By the time the governor called to appoint her to a judgeship, the Honorable Christina Habas had already spent plenty of time in the courtroom—on the other side of the bench. Formerly a partner with the law firms Bruno, Bruno & Colin and Watson, Nathan & Bremer, she represented governmental entities and members of the law enforcement community, and also did significant work in employment law, civil rights law, insurance and personal injury. It seems clear she developed a remarkably balanced perspective during the course of things: In performance surveys of the Second Judicial District Commission, both attorneys and non-lawyers, in large majorities, have praised her fairness, thorough understanding of the law, and human relations in her courtroom. Happily for the profession, she uses her spare time to share her understanding with others. Judge Habas has taught with the National Institute of Trial Advocacy for more than 15 years, has been adjunct faculty with the University of Denver, and is a regular presenter at
ABA TECHSHOW®, giving her take on how to make technology tick in the courtroom. It all sounds pretty serious, but anyone who’s been in conversation with her knows she also has a delicious sense of humor. Here, she gives
her view from the bench, including how to make your impact in trial presentations.
After 20 years or so in private practice, you were appointed to the Denver District Court bench in 2003. How abrupt was that transition and what changed the most for you?
CH: Since I’m still making that transition some four years later, I can’t say it was “abrupt.” In many ways, though, the transition was immediate. For example, eliminating the concept that I am an advocate was immediate. On the other hand, I’m still getting used to the fact that there is no instant gratification in this job. As a trial lawyer, you have some objective measure of your performance. As a trial judge, those measures are difficult to come by.
Do you miss private practice?
CH: I can honestly say I haven’t missed being a trial lawyer for one minute that I’ve been on the bench. Except, of course, for those days in private practice when a deposition was cancelled and I could take the day off. Now you’ve got me hankering for those days again.…
If you could take what you’ve learned as a judge, go back in time and have a conversation with your private practice self, what would you most urgently want to tell her about being effective in the courtroom?
CH: Make sure to tell a story—
As I sit on the bench, watching hearings or trials, I am constantly struck by how difficult lawyers often make it for the decision maker. So when I say that lawyers should learn to tell stories, I don’t mean that they should be overly dramatic, or make things up. I mean that they must learn how to take all the disparate elements (facts) of their case and find a way to make those elements easily understood and memorable. Let me offer this example.
If as a trial lawyer I went through a droning, detailed chronology of the purchase of a business that ultimately resulted in the business closing because of a failure of a certain delivery of widgets, this would be accurate, but it would not be memorable. However, if I change that approach to tell you about why this business owner decided to purchase the business, the struggles he had to obtain financing and start the business, the efforts he made to order the widgets from a reputable seller, and the ultimate impact on him and his employees when the order wasn’t filled, I give you a context that is memorable. Add to this the use of technology to illustrate that story and it is truly powerful.
This kind of presentation motivates a trier of fact to make things right. Isn’t that what lawyers want from their judges and juries?
You’re a judge, yes, but also a noted teacher of advocacy skills. How hard is it to remain impartial as the story unfolds in front of you? Put another way, how difficult is it to tease the underlying message from a botched presentation?
CH: Those two questions are not asking for the same answer by any means. The answer to the first question is that it is very easy to remain impartial. When I think back on the judges I have most respected, it was obvious that they were dedicated to making certain that all parties had their full opportunity to present their cases. Good judges might tell the parties if they have concerns, or particular leanings to help focus the presentation, but the judges’ willingness to listen and change their opinion in response is the most important factor.
As to the second question, it is not difficult to set aside a poor presentation in favor of content, but it is not always easy to see what is important in the case. It is sometimes amazing to me that lawyers forget how it was when
they knew next to nothing about their case. Giving the court (and juries) some way to see what evidence will matter is missing from many presentations. We are left to feel our way to find the important stuff. If we know how the case fits together early on, we can look for that same important stuff and know it when we see it.
I think, however, what you
really want to know (and what most lawyers are dying to know) is whether I sit on the bench and think about how much better I could do if I tried the case. The truth? I have never once done that. Not once.
You’ve become a supporter of better use of technology in practice and in the courtroom. When did you first see the potential in these tools?
CH: Working with David Masters on an enormously complicated case and seeing his command of the file contents and ability to search for any document and any testimony on a moment’s notice made me a believer. David, of course, is renowned as a legal technologist and I am nowhere near as competent as he is. But my very last jury trial occurred in a federal courtroom fully equipped with technology and I was able to very smoothly operate the equipment during that trial—what a rush! Then the governor had to go and appoint me to the bench, just when I was getting good.
What really, really,
really bugs you about how technology in the courtroom is used by counsel now? By your colleagues on the bench?
CH: You can see many examples of this by reading the entries I submit to the ABA TECHSHOW blog (www.techshow.com/blog). I usually try to send them right from the bench as I see technology used and abused during trials. But there are two particular concepts that demonstrate the lack of understanding by lawyers of technology in the courtroom.
The first is when lawyers use technology just to use it. This happens mostly in cases where there are huge numbers of documents but the lawyers have not identified the truly critical ones. What they will do is simply throw hundreds of documents on a document camera (I can’t say ELMO anymore, can I?) without showing the jury or judge why the contents of those documents are critical.
The second big annoyance is when lawyers just flash the document up on a screen—they don’t highlight it, do pullouts, compare documents or actually use the document. You might as well keep using enormous notebooks and just mention exhibits in passing for all the bang you’ll get for this buck. I’ve started limiting lawyers to 50 pages in jury notebooks and forcing them to use technology for the rest, but this requires real analysis. Also, while it cuts way back on the load on the jurors, it doesn’t do much for presentation, I’m afraid, because so few lawyers think about how they will use those exhibits.
What one magic technology bullet—real or imagined—would you like to see used by everyone in your courtroom Real Soon Now?
CH: This is imagined, for sure. I would like to see each juror have the ability to screen the exhibits and mark them as they see fit for their individual needs. I learn about effective advocacy more from jury notes than from any other means, and this kind of technology would help them and give me gold to boot.
Switching abruptly to another one of your many interests—motorcycles. Harley Davidson or BMW?
. It looks better with a cigar.