Originally featured in the December 2007 issue of NITA Notes, NITA faculty member, The Honorable Robert L. McGahey, Jr., district judge of the Second Judicial District in Denver, writes about his best practices in bench trials.
Best Practices: How to Lose a Bench Trial
Trial lawyers (and the people who teach them) tend to focus on improving jury trial skills. There is a good reason for this: jury trials are more interesting, jury trials are more fun, jury trials (at least in the conventional wisdom) require a more sophisticated set of skills to win. Important to remember, however, is that many more proceedings are bench trials, or things that look, walk, and quack like bench trials, such as domestic relations proceedings, administrative hearings, hearings on motions, etc. It is also important to remember that many young lawyers now cut their advocacy teeth on this kind of non jury proceeding. For these reasons, I think there is some value discussing bench trials or their equivalents. As a judge, I am frequently shocked by the difference between the way even very good lawyers approach bench trials and the way they approach jury trials. From painful experience, I would offer the following suggestions on how to make sure you lose a bench trial.
DON’T BE ORGANIZED
Come to court without reviewing the applicable case and statute law. Don’t mark your exhibits ahead of time. Be sure not to find out whether you and your opponent are offering exactly the same exhibits. Never check to see whether you and your opponent can stipulate to the admission of some or all of the exhibits. Have your witnesses meet you in the hall right before going into the courtroom and give them no real preparation. Don’t think out and plan cross-examination. Don’t have an obvious theme and theory to catch the judge’s interest.
DON’T BE FLEXIBLE
Be surprised that sometimes judges schedule bench trials around other proceedings, and that you may be interrupted. Ignore the fact that in some jurisdictions judges are allowed to ask questions—and the questions a judge asks may not be what you are prepared to deal with at that moment. Insist— vehemently—on an absolutely strict compliance with the Rules of Evidence even though in many jurisdictions judges are presumed to ignore irrelevant evidence in making their findings of fact and conclusions of law. Be so locked into what you want to do that you ignore hints from the judge on what she’d like to hear.
DON’T BE EFFICIENT
Before trial, make motions in limine to exclude evidence—even though the judge has to look at the evidence in order to rule. Do so much useless discovery before trial that you run up a huge bill. Don’t schedule your witnesses in an orderly fashion, so there is a huge time gap between the end of Witness A’s testimony and the start of Witness B’s testimony. Don’t have an exhibit notebook for the judge, and don’t have one for the witness either. In the alternative, don’t review your exhibits at all; just give the judge every document, photograph, and sticky note, and make him figure out what’s important. Make sure you have to root through the five or six boxes you brought with you to find a specific piece of paper. Ask plenty of unnecessary background questions about a witness’ family, education, and work history. Make sure that the one nugget of fact you need to accredit a witness’ testimony is buried under heaps of meaningless verbiage. Oversell your expert. Make sure that you ask the judge for half an hour to prepare the five-minute closing argument he’s promised to give you at the conclusion of the evidence.
DON’T BE THOROUGH
Don’t do the necessary discovery to properly prepare your case. Forget to lay the necessary foundation to admit exhibits. Don’t make an appropriate offer of proof when a judge disallows the admission of an exhibit or the giving of testimony. Don’t present the essential evidence necessary to give your client the relief requested—and more importantly, make sure the judge has to ask those essential questions herself. Skim over or ignore difficult evidence when you are cross-examining—or better yet, don’t cross examine at all. Undersell your expert. When permitted to give a brief opening statement and/or closing argument, make sure that what you say sounds like stream of consciousness poetry or a recitation from Finnegans’ Wake.
DON’T BE MEASURED
Act as if this case is the most important case this judge will hear during the entirety of her legal career. Make sure to ignore the judge’s pretrial order and the rules relating to pretrial procedure as often as you can. Shout whenever possible. Make loud, fervent, and frequent objections. Show obvious displeasure at rulings on evidence. Heave big sighs, snort derisively, waggle your eyebrows, or throw up your hands during testimony you don’t like. Act exasperated and impatient with your own witnesses. Cross-examine like you were auditioning for Law and Order. Ask lots of rhetorical, conclusory, and argumentative questions. Insult your opponent, your opponent’s case, and your opponent’s parentage. Oh, and be sure to treat the judge like an idiot.
DON’T BE INVOLVED
Act as if your case doesn’t matter to you, let alone to anyone else. Don’t look at the witnesses while you’re examining them. Read your questions in a nice dull monotone. When the judge invites you to make brief argument, don’t do it. Don’t give an opening statement, even if you can. Don’t give a closing argument, even if you can. Don’t submit proposed findings and conclusions if the judge asks you to do so. Make sure the judge understands that you have no concern at all about what the results of this case are.
