Be Prepared to Cite the Specific Rule
This procedural fight might have been unnecessary if counsel had cited Rule 48 when asking to poll the jury. “Counsel should know every rule of trial procedure,” advises Judge Barbara M. G. Lynn, Dallas, TX, a senior U.S. District Judge and cochair of the ABA Litigation Section’s 50th Anniversary Task Force. “If you are asking a judge to do something provided in the rules, always know and cite the supporting rule,” she urges. Counsel can use an internet search or a pocket copy of the procedural rules to quickly cite specific rules to the court, adds Judge Lynn.
The district judge in Sargent who denied the jury poll “is among the most experienced trial judges in the United States [and] a hero in the federal judiciary,” Judge Lynn notes. He wisely recused himself from deciding the motion for new trial because he would not want to “grade his own paper,” she explains.
But even the most experienced judges will welcome help from counsel. “Judges are human,” remarks Michael S. LeBoff, Newport Beach, CA, cochair of the Section’s Young Lawyers Leadership Program. “Both seasoned and younger lawyers should be sure to educate the judge respectfully when the need arises. Attorneys must know the procedural rules well so they can cite them,” recommends LeBoff.
Section leaders urge practicality when deciding whether to support or resist a procedural request from opposing counsel. “The big picture and that it is a larger loss to need to appeal and re-try a case,” cautions LeBoff. “And trial counsel generally does not want to give an opponent a black-and-white issue on appeal,” points out Clifford F. Kinney Jr., Charleston, WV, cochair of the Section’s Products Liability Litigation Committee.
One useful practice is to prepare in advance a bank of short “bench briefs” that can be readily tweaked and presented during trial to address procedural rules and legal theories when they arise, suggests Kinney. Bench briefs can be prepared before trial, be just a few pages in length, and yet provide citations to controlling legal authority for the court to consider before it rules. “Law firms should also consider mechanisms to update attorneys on procedural changes as they occur, such as hosting in-house continuing legal education events,” adds Kinney.