Judge William W. Barrett

FJC: As things stand now, your calendar is almost all criminal, not civil, so many of our usual questions will not apply. But I thought that we might go through them nevertheless in the event that people happen to have a civil case or your go back to doing a civil caseload and also some of things might be relevant to criminal practice. So let us start off at the top of our list and that would be under new civil rules and scheduling conferences. I take it that you have not had any experience with those yet?

Judge Barrett: That is correct.

FJC: Let’s talk about motions practice, that would essentially be the same in a civil and a criminal case. Do you want to get courtesy copies on motions?

Judge Barrett: Absolutely, and that is one my pet peeves, because I don’t get them as often as I would like and, therefore, I am digging through the file trying to find them and if I have them I will read them.

FJC: And, you would probably like them in the format where the significant cases are attached. Some judges have expressed that they would like to get all in one package, opposing counsel’s stuff, your stuff, so they can just pick it up and take it home if they want to without having for forage through. I suppose that would be the ideal. Is that how you like to get it?

Judge Barrett: I would like to get it that way, but if I don’t, you mentioned important cases, I would appreciate that, it saves me the time of trying to look them up and I will read them.

FJC: Do you routinely grant hearings if they are requested, or do you save them for dispositive motions? I guess there is a difference here in criminal practice, how does it work?

Judge Barrett: In the criminal practice I set hearings any motion that is filed. I think it is important enough when someone’s liberty is at stake that if it is something important and usually it is a motion to suppress where it may require a witness anyway so I schedule hearings on all motions in criminal practice. In my civil cases, dispositive motions, obviously, I would grant them. If I felt that the issue was significant enough that oral argument might be helpful, I would set it for hearing, but in most instances, I would not. I would just rule on the submissions on the memos.

FJC: How strict are you on overlength memos? There is a rule that some judges follow it and some do not.

Judge Barrett: Well, unfortunately for me, again when I was doing civil cases I did not follow it, I allowed overlength memos to be filed. I am not in favor of what I will characterize as a “three ring binder” that is three inches thick that I would have to go through, I don’t like that but I will do it if I feel that the issues are important enough.

FJC: If somebody were going to submit a memorandum to you, what would you like to see in it?

Judge Barrett: I don’t need a lot of string cites, take your best case and cite it. I guess I could point to a colleague of yours and mine, that being Tony Eyre, he is one of the most efficient writers I have ever worked with, he could give you a memo that some would take twenty or thirty pages and do it in ten. I learned from him, I suppose, a lot in being clear and concise in my writing and that is what I try to do and I hope most lawyers try. I think that there is a tendency to not quite be sure that you are making your point and then you reiterate it and state it over and over again in various different ways and I don’t think that is very helpful.

FJC: That is also done in argument to the court and to the jury. Jurors often remark to judges that they don’t need to be told the same thing over and over again by the lawyers.

Judge Barrett: Absolutely true.

FJC: What is effective oral argument on motions?

Judge Barrett: If I have read the memo, you don’t need to rehash it. I think that is kind of the thrust that you are probably getting from most of the judges. If you have a significant point that you want to make with me, make your point, and I am more than willing to hear it and I am more than willing to give lawyers time to develop it but I don’t need to be told something that I have read in a memo. And, I truly try to read, I don’t try, I do, so far I have done it.

FJC: In your civil cases did you typically have a final pretrial conference?

Judge Barrett: I did. The thing that I probably did not do, and it was because I had not really developed the skill, was at the final pretrial trying to get people to resolve the case, to settle the case. I took the position at a pretrial it was up to the lawyers to control what they were going to do and if they could not settle, why should I try to force them to settle at the final pretrial. Now, I have read something about the mediation program, I may require cases to mediate before they come to me and then ultimately go to trial.

Because I have found in some instances that at the very last minute at the courthouse steps people would settle and cases would settle. I came from the school of Carmen Kipp, I guess I need to say, where we don’t settle cases on the courtroom steps, we settle them long before we get prepared for and before we go to trial. That is kind of my view, but it happens, and I recognize that even during a trail, a case can settle so I am not really not hard about that but I would prefer that all settlement negotiations occur long before a pretrial settlement. As I think about it, I would probably work a little harder at trying to get people to settle at a pretrial conference but I am not going to tell lawyers what to do.

