. The self-represented litigant may take one look at the discovery request with all its subparts and decide it would be impossible to comply. If you want discovery, form a request that accounts for the opposing party’s ability to succeed in getting you what you want. Simpler discovery requests are easier for a judge to enforce. Consider also the settlement agreement and release. Strike a balance between covering all the bases that really need to be covered and evoking paranoia. I have had several settlements almost go sideways when the self-represented party decides he is giving up too much when he waives his right to make any claim against your client’s descendants… seven generations removed (this last part was a slight exaggeration).

5. Help the judge ensure a just playing field. The judge and a jury will be observing and evaluating your behavior more than you might think. This tip (along with #6 and #7 below) most clearly reflects back on the theme of knowing the difference between what you can do and what you should do, and electing the latter. After jury trials I go back to the jury room to talk with the jurors about the trial. Jurors regularly comment on the attorney’s conduct in trial. Both good and bad. It is painfully clear to judge and jury when an attorney is, well, being a jerk. I cannot think of a case where it ever really helps your client when you, the trial attorney, act badly even when the self-represented party might be a jerk, too. I have noticed that where a party may prevail on liability, for example, damages seem to be directly correlated to the parties’ and attorney’s behavior–the lower you go, so goes damages. Courtroom decorum does foster justice and fairness. For example, if the following does not materially undermine the merits of your case or defenses, then cooperate with calling witnesses out of order, do not object to telephonic testimony, share demonstrative exhibits and charts, and if the self-represented party cannot seem to find a document and is slowing down testimony, then share your copy. In most cases there is no need and absolutely no value to your client in humiliating the unrepresented party. This is especially true if your client and the opposing party have a business, community or familial relationship that needs to be preserved. Please, please, please resist the temptation to flex your litigation ego. Even if your client wants you to go after the other side, the judge will remember what happened, or what you failed to do, as your unprofessional choice, not your client’s.

6. Object only when you really need to. This is a subpart to #5 above, but deserves special consideration. In sum, self-restraint is a virtue when it comes to evidentiary objections. This is true with all cases, but intemperance with objections in half se cases borders on wicked. What comes to my mind is the attorney who seems to enjoy disrupting and frustrating the unrepresented party with technically appropriate objections, and then without a hint of shame commits the same evidentiary “violations” knowing the unrepresented party may have no idea how to respond. Judges comment on this all the time with each other. That behavior is rarely forgotten. Of course you must make a record, but most objections never need to see daylight. Unrepresented parties will ask witnesses irrelevant and inappropriate questions. Resist objecting to the ones that might start obstructing the flow and rhythm of the trial and do not otherwise hurt your case. Factfinders will become distracted and can lose sight of what you might ultimately be trying to prove. The focus instead becomes the courtroom drama. That drama is invariably a miserable proxy for deciding the case on the merits. So try this imaginary exercise next time you find yourself itching to object. Every objectionable question the unrepresented party makes is a putrid-green, maggot-eyed zombie. Some are coming your way slow, some fast. Some are just walking around in circles eating their fingers. You are our doomed and lonely hero who needs to make it to the end of this B film, and you only have two half-full magazines of ammo (effective objections) left. Make’em count.

7. Prepare jury instructions that include uniform instructions the opposing party should have known to include, but did not. Help the judge make a record that will not be reversed on appeal because of errors that could easily have been avoided at trial. Jury instructions are traps waiting for appeal. The Court of Appeals can reverse a case for an error that no one preserved at the trial court. Because the error was apparent on its face the appellate courts may nevertheless address it on appeal. While ultimately it is the judge’s responsibility to instruct the jury, do your part to propose all the relevant uniform instructions that you and the opposing party would use if the opposing party knew better. I am not expecting attorneys to propose special instructions and “advocate” for the opposing party. I may catch all the uniform instructions the unrepresented party would need to present his or her theory of the case to jury, but I also might miss some. Why would you want to risk having to try the case all over again, if you could have aided the judge the first time with a complete and accurate set of instructions? Yes, many unrepresented parties will not appeal, but some do, and some find counsel on appeal. An attorney I respect well, I respect even more after he proposed a full set of jury instructions in a half se trial before me. It confirmed for me he was not looking at the short term jury trial win, but also kept his eyes on the long term finality that comes with a solid record on appeal.

Please accept this normative missive as a judge’s perhaps naïve appeal to our better angels. It is an appeal that does not require the trial attorney to compromise the strength of their advocacy. Rather, these suggestions temper that strength with an honor and professionalism that must be extended, not only to others with the license to practice, but unrepresented parties as well. And like a strong steel when tempered well, your advocacy in the courtroom will retain its keen, effective edge long after other brittle metals have failed from misuse.

Judge Thomas Hart, Circuit Judge, Marion County Circuit Court
(With the assistance of Kate Hall, Judicial law Clerk)

“If you can talk with crowds and keep your virtue,
Or walk with Kings – nor lose the common touch…”

This excerpt from Rudyard Kipling’s 1895 poem “If” provides a good illustration of the breadth of perspectives attorneys navigate when conducting voir dire. It is important to navigate well: lawyers who respect the variety of life experience that comes with each panel win more cases.

A seasoned trial attorney has only a small percentage of the life experience of those sitting in the box, and common sense is not checked at the door. I averaged individual juror age and total years for my last twenty 12-person jury trials: The average juror was 47.45 years old, and the average number of years sitting in each box was 571.65. The jury panel brings all of that experience to the trial. Voir dire is a chance to take advantage of all that life experience.

Voir dire is not a personality contest, job interview, or the time to try your case. Trial lawyers are overly ready to do battle on the first morning of trial; this is not conducive to effective jury selection. The most effective voir dire tactic is to engage in honest conversation with the panel.

Trial preparation includes voir dire. Questions should address actual or potential strengths and weaknesses in your case. It is your burden to make sure you know what aspects of your case might not sit right with an average juror. For example, in a low impact car accident that resulted in significant injury to your client, prepare to address your claims relating to these injuries from a seemingly minor collision. This is an invaluable opportunity to soften the hard points in your case. Addressing the “warts” in your case gives you credibility and increases your persuasive power.

To facilitate an effective, grounded conversation, an attorney should come across as interested, but not condescending; instructive, but not patronizing; and most of all, completely inoffensive. It is a difficult balance to strike, but good listening skills go a long way.

Creating a conversation in voir dire helps your case in several ways. In a conversation, jurors are more comfortable and answer questions honestly with less pressure to be “socially acceptable.” Skillfully phrased questions directed to the right juror can test the sensibilities of other jurors and educate the panel on the merits of your position. A conversational style can help to lessen any perceived power disparity between attorney and juror. This allows a juror to educate you on his or her position rather than just respond to questions.

Better yet, conversation can also help you explore the “why” behind people’s positions. People tend to personally identify with their positions, but can be more susceptible to a gentle testing of their biases if they don’t feel as though they are being grilled. When a juror speaks honestly about the reasoning behind their position, you can better identify how he or she will analyze your case.

Promoting a feeling of friendly conversation is effective in allowing jurors to open up so that you can get to know them. Pay attention to their responses, and don’t mistakenly offend. Whether the jurors actively like you is not that important. However, it is very important that they don’t dislike you. If you can master the art of conversation with jurors during voir dire, you will be a more successful trial lawyer.