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I have been asked to share with the Utah Bar my perspectives on courtroom practices of successful lawyers, especially those that I appreciate as a trial judge. My emphasis is
not on techniques but more on behavior or conduct. As I do so, I really have in mind the younger members of our profession. Thus, I hope that the more seasoned in our profession will
forgive me if, at times, I state the obvious. I will begin with some general observations, and then I will focus my comments on motion practice, trial practice, professionalism, and
civility.
General Observations
In more than 21 years that I practiced law and in more than ten years that I have served as a district judge, I have watched very carefully
eminently successful lawyers and the things that they do to enhance their effectiveness, credibility, and professionalism. I have come to the settled conclusion that they pay attention to
small details and they manage them well. They may delegate ministerial tasks to staff but they remain accountable, and they know it. They loathe making excuses. They have the capacity to
look objectively at their cases through the eyes of the judge or the jury or their adversary, and they adjust their strategies accordingly. They see the rules that govern the law practice
as applying to them and not just to the other lawyer. They strive carefully to comply with the rules because they know that they lubricate the machinery of the judicial system and instill
predictability in the law practice.
Motion Practice
Successful motion practice always begins with a clearly focused motion or response and a thoughtful and well-prepared
memorandum of points and authorities. Successful lawyers make it their business to learn how to write well and effectively. They realize that they may never be as good as what they write,
but they know that they will never be better. They pay attention to the mechanics of good writing (grammar, punctuation, syntax, diction, voice, etc.) and sentence and paragraph
organization, as well as to the substance of what they have to say. They write high-impact legal briefs. They state clearly, directly, and up front the relief they seek; the factual
predicates underpinning that relief; and the legal bases supporting it by way of statutes, rules, or case law. They cogently analyze the facts in the context of the law, and then they
finish with a strong conclusion. They do these things as succinctly as they can, excising all surplusage, for they know that there is power in brevity and clarity. They use forceful verbs
and nouns, and they use adjectives sparingly and selectively. They submit case authority during the briefing process rather than during oral argument, except in extraordinary
circumstances, knowing that withholding the case law until the hearing places their opponent and the court at an unfair disadvantage.
"In those cases where a hearing is
granted," Rule 4-501(3)(e) of the Utah Code of Judicial Administration requires that "a courtesy copy of the motion, memorandum of points and authorities and all documents
supporting or opposing the motion shall be delivered to the judge hearing the matter at least two working days before the date set for the hearing. Copies shall be clearly marked as
courtesy copies and indicate the date and time of the hearing." There are no exceptions to this rule. A lawyer may delegate to his or her assistant the assignment to deliver courtesy
copies to the judge, but the lawyer remains responsible to see that the judge gets them. I like to highlight and to write notes and questions in the margins of memoranda, and I cannot do
that with originals filed with the court. Because of the press of court business, I sometimes need to take home matters for the next day's calendar. I appreciate very much lawyers who
give me courtesy copies because I can then just take home the pertinent motions and supporting memoranda, affidavits, and case law, rather than pack voluminous case files.
As I
approach the reading of the motion and memoranda from both sides, I appreciate a non-ex parte letter from one of the lawyers telling me what motions are scheduled for hearing and the
titles of the memoranda that have been filed from both sides. Thus, I can quickly focus on just those matters for hearing or decision. A reply memorandum, even if it just tells me that
the lawyer has nothing further substantive to say, so that I know that the file is complete and ready for decision, is also very helpful. I really appreciate lawyers who promptly call my
clerk after they have resolved a motion prior to the hearing, thus relieving me of needlessly reading memoranda.
In preparing for oral argument, I will have read all of counsels'
memoranda, and often pivotal cases cited in the memoranda, before oral arguments. Therefore, lawyers do not need to unduly recite facts. During oral argument, I want lawyers to focus on
the analysis in the memoranda and to persuade me.
I go into oral argument with a tentative decision if the issues have been well-briefed. It is my part of being prepared, just as
I expect the lawyers to be prepared. But I remain fluid. I have an attitude of wanting to be taught. The lawyer should do so without being condescending or demanding (e.g., "I invite
the court's attention . . . ." rather than "I direct the court's attention . . . ."). Lawyers should concede obvious weaknesses in their cases, not overstate their position
(otherwise it falls of its own weight), and answer my questions forthrightly and directly.
Finally, successful lawyers avoid subordinating issues to personalities. They restrict
their statements in their memoranda and in oral arguments to their opponent's arguments or to the issues before the court, rather than discrediting their opponents personally. A
sarcastic, insulting, or intemperate remark or tone is unprofessional of the lawyer speaking and demeaning of both lawyers.