FJC: There is some value, I found, in judges leaning on the parties and the lawyers a little bit. Often a lawyer, as you know, can’t really effectively do that with his client and the client will say “you are not aggressive enough.” If a judge as independent third-party in a position of authority tells a client “well look, I have seen this kind of thing happen” it might be very effective.

Judge Barrett: And I recognize that and because of that I would probably take a more active role.

FJC: How do you conduct your voir dire of jury panels?

Judge Barrett: I am kind of the middle, I think. I do the initial voir dire, ask the basic questions. There are some instances, even in a criminal trial, where I will allow lawyers to ask questions but I do not let lawyers conduct the voir dire. I am willing to allow lawyers to ask some questions. I suppose my fear is, as is the fear of any judge, and that is, a lawyer may try to try his or her case during voir dire and I think that is improper. I have found that in most instances, lawyers are very good about keeping the questions narrow and not trying to suggestively ask questions that will give them a response to where they may figure that they are getting some kind of favorable response.

FJC: Yes, the theory is that you have to gain "commitments" from potential jurors in voir dire. I have seen that happen in non-Utah courts and I think the juries were somewhat rather offended by it. The judges here who some judges have told me that the lawyers have declined the opportunity to conduct voir dire.

Judge Barrett: That happens sometimes, it does.

FJC: But, the judges that allows it, for example, Judge Henriod, give advice to the lawyers saying “if you try to sell your case, I will cut you off and that will not start you off well with the jury.”

Judge Barrett: I have done that where I have said keep your questions narrow, don’t get too carried away with it and if you do I will cut you off. I do say that. I don’t have a problem with it, I did the same thing you did in my private practice, a lot of defense work. But I wanted to ask the jury questions too so I feel that if I wanted to I know most lawyers do and I would give them the opportunity to, but I don’t let them conduct it.

FJC: The other issue that has come up is many lawyers are not as experienced in doing voir dire and you get into the problem where somebody who is going to blurt out something that could seen as tainting the panel. I don’t think a jury is going to be surprised about what anyone else says but, there are people on that panel who are just itching to say something. You get a feel for those after a while and newer lawyer may not have a feel for them and let them go on and that may cause problems.

Judge Barrett: It caused a problem for me in a civil case, it was a medical malpractice case where it was a nurse or somebody that really came down hard, and it was my fault, I let her say too much and I should have stopped her and brought her in my chambers. That was a lesson learned for me that you do have to be a little bit careful.

FJC: Have you had occasion to use questionnaires?

Judge Barrett: I have not. I am going to use one on a murder trial that I have next year so that will be my experience. Conceptually, there are some cases and think Judge Hanson felt that same way that a jury questionnaire is good and this murder case will be a good one to use it on and there might be some other criminal cases and there might be some civil cases. I would not as a practice use a questionnaire because I think it takes a lot of work to do it. My thought would be to bring the jurors in the weekend before or the week before the trial, swear them in, hand them the questionnaire, send them home, have them fill it out and bring it back and then have it ready to be passed out to the attorneys hopefully maybe the day before trial. I have not really thought through the procedure, but I would want the attorneys to get it well enough in advance, one or two days in advance, where they could read through it and be familiar with it when we go in to start picking the jurors. I think questionnaires can be a good thing, but I would not use them in all cases.

FJC: Lawyers have to fight the tendency to make them too long . If you come in with a questionnaire ten pages long you have no chance at all of it being given, at least in a typical civil case.

Judge Barrett: It ought to be. Here is the one that I received on this murder trial I was talking about and it is 18 pages long and there is no way that I would use an 18 page questionnaire.

I think that you need to narrow down, pick out the important questions that you want answered that will give you some information about the person, and then develop it from there during voir dire.

FJC: Jury instructions, you typically want those submitted at what point, the first day of trial?

