Judge Michael D. Lyon

Thoughts on courtroom protocol:

• I strive to make courtesy and respect hallmarks of my courtroom. In turn, I ask lawyers to be courteous and respectful to everyone.
• You usually should stand when addressing the court.
• In the beginning of a civil bench trial, please introduce the parties you have in the courtroom.
• Please do not argue with opposing counsel directly; address your comments to the court.
• Please do not move the lectern; it is positioned where it is to stay in line with the courtroom cameras that are making the record.
• If you cannot be punctual for a hearing or a trial, please call my clerk in advance.
  Things lawyers do that are particularly helpful
• For bench trials, I like courtesy copies of trial exhibits in a notebook with tabs to readily find particular exhibits and on which I can take notes.
• I appreciate courtesy copies of memoranda in all contested motions.

Things lawyers do that are not helpful:

• Avoid indignant objections. While a sharp response is sometimes understandable, it is often counterproductive.
• In examining a witness, please do not begin asking your next question until the witness has finished with his or her response. When people talk over each other, it creates problems for court reporters transcribing the testimony.
• When you object to your opponent’s testimony, please make a legal objection, not an argument. Further, except when the basis of the objection is obvious, state the basis of the objection. For example, “Objection, foundation.
• It is also helpful when you can tie your objection to a rule. For instance: “Objection, unfair prejudice under rule 403.”

What lawyers should know about motion practice in my court:

• I appreciate very much courtesy copies of the motion, memorandum, and all documents supporting or opposing the motion to be delivered to my chambers at least two working days before the hearing in all cases where a hearing has been granted. I also appreciate a cover letter or a note indicating the date and time of the hearing so that my clerk and I can appreciate how imminent the motion is.
• File motions for an over-length briefs in only exceptional cases. Please strive to be more succinct.
• File a reply memorandum even if it is only to tell the court that you have nothing further substantive to say.
• If a motion settles without the need for a hearing, please call my clerk as soon as possible to relieve me from having to read needlessly the memoranda.
• I invariably read all the memoranda submitted and often the controlling cases cited, particularly if you have appended them to the courtesy copies of the memorandum. Feel free to highlight portions of the cases for emphasis, but please do not make annotations unless you have made the same annotations on courtesy copies to your opponent, in order to avoid ex parte communications.
• When appearing in a criminal case, it facilitates movement of the calendar if you will be prepared to give the court only the number on the calendar where your case is located. I will then call the case. During sentencing, if you disagree with the pre-sentence recommendation from AP&P, give alternatives for my consideration. If there are errors in the pre-sentence report, tell me why they should change the recommendation to the court.
• In domestic cases, please give case history where it is necessary to understand the present problem. If you disagree with a recommendation of a temporary alimony award from the court commissioner, please tell me what the amount should be and why.

My impressions to be an effective advocate on motion practice:

• Be conversant with and follow rule 7, rule 56, and rule 65A.
• Please be prepared and be on time.
• Your aim is always to assist the court in understanding your position. At the outset of your motion or argument, begin with a succinct statement of the relief you are seeking and the basis for entitlement to relief. Your oral argument should supplement your memorandum or underscore the salient parts of your memorandum.
• Listen carefully to the court’s questions and answer them directly. Do not be tied to your “script.”
• Always be candid and realistic. Avoid overstating your position; it falls of its own weight when you do so. You always want to be an advocate the court trusts.
• Illustrate with hypotheticals that clarify.
• Use visual aids, summaries, accountings, bench courtesy copies, etc., when arguing if it will help clarify your argument or facilitate my understanding or note-taking.
• Use tabs behind your written memorandum to readily identify affidavits, cases, a copy of the statute, and other exhibits to your motion.
• Watch being overly dramatic.
• Where appropriate, waive an argument and just respond.
• Your attitude and demeanor should be professional, courteous, and pleasant.