Trial Practice
The hallmark of truly great
trial lawyers is meticulous preparation. Preparation is the hardest and most brutal part of being a trial lawyer. Consummate trial lawyers master the facts of their case, know the law
applicable to the case, and have a clear theory of the case long before trial. They avoid the temptation to "dump" the facts on my bench and expect me to sort them out to
fashion a proper result. They carefully plan which witnesses will prove each element of their cases, and they plan ahead with timely subpoenas. Prior to trial, they prepare their
witnesses for trial to ensure that the evidence is forthcoming and to make the client feel comfortable on the witness stand. As a result, these lawyers on direct examination do not have
to ask leading questions to let a witness know where the lawyer is going; the witness knows. Likewise, these lawyers minimize damage to their cases on cross-examination because their
witnesses reasonably know what will be asked of them. By knowing exactly what they want to prove through arduous forethought, successful trial lawyers make their questions direct, simple,
clear, and purposeful.
Because they are prepared, successful lawyers more often settle their cases. They are pragmatic by focusing on the real issues and by avoiding inane fights
over inconsequential matters. Judges and juries see them as being reasonable, fair, and professional. These lawyers also avoid creating unrealistic expectations in their clients that
cannot be satisfied even with a just decision.
Because they are prepared, they confer in advance of trial with opposing counsel in an effort to resolve motions in limine; or, if
necessary, they file those motions with the court before trial, where possible, knowing that they will likely receive a more considered, accurate ruling from the court when the judge has
had an opportunity to study the law and to thoughtfully reflect on the issue.
Because they are prepared and have given forethought to their case, successful lawyers come with
charts and summaries. They recognize that some judges (and I am one of them) and jurors are visual in their problem-solving approaches; these judges and jurors understand more readily
when they see pictures and summaries. Moreover, if I take a case under advisement, charts and summaries help me to readily recall the evidence later. These lawyers' forethought about
their cases enables them to come to court with courtesy copies of exhibits for the court and opposing counsel, as opposed to expecting me to interrupt the trial for the bailiff to make
copies. They place their voluminous exhibits in binders or folders behind numbered tabs to allow me during bench trials to quickly locate exhibits during witness examination, instead of
expecting me to hunt for an exhibit through a disheveled pile of exhibits on the bench.
Because they are well-prepared, they come to court with clear, thoughtful, powerful opening
statements that allow the fact-finder to see exactly what their cases are about and how they are going to prove them. There is a tendency by some lawyers, perhaps out of fear of
trespassing on the court's time, to waive opening statement, especially in a simple or one-issue case. This is a mistake. I want to hear from the lawyers because I want to appreciate the
relevance of the evidence as the lawyers introduce it. Lawyers live with cases for months, sometimes years, and assume that the case is clear and understandable because it is clear to
them, without realizing, sometimes, that the judge or the jury will hear the evidence for the first time during trial and must immediately understand it.
During trial, successful
lawyers ask only proper questions to maintain their credibility and professionalism. If they want to ask leading questions, such as when plowing through preliminary background
information, they ask permission of their opponent, and then they accept gracefully the opponent's decision without sarcasm or a grimace, regardless of the time that will be wasted. When
they need to object to inadmissible evidence, they make a specific legal objection: "Objection, hearsay." They avoid offering an argument instead: "Objection. The witness
should be asked only what he knows, not what someone else told him." I want to hear argument, if necessary, only after counsel makes a specific legal objection. In handling
objections, lawyers should address only the court, not their opponents.
Attorney fees are often an important part of a trial. Successful lawyers present the requisite evidence to
prove the reasonableness of their fees (actual time, necessity of the fees, customary rate, and, possibly, other factors provided in the Code of Professional Responsibility). In point, a
court may not infer these requisites, and it is reversible error for it to do so. In alimony cases, for example, the court also needs evidence of the requesting party's financial need for
fees and of the other party's ability to pay them. Again, by being prepared for trial, successful lawyers introduce foundational evidence for a request for fees long before they ask for
them at the close of the case.
Successful lawyers always make a closing argument, even if their opponents waive it. Lawyers do not need to worry about encroaching on my time; I
want to hear from them. This is their opportunity to confirm reality for me, to refresh my memory, to clarify a confusing point, to relate a piece of evidence to a theory of the case, to
shape the evidence to their point of view, and to persuade me.
In jury trials, I permit lawyer voir dire. To the credit of the lawyers that have appeared in my courtroom, I have
not had a bad experience yet. I conduct preliminary voir dire, consisting of the statutory qualification for jury service; whether any prospective member of the jury has knowledge of the
case or has a current or past relationship with any of the lawyers, parties, or witnesses; and each juror's general background. Afterwards, I will permit each lawyer to ask questions. I
expect the lawyers to use this time only to expose potential bias and to obtain information in order to exercise their peremptories on an informed basis. This is not a time to argue the
case, to gain commitments, or to ingratiate themselves to the jury panel. If a lawyer has a concern about the propriety of a question, he or she can resolve it in chambers in the trial
management conference immediately before trial.
