Two experienced trial judges – Haywood S. Gilliam Jr., of the U.S. District Court for Northern California and Ioana Petrou of the Superior Court of California – know what a smooth-running trial looks like and share their thoughts on pretrial and trial strategies in the ABA webinar, “Sweet Dreams: Management Tips to Avoid Nightmare Trials.”
The first tip is to remember what’s most important to judges during the pretrial process, which is to “plan ahead and narrow the issues when possible,” Gilliam said. “One of the comments I remember well from my days in private practice is that clients hate surprises, and you will not be surprised to know that judges in many ways are the same.” To the extent that you can, frontload complicated issues to give the judge time to think about them and make a reasoned analysis and decision.
Judges rely on parties to meet and confer early, to do the hard work and grapple with the case to find the true disputes and crucial issues. “We all know the difference between a perfunctory conference and a substantial conference,” Petrou said. “While it’s more difficult these days to actually have a conversation while hearing a person’s voice, it’s still incredibly important and incredibly effective when you can meet with someone. I’m surprised by the number of times that people come in to court and they’ve never seen each other, even if they’re geographically close to each other.”
Doing your homework and presenting a clear and concise case improves your credibility with judges. “Judges talk, and your reputation often precedes you,” Gilliam said. Credibility is the most important asset to you and your clients, and once it’s damaged, it can be difficult to repair. Gilliam said jurors are also looking for who they can trust to help them make this very difficult decision in front of them.
“Credibility and professionalism go hand in hand,” Petrou said. Know and follow the ABA Model Rules of Professional Conduct or the equivalent guidelines for civility in your jurisdiction. These guidelines are essential to the administration of justice for your clients and throughout your career, especially the critical guidelines on civility and courtesy. “They’re not earth-shattering in terms of conduct, … but these are the types of principles that the court is relying on counsel to keep in mind in order to make the trial and the case run smoothly,” Gilliam said.
Other things to think about as early as possible are jury instructions. This is especially so in complicated cases where there are questions about which laws apply. It is critical to make sure those questions are framed clearly. Both sides are often asked to agree on and write jury instructions, and Gilliam said he urges counsel to hold a pretrial conference. “The sooner these issues are framed, the better quality decision you’ll get because the judge has more time to think things through for a reasoned – rather than reactive – decision,” he said.
Jury instructions are often not treated as an important element in a trial. “I really think jury instructions are a roadmap for your entire case and that’s why you need to go there first,” Petrou said. She advises looking at your witnesses and evidence, and making a chart of each cause of action and the elements of each cause of action, and then under each element write down who is your witness and what are your documents. Then ask yourself for each document, do you have a backup plan to get it entered into evidence if the first attempt doesn’t work. “This illustrates why it’s an incredibly helpful framework to view your entire case through,” she said.
If your case involves expert testimony, look at your experts early and ask whether you need to get them scheduled. Look closely at their qualifications, and understand how they can help or hurt your case. Ideally, get someone who does not testify exclusively on one side of an issue, because “jurors don’t like that.” Sometimes it’s unavoidable, but jurors may disregard testimony from an expert who only testifies on behalf of employees or employers, for example.
Remember that under rules, your expert must be qualified, and the evidence must be something that requires expertise. Know your jurisdiction and what laws apply, Petrou said.
Talk to all parties early about any complications you run into. Many judges have parties state their pretrial positions – the disputed facts, points that parties can stipulate to, etc. – to avoid a nightmare. The more that you can frontload your working and thinking about the issues, the more productive the session in court with the judge will be.
Petrou said it’s important to keep your purpose in mind, and know your judge’s rules and preferences. For example: will jurors be allowed to ask questions? “That’s something you’re going to want to know, and you can ask the judge during pretrial conference,” Petrou said.
Avoid filing generic motions that are unrelated to the specific facts of the case, and remember that facts are much more persuasive than characterizations.
Avoid filing unopposed motions. “If you haven’t already, make sure you understand fundamental procedure in the department where you will be trying your case,” Petrou advised.
A motion in limine is a request that certain testimony be excluded, often evidence that is inadmissible or prejudicial. To make these motions work, be specific and focused. “There’s no quicker way to annoy a judge than to file a series of motions in limine that you were just told not to file because they’re standing order,” Petrou said. Gilliam agreed. “What I appreciate from counsel is a clearly articulated, well-framed, fact-based presentation of the basis for the motion in limine.”
Discuss issues surrounding jury instructions up front. Should there be pre-instructions on substantive law? Think about asking the judge to offer pre-instructions to the jury before you make your opening statement and before the presentation of evidence, so that when jurors hear evidence they can put it in the proper framework, Petrou advised.
Avoid being argumentative when you propose instructions. Instead, have a well‐reasoned basis for changing or supplanting model instructions. In civil trials, give the judge a witness list with time estimates you expect to need for each witness.
Remember that jury selection is when jurors start looking at you every second. During the trial, minimize disputes in front of the jury, such as requests for sidebars and objections. Always remember the optics: How are you treating co‐counsel, opposing counsel, court staff and the judge? Jurors notice these things. When there are juror questions during deliberations, keep in mind that the court is looking to see which party is reliable and helpful.