Judge Barrett: No, I like to have them before hand on a lengthy trial so that can kind of put a set together. What I usually do on a civil trial is that I ask the attorneys to try to stipulate to a set that they can agree upon. If they can do that then I don’t have a problem and, they can include stocks. If they want me to use my stocks then I will want them a day or two in advance just so I can put them together. Not that is that crucial because if it is a four or five day trial there is always time to do that. So, I am not a stickler on that.

What I find, not particularly with the civil lawyers because I think they read the rules, but what I find is in the criminal area, for me, I get one set of instructions and they are unnumbered, but the problem is that if you decline to give one of their instructions, there is no way to identify it so if they want to take an exception for the failure to give it, you almost have to read the whole thing and so I have asked them and I still have not had them do it, I want a set numbered, I want a clean set and then I want a set with cites if you have special instructions that you want me to give so that there is some authority for that instruction. They had not done it for me yet.

FJC: Let’s just reiterate that. The rule talks about penciling in numbers, you can do that but it is easier now with word processors to make a separate copy but always the record needs to have a copy that is numbered, and that copy could have your citations on it.

Judge Barrett: Yes it could, because it will not be used.

FJC: And then there needs to be a copy of that to the judge and opposing counsel but also a clean copy without numbers and without citations in case that instruction is given. Then that instruction can just be put in with all the other instructions to give to the jury and doesn’t have to be retyped.

Judge Barrett: That is right. I would appreciate that. In addition during a trial an issue might come up where you need to prepare a special instruction and I have done that before and we have done it here. It is harder for us to do it because we don’t have the secretarial help and it would be nice if we had and often it easier for a lawyer to go back to his office and prepare it but you hit the nail on the head with respect to what I would like with jury instructions.

Judge Barrett: Let me add a thing on motion practice. We probably have 1,200 or 1,300 cases and so in order for some action to be taken on a file, that notice to submit is really significant because that is the only thing that will trigger the pulling of the file and the setting of the hearing if that is necessary.

FJC: How does a hearing get set? Should the attorney call the clerk?

Judge Barrett: Call my clerk. I usually try to set my own just because of the kind of calendar I have, doing strictly criminal, I set all the hearings, I try to accommodate attorneys in terms of when I set hearings on motions. Usually they are in court and it is easy to just talk to them about it and if not, I will have my clerk call. When I was doing the civil work we would call the attorneys and give them some dates and if that was acceptable then we would schedule it and we would either prepare a notice or have one of the attorneys prepare a notice on the hearing.

FJC: What is your general schedule for jury trials?

Judge Barrett: I like to start them at 9:00 a.m. If the lawyers need to see me prior to that they should come in about 8:30 a.m. Usually on the day of trial I will ask them to come in at 8:30 a.m. if there is anything we need to discuss. That depends on the kind of case it is and whether it is really necessary. I don’t like to keep juries waiting, I like to get moving as quickly as we can. In terms of time, I usually go from 9:00 a.m. to noon and then depending on the kind of time we have and how the trial is going, I will start at 1:30 p.m. or 2:00 p.m. and go to 5:00 p.m. I think after five or six hours of sitting and listening, everyone is tired. That would be my practice, I don’t go beyond 5:00 p.m. I have been thinking about some of the practices of other judges that start earlier in the morning and then stop about 2:00 in the afternoon or so which I think is a good policy because it give the attorneys time to go back to their office and prepare for the next day. I remember going to my office after 5:00 p.m., working until 8:00, 9:00 or 10:00 p.m. and it beats you into the ground.

FJC: I think it is Judge Benson who does that in Federal Court and the juries like it because they can attend to their normal lives to some extent.

Judge Barrett: I think people are more alert in the morning than they are in the afternoon. I think what I would do is I would talk to the lawyers about it, talk to the jurors about and if everybody was agreeable, I would do that.

FJC: Yes, in a civil case, at least, with experts, many of them coming in from out of town, it is something that you would probably have to get cleared at the pretrial because of scheduling issues. When I have seen it done, the lawyers love it.

Judge Barrett: I think I would prefer it as practicing lawyer if I was trying a lawsuit.

FJC: Motions in limine, I suspect your policy would be that if they are in anyway to be anticipated they should be raised and discussed sometime before the first day of trial?