During the trial, successful lawyers never argue a ruling in the presence of the jury, for fear of alienating the jury and hurting
their credibility. If they believe that I have erred, they ask for a bench or chambers conference. When the court sustains their objections, they do not thank me for the favorable ruling
(because I have simply done my job) but instead they just move on. They also show respect for others by not interrupting or talking over other people, such as witnesses or the judge.
These lawyers do not ask the court to recognize their witness as an expert in front of the jury but instead they lay a foundation for the court to recognize the expert and then just move
forward to elicit the expert's opinion, unless there is an objection. Standard 17 from the Civil Trial Practice Standards, promulgated by the American Bar Association, February 1998,
states : "Qualifying' Expert Witnesses. Except in ruling on an objection, the court should not, in the presence of the jury, declare that a witness is qualified as an expert or to
render an expert opinion, and counsel should not ask the court to do so."
Professionalism
Lawyers should dress professionally for court. Many lawyers today wear
business casual clothes to the office; however, they should not appear in court wearing them. When they come to court, they should wear dignified clothing befitting the decorum of a
courtroom and the serious nature of the work they conduct there. Accordingly, male lawyers should wear a coat and tie. Jeans or an open collar shirt are inappropriate.
A lawyer's
decorum in the courtroom bespeaks his or her professionalism. I commend to every reader an excellent article from the San Diego County Bar Association, entitled "50 Tips from the
Bench." This is found on the Utah State Bar's Litigation Section's web page, Judge's Bench Book, under the "Courtroom Conduct" tab: www.utligsec.org. Here are nine
suggestions from the article that will enhance every lawyer's professionalism in the courtroom:
1.Be on time, even early.
2.Stand when addressing the court.
3.Formally state your appearance by giving your name and the party you represent. For example, "Good morning, Your Honor. (Your name), appearing for the plaintiff, the moving
party."
4.Properly address the court, such as, "May it please the court?" "Your Honor" should only be used as a form of address, not as a personal pronoun
or a possessive. For example, do not say, "In light of Your Honor's ruling...." Rather, say "In light of the Court's ruling...." Never address the court as
"Judge" in court; this is a form of address that should be restricted to social occasions. In court, the address should always be "Your Honor." Likewise, never address
the court as "you" or refer to "your" ruling.
5.Do not interrupt the court or counsel.
6.Argue to the court, not with the court, by pointing out the
weaknesses in the other party's position or argument, not the failings of the court's tentative opinion.
7.Stop arguing after the court's ruling. Acquiesce for the time being, and reserve your reargument for appeal.
8.Avoid visual displays of pique, such as through frowns or gestures,
that could be construed as disapproval of the court or of its rulings.
9.Exhibit grace and style by concluding your appearance with a genuine "Thank you, Your Honor,"
even if you lost. After all, you had the court's attention and the opportunity to present your argument.
The suggestions for lawyers to stand when they address the court and to
address the judge in open court as "Your Honor" have nothing to do with the aggrandizement of the judge; they have everything to do with the sophistication and urbanity of
lawyers and their unconditional respect for courts as essential institutions in our democratic society. (In contrast, judges, as individuals, must earn their respect, just like anyone
else.)
Civility
The lawyers respected by everyone are invariably civil to everyone - opposing counsel, opposing parties, witnesses, judges, and clerks. Civility
encompasses not only courtesy, politeness, and consideration for others, but it also embodies an abiding respect for "another's aspirations and equal standing in [our] democratic
society."1 Civility requires that lawyers practice the Golden Rule; exhibit restraint and forbearance; turn the other cheek; extend courtesy and respect, regardless of an opponent's behavior; and remain focused on the high road. Lawyers practice civility because they are urbane and decent when they do so and because this practice, especially in the crucible of the courtroom, infuses the process of justice with uplift.
