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Litigation Journal

Fall 2023: Game On

Away Games

David Oscar Markus


  • Review the local rules, especially about speaking to the press, researching jurors, and interviewing jurors after the trial.
  • Choose the right local counsel.
  • Speak to local public defenders. 
  • Get to know your judge.
Away Games
Alan Schein via Getty Images

Jump to:

I can’t wait to get on the road again
On the road again
Goin’ places that I’ve never been
Seein’ things that I may never see again
And I can’t wait to get on the road again

—Willie Nelson

ALL RISE!” It was November 18, 2005, and I found myself in Savannah, Georgia, for a status conference in a 10-defendant case. It was exactly three months until February 18, 2006, an important date in my life because my second daughter was scheduled to be born on that day.

We were there to pick a trial date for a case that was expected to last six to eight weeks. I was a young lawyer from Miami and had been out of the federal public defender’s office for only three years. This was the biggest case of my career at the time, and I was pretty flexible as to what the trial date would be.The parties had filed a pleading saying that everyone was available in April–May for the trial. Not only were there 10 defendants, but there were 285 counts; it was a massive case. So an April trial date was going to require a ton of work to get ready, but we heard that the judge had a rocket docket and folks did not feel comfortable asking for a trial date farther out. April wasn’t ideal for me because I’d have a young baby at home, but as we say, this is the life we chose.

The judge, who looked about 90 years old, started the hearing by saying, “I see that the parties have asked for April. That’s nice. We will be starting trial February 18, 2006. Any objection?”No one said a word. I stumbled to the podium. My head was pounding. February 18! No, it couldn’t be February 18.

Me: “Judge, I’m sorry, but my wife is scheduled to have our daughter on February 18. Is there any other day that we could start?” Judge: “Good morning, son. A baby, huh? Congratulations. If your wife actually has the baby that day, you can fly home, give your wife and daughter a kiss, and then fly back on Tuesday. Someone can stand in for you while you are gone.”Me: “Judge, it’s not ‘if.’ My wife is scheduled to be induced on February 18. Would it be possible to start on February 25?”Judge: “We will see you all on February 18.”

That was my first trial out of town. Since then, I have tried cases all over the country, including in five different districts in the last 18 months. Trying cases out of town can be challenging. But it is also exhilarating. Here are seven tips for your next out-of-town trial:

Pick the right hotel. You may think this one is not a big deal, but the first thing I do when I have a case out of town is find the right hotel. You are going to be spending a lot of time at this place, so it’s important that it’s the right fit. For me, the best hotel is usually the one closest to the courthouse. I like being able to walk back and forth to court. It saves a lot of time and hassle. (I sometimes take this to extremes, as in a recent trial in the Southern District of New York. The closest hotel was in the heart of Chinatown. The upside—the dumplings were delicious.) My partner likes having a small kitchen in her room so she can make breakfast and other meals. Some of you may prefer a gym or a good restaurant. You should also make sure that it has a suitable space for a war room so that you can work in the same place. Lots of friends will offer you their office space, but that never really works out as well as you would think. Typically on our first trip, we will scout out the hotels and make sure we have a good home base for trial.

Review the local rules, especially about speaking to the press, researching jurors, and interviewing jurors after the trial. It is amazing how different each court’s local rules and customs are. How strict are the rules about speaking to the press? Are you permitted to interview the jurors after the verdict? What about doing social media research on the jurors during voir dire? This latest question has come up a lot recently, and judges are split on it. While we were picking a jury in Denver, we were allowed to research the jurors’ social media presence, and we saw a juror post: “Ugh, I made the first cut during jury duty today.” When we informed the judge that the juror was posting on social media despite the court’s instructions not to, the judge told the jurors to make sure they followed his social media instructions. Later that day, the juror posted: “I think the judge scolded the jury today because of my post here yesterday.” Yikes. The juror was promptly excused, but the judge forced him to stick around and watch opening statements.

Choose the right local counsel. Oh, you have a buddy from law school who practices in this foreign jurisdiction and will do a favor for you and be your local counsel? Turns out that friend has never appeared before this judge and has an office 45 minutes away from the courthouse. Wrong choice. Don’t jump at the first person who offers to help out. You need the right local lawyer. Find a former law clerk of the judge. Or a respected member of the bar who has tried cases in front of the judge before. And be clear about the role your local counsel is going to play in the case. If it’s just a sign-and-file job, make sure counsel knows that up front so that there are no hurt feelings.

Speak to local public defenders. I say public defenders here because in my experience, they are much more willing to speak with you than assistant U.S. attorneys. And they are always extremely helpful. They will give you the scoop on how jury selection is done (like whether the judge allows back striking), what the trial day is like, the best places to grab a bite for lunch, whom to call in the clerk’s office to get the subpoenas issued, whether you will be permitted to use exhibits in your opening, and so on. Although there are lots of advantages to trying a case out of town, one disadvantage is a lack of local knowledge. Make up for it.

Make time for a break. Even if it’s just a walk after court or during lunch, you need to make a little time for yourself. Trying a case out of town allows you to focus. You won’t have the distractions of kids, chores, or office. So you will have some extra time that you would not have if you were at home. Make sure you maximize that time. You could work on that cross forever, but the 30-minute walk will help you more than the additional 30 minutes in the war room.

Test the tech. We’ve all seen the opening PowerPoint that does not work. Or the exhibits that don’t flash up on the screen when they are supposed to. It’s torture. Most courtroom deputies are great people. We always ask for some time before the trial starts to test our slides and exhibits. Invariably, we find issues that we need to work through. It’s worth going in the week before and doing a run-through.

Get to know your judge. Sixty percent of National Basketball Association games are won by the home team. One reason, statistics show, is that refs give the benefit of the doubt to the home team when making a call. We’ve all seen home cooking in the law as well. One of the best ways to neutralize this is to get to know your judge. This is proving more difficult because many judges are now doing the pretrial hearings via Zoom, especially when there are out-of-town lawyers. Fight the urge to do it this way. For important hearings, ask to be present in person. That’s the only way you’ll get a feel for the judge, the courtroom, and your surroundings.

When I got home from Savannah and told my wife, Mona, what the judge had done, she was great and understanding. We moved up the inducement to February 15, and Kate was born happy and healthy. I flew up to Savannah on February 17 and was there for six weeks. The judge conducted trial on most Saturdays, so I got home only once to see Kate during those six weeks. When the jury went out to deliberate, I called Mona and said I’d be home soon. On the seventh day of deliberations, Mona called me and said, “This is crazy—Kate and I are flying up to see you.” That was more effective than an Allen charge. Within two minutes of her taking off, the jury sent a note: We have a verdict. I tried calling to tell her not to get on the plane, as I’d be home soon. But it was too late. They had already taken off.Thankfully, we got to celebrate when they arrived—285 counts of not guilty and baby Kate, now six weeks old. I got to leave Georgia with my new baby and a free client.