Judge Barrett: Absolutely. That is one of my pet peeves, and I have had it done in criminal cases where you come in the morning of trial and they have all of these motions they want you to do and you have got a jury downstairs waiting and you don’t bring them up until 11:00 a.m. and you don’t have time to run down and say “we are sorry but you are going to have to sit tight”, I don’t think we should treat our jurors that way, it is just not right and lawyers, if they know, ought to file them prior to that time. I know that there are issues that come up during a trial. There always has been and there always will and that delays and makes jurors wait. But I can go in and talk to them and tell them what is going on and then I don’t feel so guilty about it. So, yes, motions in limine, file them before.

FJC: Any other points relevant to jury trials that you would like to make?

Judge Barrett: I think there are some issues in our courtrooms that are important. One of the problems would be with our video system. If you get too far way from the microphones you might not be making a good record for yourself. If you are one of those lawyers that like to wonder around, you have got to keep your voice up. The other thing that is important also would be the witness in the jury box. There are time when you want to bring someone down to demonstrate something on a board, when you are doing that you are not on the video and you need to keep your voice up. I don’t want some expert lecturing to my jury directly in front of them. I don’t want anybody hanging over the jury box and I think that you have heard that time and time again because they sit so low that I think that there is some inclination that it might be intimidating to them. Maybe it is, maybe it isn’t but as a practice I don’t think that lawyers ought to do that. With respect to jurors getting out of the jury box, I will tell you, the other problem we have is if you go on appeal, that transcript has to be transcribed by a court reporter and if they don’t get a good record, you have a lousy record and you are going to have a hard time on appeal. We have been told by them that it is easier for them if they can watch the witness and then take the testimony down.

FJC: Lawyers need to watch some of those tapes and see what happens when either the lawyer is away from the microphone or the witness is away from microphone. You can order that from the court in advance and get it that same day.

Judge Barrett: Let me just add one other thing, talking about getting a tape. We make three copies, I have got two more recorders. If in a trial you want me to make a copy for you, I can do that, just bring a tape and I am more than happy to do that so you don’t have to worry about buying one or whatever else. Bring one in and I will have my clerks slide it in. Or for a motion, it doesn’t matter.

FJC: Are there differences in bench trials from jury trials?

Judge Barrett: With a bench trial, I don’t know that it is any different except that I would hope that I wouldn’t get so much repetitiveness and I hope that repetitiveness kind of sinks in with all lawyers. Jurors are smart and they try real hard and they don’t like to be told time and time again the same thing. I will get on lawyers for it, I truly will. Once I have heard it a couple of times, I will stop the music and tell them to get moving. With a bench trial, I would like a trial brief before the trial so I know what it is all about.

FJC: Do you want proposed findings of fact?

Judge Barrett: No, I don’t do that. Usually, what I will do, I try to take good notes during a bench trial and then I will give the lawyers – I usually take it under advisement at the end of the trial and give the lawyers a date within about ten days that I will have some findings ready. I will have them come back and maybe this is not a good policy, I don’t know, but I have them come back, read into the record my findings and ask the prevailing attorney to prepare them. That was my practice before and I have not really thought beyond that.

In a jury trial, it is really difficult sometimes – in a bench trial I am going to get the exhibits so that is not a problem – but in a jury trial there is times when a witness is testifying and I don’t have a copy of the exhibit and I have not a clue as to what is going on. I don’t know about you, but what I use to do is prepare a little packet, not only for the jurors, but for the judge so they can go with me through those documents without just sitting there in a vacuum wondering what it is all about. I only did it a couple of times but I know Judge Cornaby let me do it on some medical malpractice I tried and it was really helpful.

FJC: Nearly every judge that we have talked to has made that comment so I reemphasize that in jury trials - of course the judge is going to get the exhibit in a bench trial - but in jury trials make the courtesy copy of the exhibits in advance for the judge and as new exhibits are introduced you have a copy for opposing counsel, a copy for yourself, the original for the witness and a courtesy copy for the court and that is all it takes so the judge can know what the witness is talking about, it is just common sense.

Judge Barrett: I think it is and it is so helpful. I know that in one medical malpractice case I had I just made a little notebook of exhibits for each of the jurors and we would be talking about it and they would just be going through it with you.