Successful lawyers approach litigation as an art practiced by educated and skilled professionals, not as a war campaign or a street fight, typified by "win-at-any cost,"
"in-your-face," or Rambo strategies, without regard for fairness or justice. In the hot cauldron of litigation, resentment, hostility, and anger between the parties seems
inevitable sometimes, but lawyers and judges should resist the temptation to reflect those sentiments. They ought to reflect the spirit expressed by the character Tranio in Shakespeare's The Taming of the Shrew: "And do as adversaries do in the law, strive mightily, but eat and drink as friends."2
Thus, in their dealings with opposing counsel, successful lawyers treat him or her, not as the "enemy," but as an "honored
opponent."3 They are courteous, polite, and firm, rather than rude, abrasive, confrontational, and boorish; they know how to disagree without being disagreeable. They see incivility, manifested in dilatory, obdurate, and vexatious conduct, as generating an enormous layer of unnecessary expense, delay, and paperwork for lawyers and for courts.4 They understand painfully that incivility in acrimonious litigation causes stress and emotional tumult in their lives, sucking job satisfaction out of the law practice and inevitably and perniciously invading the peace and quiet of their private lives. In contrast, they have learned that civility makes the practice of law more enjoyable. As a Pennsylvania lawyer Jack Gallagher said, "Civility is what makes the practice bearable. It's the flesh that softens the hard bones of the rules."5 A man, respected very much in this state, said that "civility . . . gives savor to our lives."6
In
their relationships with other lawyers, successful lawyers make promises sparingly but keep them faithfully. Their word is their bond. They know that it takes years to attain a reputation
of honesty, but they know that it can be lost in a moment of bad judgment. They give their opponents the presumption of good faith; they do not impute malice if it can be explained by
thoughtlessness or stupidity. (I heard former Chief Justice Michael D. Zimmerman give the preceding wise counsel at an Annual Meeting of the Utah State Bar some years ago, except he said
it better.) "In the absence of living with angels, we must live with human beings, and this includes their interests as well as their varying degrees of wisdom and folly."7
In their relationships with clients, successful lawyers make it plain to clients that "civility should not be equated with weakness."8 They see themselves as professionals, not as hired guns, and they zealously preserve their independence from their clients. They tell clients, up front, that they reserve the unfettered right to grant accommodations (continuances, extensions, etc.) to opposing counsel without conferring with them, so long as it does not prejudice the client's interests. Above all, they listen to their consciences when they experience disagreements with their clients. Clients have a right to receive a lawyer's loyal, committed services in lawful and proper objectives only. When appropriate, a lawyer should politely inform his or her client that the client's case has no merit, for example, or that he or she will not engage in tactics primarily for delay. He or she is not afraid to unequivocally say "no," even if that means losing a long-standing client. These lawyers see themselves as members of a noble profession steeped in a great history. They never allow themselves to be used unseemly as mercenaries or gunslingers.
The rule of law is the sizing in the fabric of our society, but society's respect for the law is predicated on its respect for and its attitudes about lawyers and judges. In their
conversations with clients, lawyers, judges, and the public in general, successful lawyers avoid the gratuitous deprecation of members of the bench and bar because they know that it
diminishes our profession and erodes confidence in our courts. For the same reason, they do not repeat tasteless, insulting lawyer jokes. They know that if they want the public to respect
members of the legal profession, then its members must respect each other. Much of the public's contempt for and derision of lawyers and the media's abuse of them is unjustified, but some
of these things are self-inflicted.9 I am not advocating a Pollyanna attitude toward our profession and its members. Legitimate criticism is not wrong, but we should have constructive motives and be cautious, objective, and balanced in our criticism. I like the Four-Way Test of Rotary International: "Is it the truth? Is it fair to all concerned? Will it build goodwill and better friendships? Will it be beneficial to all concerned?"
Conclusion
As lawyers and judges, we offer to society not only our skill and education but also ourselves. May we always offer our "best" selves by giving our
best thought and our most conscientious effort and by serving with honor, professionalism, and civility.
Footnotes
1. Justice Anthony M. Kennedy to the American Bar Association, 8 Nevada Lawyer 10 (Nov. 2000).
2. Act I, Sc. II.
3. See Judge Brent E. Dickson and Julia Bunton Jackson, Professionalism in the Practice of Law: A Symposium on Civility and Judicial Ethics in the 1990s: Renewing Lawyer Civility, 28 Val. U. L. Rev. 531, at 532.
4. See Nora C. Porter, The Best of Times, The Worst of Times: Two Views on the State of the Profession: Part I: Lawyers Speak, 20 Pennsylvania Lawyer 16 (Nov. -Dec. 1998), at 20.
5. Id. at 20.
6. Gordon B. Hinckley, Standing for Something 53 (Times Books, a division of Random House 2000).
7. Justice Allen Crockett from an unidentifiable source that I read more than 25 years ago.
8. Jeffrey Simmons, George Washington Esq.: A Model of Civility, 34 Arizona Attorney 16 (Oct. 1997).
9. See Judge Marvin E. Aspen, Professionalism in the Practice of Law: A Symposium on Civility and Judicial Ethics in the 1990s: The Search for Renewed Civility in Litigation, 28 Val. U. L. Rev. 518 (Winter 1994).
Judge Lyon was appointed to the Second District Court in July 1992 by Governor Norman H. Bangerter. He serves Weber, Morgan, and Davis Counties. He has served as associate
presiding judge and presiding judge of the Second District Court, as a member and chair of the Board of District Judges, and as a member of the Child Support Guidelines Advisory
Committee. Prior to his judicial appointment, he practiced in general litigation with the law firm of Lyon, Helgesen, Waterfall & Jones, P.C., in Ogden. Judge Lyon received his
bachelor's degree from Weber State College in 1968 and his juris doctor degree from the University of Utah College of Law in 1971.
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