Wednesday, October 20, 2010

Advice from a Trial Judge

Advice From a Trial Judge

 John E. Stively, Jr. was an eminent trial judge in Chester County , Pennylvania. When he retired in 1986, he was asked for his advice on being an effective courtroom advocate. Here are his 38 pieces of advice. Many years later, they remain timely.

1. Rise to your feet when addressing the Judge.


2. Show the Judge respect.


3. Don’t ask the Judge tactical questions.


4. Only object when questioning will hurt, not because
it’s technically correct.


5. At sidebar take a position and hold it; don’t withdraw
an argument because it makes a difficult decision
for the Judge.

6. Don’t protest an adverse ruling - get ready for the
next round.

7. Don’t appear to be a friend or buddy with opposing
counsel (in front of jury); don’t use first name;
be reserved.

8. Don’t let jury think the case is a joke; don’t smile too
much during trial or laugh.

9. Never argue directly with opposing counsel; address
the Judge and make comments through the Judge.

10. Don’t let opposing counsel make a speech to a jury.
When asked for the ground for objection, don’t let
him or her begin with “I’m trying to show”.

11. Don’t let counsel conclude with leading questions
to capsulize the testimony; don’t let counsel lead on
redirect.

12. Appear to be in control in front of jury; seem to
know what you’re doing. Have correct papers organized;
don’t fumble with items in front of jury.

13. When standing in front of jury, stand on own feet,
look them in the eye; don’t lounge against anything.

14. Use change in volume to make a point; hit the
important points; vary your voice.

15. Avoid “ahh” and “you know”.

16. Listen to yourself once in awhile.

17. Have the witness speak up.

18. If a witness marks something, have it identified and
shown to the jury; let them in on the secret, not in
closing argument or jury room - YOU ARE TRYING
TO CONVINCE JURY.

19. Use diagrams and charts to help jury understand.

20. Prepare your case - facts and law.

21. Make a checklist of things you have to prove (e.g.,
value in theft case).

22. Have a checklist for each witness.

23. Don’t ask questions like “Do you know, if the watch
was running” because the answer “yes” implies the
watch was running but that isn’t the question. Don’t
use “Did you have the occasion to do something?”

24. Be careful of the last question on cross.

25. Highlight the essence of a witness testifying in closing
argument.

26. Rothblatt “The Art of Cross-Examination” - READ IT

27. In cross, try to figure out what you want to accomplish;
don’t just have witness regurgitate testimony;
leave alone good answers for you; don’t let the witness
have an opportunity to patch up an answer he
screwed up.

28. Make notes of direct examination; draw line down
middle what witness says on left, questions on right.

29. Sometimes it’s smart not to ask questions on cross.
You can imply that the witness is lying by the way
you tell the Judge that you “don’t have a single solitary
question”.

30. Every question of cross should be leading.

31. Don’t ask a question unless you have a chance of
proving it wrong; don’t let a witness give truthful
testimony - he’ll sound and look truthful. A witness
who is lying will want to testify about those aspects
of the matter which are truthful and brush over the
part where he has to lie. Focus your questions on
the part he’s lying about.

32. A witness with sympathy of jury (e.g., mentally
slow), don’t tear apart; cross examine kindly if you
do.

33. Always remember the jury is the group you’re trying
to impress.

34. Be the trial advocate you want to be and make yourself
into that.

(ljs)


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