What lawyers should know about jury trial practice in my court:

• Cross-examination. Your client has a right to expect you to be rigorous and even tough on cross-examination; however, keep it civil and dignified at all times. If you do, the jury will respect you also.
• Lawyer-conducted Voir Dire. The court will conduct preliminary voir dire only, consisting of the jurors’ statutory qualifications, their prior knowledge of the case, their prior jury service, and their general background, associations with the lawyers, parties, or witnesses. The attorneys may conduct all other voir dire. In granting this privilege, the court reposes confidence in the lawyers that they will not try their case during this phase of the trial. If you have concerns about questions, please discuss them with the court and opposing counsel in the trial management conference, discussed below.
• Trial Management Conference: My scheduling order provides for a trial management conference in chambers 30 to 45 minutes before trial on the first day of trial. This conference provides a last opportunity for the lawyers to resolve concerns about voir dire questions prior to trial, motions in limine, what you may be expecting of my staff or me, etc.
• Jury questionnaire: Though not appropriate in every case, jury questionnaires are effective tools for ferreting out bias in personal injury cases, high-stakes commercial litigation, or high-profile criminal cases. In such cases, I encourage the use of a party-proposed questionnaire as a supplement to oral examination. Rather than have each side prepare his own, the lawyers should confer with one another and submit, to the extent possible, one consensus questionnaire. If the parties cannot agree on questions, the court will conduct a pretrial conference to rule on the objections to the wording or substance of the proposed questions.
• Jury Instructions:
  • 1)The court will prepare its preliminary jury instructions before trial and the routine general instructions in Sections 1 and 2, respectively, of the Model Utah Jury Instructions (1993 edition), and a few concluding instructions.
  • 2)The lawyers shall prepare all other instructions applicable to the case. In doing so, please prepare the proposed instructions in Times New Roman, 12-point type, if possible, so that they are similar in appearance with stock instructions used by the court.
  • 3)To ensure that the court gives the jury instructions that the lawyers want from MUJI, the court asks the plaintiff in its scheduling order to submit a request for jury instructions to the court at least two working days before trial. This request will be by stipulation after conferring with the defendant. Both sides may submit separately only those instructions that cannot mutually be agreed upon.
  • 4)Non-MUJI instructions shall be concise, understandable, and neutral statements of law. Argumentative instructions are improper, will not be given, and should not be submitted. Further, it is often helpful for counsel to present memoranda or cases that support their positions on non-MUJI instructions.
• Court recesses. The court generally takes a ten-to fifteen-minute recess every sixty to ninety minutes during trial, or at the request of counsel. The court generally takes a lunch recess from noon to 1:30 p.m. In addition to lunch, this period allows counsel time to visit with witnesses, the court to stay ahead of paperwork or to work on jury instructions, and the jurors to take care of needful things also.

What lawyers should know about bench trial practice in my court:

• Charts and summaries. I like charts and exhibits that summarize and organize evidence. These things are very helpful to me, especially in refreshing my memory if I take the case under advisement.
• Opening Statement.There may be times when it is appropriate to waive an opening statement, but you ought to be cautious in doing so. Keep in mind that I do not know the case as well as you. Your opening statement is your opportunity to identify the issues and your theory of the case so that I will appreciate the relevance of the evidence you are presenting. An opening statement allows me to quickly focus on the real factual and legal disputes during the trial.
• Trial Exhibits. To conserve trial time, to facilitate organization, and to enhance your professionalism, please:
  • 1)Mark all trial exhibits prior to trial.
  • 2)Provide courtesy copies to opposing counsel and the court. I write on my courtesy copies to facilitate taking notes during the trial.
  • 3)If possible, put exhibits in binders or folders behind numbered tabs, especially the courtesy copies to the court. This practice allows the witness, opposing counsel, and the court to readily locate an exhibit on direct and cross-examination without having to search through a disheveled stack of lose exhibits that inevitably becomes jumbled during trial.
• Closing Argument. I encourage you to accept my invitation to give a closing argument. This is your opportunity to persuade, to confirm reality, to clarify misunderstandings that might have occurred in presenting the evidence from either side, to shape the evidence from your perspective, and to tell me what your client really wants, especially in light of the weight of the evidence before the court. Within obvious limits, do not worry about trespassing on the court’s time, for this is an important part of the trial, and I want to hear from you.

My clerk wants you to keep these things in mind:

• All of my cases are set on a multiple-set calendar. My clerk will be calling you one or two days before trial to confirm whether your case is going. Please be prepared to address that with her. If you anticipate being out of the office, please leave word with an assistant.
• If my clerk is in trial with me, leave your name, telephone number once, and a brief message, including the urgency of your need for help, and she will return your call as soon as possible.
• Clerk's name and phone number: Shannon Ethridge at 395-1171

Other comments or suggestions:

• I really appreciate lawyers that are prepared, pragmatic, courteous, and professional.
  

Contact the Section:
litigationsec@utahbar.org