Obviously, my tongue was inserted firmly in my cheek when I prepared this list. Certainly there are differences between a bench trial and a jury trial that require us to adapt our method of presentation. But those adaptations do not require us to ignore basic principles of successful trial work: develop a theme and theory that ties your case together; be knowledgeable about the law; understand the elements of the relief which you are requesting or the defenses you are asserting; make opening statements and closing arguments interesting and understandable, without tub thumping; present your case efficiently, and so on. For many of us, our experience in bench trials was our first taste of what it’s like to be on our own in a courtroom. It’s like that first bicycle ride with training wheels. It’s fun, but relatively low risk—at least for the lawyers. For the clients, however, that bench trial may be the only chance they have to tell their story and prove their point. You owe it to your clients to give them the best trial you can and to give them the best shot at a successful outcome by remembering how to win a bench trial.
I’ll see you in court.
DON’T BE ORGANIZED
Come to court without reviewing the applicable case and statute law. Don’t mark your exhibits ahead of time. Be sure not to find out whether you and your opponent are offering exactly the same exhibits. Never check to see whether you and your opponent can stipulate to the admission of some or all of the exhibits. Have your witnesses meet you in the hall right before going into the courtroom and give them no real preparation. Don’t think out and plan cross-examination. Don’t have an obvious theme and theory to catch the judge’s interest.
DON’T BE FLEXIBLE
Be surprised that sometimes judges schedule bench trials around other proceedings, and that you may be interrupted. Ignore the fact that in some jurisdictions judges are allowed to ask questions—and the questions a judge asks may not be what you are prepared to deal with at that moment. Insist— vehemently—on an absolutely strict compliance with the Rules of Evidence even though in many jurisdictions judges are presumed to ignore irrelevant evidence in making their findings of fact and conclusions of law. Be so locked into what you want to do that you ignore hints from the judge on what she’d like to hear.
DON’T BE EFFICIENT
Before trial, make motions in limine to exclude evidence—even though the judge has to look at the evidence in order to rule. Do so much useless discovery before trial that you run up a huge bill. Don’t schedule your witnesses in an orderly fashion, so there is a huge time gap between the end of Witness A’s testimony and the start of Witness B’s testimony. Don’t have an exhibit notebook for the judge, and don’t have one for the witness either. In the alternative, don’t review your exhibits at all; just give the judge every document, photograph, and sticky note, and make him figure out what’s important. Make sure you have to root through the five or six boxes you brought with you to find a specific piece of paper. Ask plenty of unnecessary background questions about a witness’ family, education, and work history. Make sure that the one nugget of fact you need to accredit a witness’ testimony is buried under heaps of meaningless verbiage. Oversell your expert. Make sure that you ask the judge for half an hour to prepare the five-minute closing argument he’s promised to give you at the conclusion of the evidence.
DON’T BE THOROUGH
Don’t do the necessary discovery to properly prepare your case. Forget to lay the necessary foundation to admit exhibits. Don’t make an appropriate offer of proof when a judge disallows the admission of an exhibit or the giving of testimony. Don’t present the essential evidence necessary to give your client the relief requested—and more importantly, make sure the judge has to ask those essential questions herself. Skim over or ignore difficult evidence when you are cross-examining—or better yet, don’t cross examine at all. Undersell your expert. When permitted to give a brief opening statement and/or closing argument, make sure that what you say sounds like stream of consciousness poetry or a recitation from Finnegans’ Wake.
DON’T BE MEASURED
Act as if this case is the most important case this judge will hear during the entirety of her legal career. Make sure to ignore the judge’s pretrial order and the rules relating to pretrial procedure as often as you can. Shout whenever possible. Make loud, fervent, and frequent objections. Show obvious displeasure at rulings on evidence. Heave big sighs, snort derisively, waggle your eyebrows, or throw up your hands during testimony you don’t like. Act exasperated and impatient with your own witnesses. Cross-examine like you were auditioning for Law and Order. Ask lots of rhetorical, conclusory, and argumentative questions. Insult your opponent, your opponent’s case, and your opponent’s parentage. Oh, and be sure to treat the judge like an idiot.
DON’T BE INVOLVED
Act as if your case doesn’t matter to you, let alone to anyone else. Don’t look at the witnesses while you’re examining them. Read your questions in a nice dull monotone. When the judge invites you to make brief argument, don’t do it. Don’t give an opening statement, even if you can. Don’t give a closing argument, even if you can. Don’t submit proposed findings and conclusions if the judge asks you to do so. Make sure the judge understands that you have no concern at all about what the results of this case are.
Obviously, my tongue was inserted firmly in my cheek when I prepared this list. Certainly there are differences between a bench trial and a jury trial that require us to adapt our method of presentation. But those adaptations do not require us to ignore basic principles of successful trial work: develop a theme and theory that ties your case together; be knowledgeable about the law; understand the elements of the relief which you are requesting or the defenses you are asserting; make opening statements and closing arguments interesting and understandable, without tub thumping; present your case efficiently, and so on. For many of us, our experience in bench trials was our first taste of what it’s like to be on our own in a courtroom. It’s like that first bicycle ride with training wheels. It’s fun, but relatively low risk—at least for the lawyers. For the clients, however, that bench trial may be the only chance they have to tell their story and prove their point. You owe it to your clients to give them the best trial you can and to give them the best shot at a successful outcome by remembering how to win a bench trial.
I’ll see you in court.
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