Trials and Tribulations: Tips from Judge Karnow

By: Tim Hallahan

Tim HallahanI recently read an excellent article titled Trials and Tribulations by Hon. Curtis Karnow who is currently hearing complex litigation cases in San Francisco Superior Court. Judge Karnow has taught at Yale, USF, Hastings and Stanford in addition to authoring many articles and book chapters and teaching judges for the Center for Judiciary Education and Research. With his permission I’ve collected here a number of his suggestions on various litigation topics so you can see ideal and less than ideal lawyer behavior from the judge’s perspective. These are all direct quotes from his article.

Dealing with the Judge
Do not address the court staff members (while court is in session) without permission from the judge, including asking them to do a task for you such as look something up in the docket or the computer.Don’t use “Judge” in open court. Even during arraignments. Save that for chambers and side bar conferences. “Judge” is informal and not for courtroom use. Use “Your Honor.”

Don’t embarrass the judge, who may be a casual acquaintance or someone you’ve had in a prior case, by assuming familiarity or referencing common friends in front of opposing counsel. Opposing counsel doesn’t want to be “home towned” and the judge doesn’t want opposing counsel to think that’s what’s going on. It is not necessary to these things to be a “real” lawyer:

  • Make every objection in the book;
  • Antagonize the judge, hoping he’ll make a mistake because every mistake is a potential ground for appeal;
  • Think the judge is the enemy;
  • Manifest contempt for the judge or opposition counsel or the opposing witness who you think is a lying piece of cheese;
  • Constantly insist on making “a record,” not because you want the judge to do anything or are truly trying to persuade the judge, but simply to control the situation, or to influence the watching jury.

On the other hand, there is no need to be timid or obsequious. The courtroom is your courtroom and the podium is for you. You are an officer of the court, and you belong there. The judge needs you as much as you need her. Be brave.

Don’t be petulant. Don’t whine. Do not make a face, such as one might after unexpectedly eating a lemon, as a response to the court’s ruling, or spin on your heels and walk out of the courtroom as a display of what you think about the court’s ruling.On time means getting to court early. This includes your witnesses.

Never waste the time of the jury.

Motions
Read the Local Rules. Remember the Local Rules. Follow the Local Rules.

Why would you file 35 in limine motions, risking a meager few minutes examination of each, when two of them are complicated and very important–and 33 of them are innocuous?Keep your eye out for the practical result. When judges have leave to do it, they generally are looking for a fair, equitable and practical result, in at least two contexts: practical (A) in the context of the case–what will be best for the lawyers and clients in terms of burden–and (B) in terms of the outside world–what sort of result makes sense were it to be generalized across many similar cases, i.e., the sort of precedent the decision creates.When a judge says “Is there anything else?” she often means “I’m done.” Know when that is, and add only critical argument not previous made. Briefly.

Evidence
You must have copies for the other parties and the judge. And no, they cannot be different versions than the original.

My goodness we do love our paper. In a typical 5-8 day trial, I suggest 25 key documents is about right; anything else is lost in the miasma. Consider summaries and compilations. It is common to see cases in which the parties have agreed to the admissibility of large quantities of documents, and then never mentioned most of them again including in closing argument.At least when used as evidence in a case-in-chief, reading a deposition is a deeply unfortunate use of time at trial. No judge likes like pages of documents read into the record–just admit the document, highlight the key sections, and project those graphically or hand the damn thing out.

Multiple bases for objection are sometimes right, but not often, and they make it more difficult for the judge–who too is moving at light speed now–to evaluate the real evidentiary problem. In one trial the lawyer objected to question on eight different bases. I paused and asked her to pick two.

Technology is great if lawyers know what they’re doing and a distraction and waste of time if they don’t. Great high tech essentially vanishes: the message shines through and the processing ot the message goes unnoticed. Lousy high tech is obvious, and gets in the way of the message.

A carefully arranged counsel table sends a very different message than a table with scattered overlapping papers. Make neat piles. Counsel who finds what he or she is looking for right away not only saves time, but is favorably contrasted with the lawyer who is constantly fumbling, apologizing for not being able to locate something, and otherwise apparently out of control.

Next Time
I hope you find these tips from Judge Karnow useful. I’ve added quite a few to my teaching notes. Next time I’ll select a few more for you.

HOT BONUS
Try your hand at I Object! and I Object Again!: Criminal, my two online Qstream evidence course.  Go to http://www.QStream.com, sign up, and, over the course of a month or so, two questions will appear in your email box every few days. You can practice making rulings and sharpen your evidence knowledge.  It’s fun, educational, and free.

Tim Hallahan is Director of the Trial Advocacy Program at Stanford Law School, a judicial education attorney with the Administrative Office of the Courts, a national CLE speaker, and cofounder of The Hecht Training Group, a litigation skills training firm (http://www.hechttraininggroup.com). He also serves on the ACBA CAAP Advisory Committee and chairs the ACBA Communications Advisory Committee.

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