FJC: Have you seen any computer-assisted presentations in your court yet?

Judge Barrett: I have not. Overheads and obviously the big Styrofoam boards that we all prepare with documents depicting various different things. I know I have used them if I wanted to make a point with a medical entry in medical records, you have done the same thing. But no, I have not seen computer stuff.

FJC: Let’s talk about your thoughts on effective advocacy.

Judge Barrett: My thought on that is be short and concise on what you are saying and you don’t need to be repetitive. Sometimes in your summation or your closing argument, if you repeat something a couple of times, that is probably ok, but not time and time again.

I think the other thing is to be professional. I am getting the impression, I know that there has been a lot of talk about how lawyers treat each other and their attitude toward the court and I have seen, not a lot, but sometimes disrespect for the court that is shocking to me. Just in lawyers' comments and I will not tell you names, but Judge Maughan came to me the other day and said that there was an attorney in his courtroom and they were having a preliminary hearing and he bound over and the lawyer was upset about him being bound over and made some comment about justice being done and so Judge Maughan called him up to the bench and tried to talk to him about it and he got indignant and nasty and I was thinking in my wildest dreams I would never do that even if I disliked the judge I would not do that.

FJC: That is about as ignorant about as being rude to the clerks.

Judge Barrett: I am not saying that it is a prevailing thing but I think I am seeing more of it than I would have expected and maybe it is just because of my era and when I began practice and the respect we had for the bench. I know that there were judges that we did not like, but you wouldn’t criticize them openly, you might go back to your colleagues and say “boy did judge so and so really hammered me.”

FJC: There as been a trend toward that. Perhaps it is shifting back a little bit. I am thinking of David Boies, who now happens to be the hot lawyer of the day and there is a man who is a perfect gentleman in every respect. Both to opposing counsel, to the court, to witnesses and yet is an extremely effective lawyer.

Judge Barrett: And that is one example and there may be a couple of others but I think as a whole, now I am dealing with the criminal defense bar and the DA’s office and I think that they do a great job, I truly do. To be quite honest, as a whole in Utah, I think we have a great group of lawyers. There are a few and there will always will be and there certainly has been for years and years over the time that this state has been a state. I think lawyers – I don’t know what they teach at the law school, sometimes I think they hammer home this advocacy thing so much that lawyers kind of lose site of what their job is and this is to represent their client in a professional manner and in a dignified manner and I think as an officer of the court you have an obligation to conduct yourself in such a way that it not only makes our job as judges easier, but it makes the system work better and if you are fighting or making snide comments, I had a trial a couple of weeks ago where the two lawyers did not get along very well and so one lawyer would say something and the other one was grinning and cackling and stuff like that should not go on. Even if you don’t like the lawyer on the other side, I think you have to maintain some dignity in a courtroom.

FJC: Just from the utilitarian perspective a lawyer who comes across to a court as very professional, very honest, admits his weaknesses, will have a leg up over the mad dog advocate.

Judge Barrett: And I think that is absolutely true and I think that, and I know other judges think this very thing, if you got a case that is against you, admit it. If you can try to explain it way, I will listen. But don’t try to pull the wool over my eyes. Be straight ahead with me, in argument particularly. I think everybody appreciates someone that is, win at all costs, that is not the way it is done and for me, someone that does that lose credibility with me and I will not listen to them.

FJC: And credibility, once lost, is never regained.

Judge Barrett: It isn't, and it is so important as a lawyer, your word ought to be your bond. You ought not to have to, and I had a father-in-law that always said to me, “Bill, the best friend you have is that lawyer on the other side because win, lose or draw in a case that you have at that moment in time, you are going to run into that lawyer again and if you make an enemy out of that lawyer, you are going to make your life miserable and it is not worth it.” And I have always tried to practice that way and I would hope that most lawyers would. I recognize that there are some that are just so difficult that is hard not to want to retaliate, so to speak, but I think that if you go in with the view that when I say something to a lawyer they can take it to the bank, they can rely on it, I think that is crucial in the practice of law.

FJC: Thanks, judge.