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Preparing for Your First Civil Trial, Part Five: The Court and the Judge

By Jennifer L. Saulino, Maureen R. Knight, and LaQuita S. Wornor

An attorney told one of us as we prepared for our first trial, “You have done all of this before (question witnesses, make arguments to judges, etc.), now you’ll just be doing it in a different setting.” As comforting as that may have sounded at the time, it turns out that the “different setting”—complete with jam-packed counsel tables and a jury—is significantly different from taking depositions in the comforts of your firm’s conference rooms or even making arguments in empty courtrooms on motion days.


Before going to trial you should obtain as much information as you can about the local way of doing things, how trials are conducted before your assigned judge, and what type of technological capabilities will be available once the trial begins. When it comes to trying your first case, ignorance is not bliss; it is terrifying. And like walking the halls of your new high school during the orientation before freshman year, learning about the court and the judge will not only enable you to effectively navigate the courtroom and the proceedings but also provide you with a little peace of mind.


You should also obtain information about the arrangements of the courtroom. This will help you and your witnesses understand how the trial will physically be conducted, including where your witnesses will be seated in relation to the jury and where a video screen will be located in relation to the witness. You will also want to find out whether there is a conference room at the courthouse where you may store your trial materials, conference during recesses, and allow witnesses to wait for their appearance in court. Also, ask whether you can have access to that room during nontrial hours.


There are several resources for learning about the courtroom and the judge. The first resource should always be the local rules of practice. Even if you are trying your case in your own jurisdiction, admit it, you’ve never read beyond the sections of the local rules on discovery and dispositive motions. In addition to the formal local rules, always check to see if your judge has his or her own rules or standing orders pertaining to the conduct of your trial.


Another resource for learning about the court and the judge is other lawyers. You may have colleagues in your firm who have tried cases in this court or before this judge. If so, they may have a wealth of information. Judges often have significant idiosyncrasies and preferences that are unlikely to be reduced to writing. (Few judges will include “irritates easily” or “has no sense of humor” on their own trial practice guidelines.) If you are outside your jurisdiction, you should look to local counsel to assist you with understanding the local rules of practice. (Indeed, affiliation of local counsel may even be a requirement in some jurisdictions.) When you speak to these knowledgeable people, make a list of trial-related nuances and pick the local attorney’s brain for specifics, as well as general insights (handling of exhibits or objections; approaching the witness stand or the jury box; methods for publishing exhibits to the jury; whether the judge favors particular model jury instructions; and how the judge will conduct voir dire).


An often overlooked source of information is the judge’s clerk or courtroom deputy. If possible, befriend him or her and create a connection that will allow you to learn about the judge’s unwritten preferences. No topic is too insignificant (e.g., if you are a woman, find out whether the judge looks unfavorably upon pant-suits). We have found that the courtroom deputy provides some of the most useful information about courtroom procedure, which, for us, has included such gems as where to snag the best breakfast in town and where to find closet space in the courtroom for storing hardware during the many weeks of the trial.


Finally, we realize that time is precious when you are preparing for trial, but one way to learn the answers to many of your questions—even those you have not thought of yet—is to observe one of the judge’s trials or evidentiary hearings. There is little parallel for sitting in the courtroom and watching for yourself, introducing yourself to the courtroom staff early, and generally becoming comfortable that you know how things work in that room.


Previously: "Where and How to Begin," "Depositions," "Meeting the Judge," and "The Task List and the Trial Outline."


Jennifer L. Saulino is with Covington & Burling LLP, Maureen R. Knight is with Constangy Brooks & Smitth LLP, and LaQuita S. Wornor is with Frost Brown Todd LLC.


 

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