Judge Dennis M. Fuchs

FJC: Judge, you are exclusively now on the criminal calendar, is that right?

Judge Fuchs: That is correct.

FJC: So, you don’t have any occasion to deal with the new civil rules on scheduling conferences and things like that?

Judge Fuchs: No.

FJC: But of course, you have motions in criminal practice and I suppose the motions practice will be very similar to that in civil practice. In what format do you want your memoranda? Do you want courtesy copies?

Judge Fuchs: I want the lawyers to follow the rules in regards to the format of the memoranda. I don’t mind overlength memoranda as long as they ask for permission first and as long as they don’t get carried away with them. Civil judges are backed up, criminal judges are backed up, we only have so much time to read these, so I would ask that they be concise and to the point. Give me the case law that is pertinent, give me case law that is against them, include it all in the memorandum and do it in as a concise manner as possible.

In regards to courtesy copies, I don’t need courtesy copies as long as memoranda are filed on time and as long as attorneys realize it takes a little bit time for the memorandum to get from downstairs up to the file. So, if they are doing it five days before the motion is going to be heard, then they probably need to hand deliver me a courtesy copy. If they are filing it in a timely fashion and they are giving it a couple of weeks, then they do not to waste the paper or the time to give me a courtesy copy. I will read the copy that is in the file.

FJC: What about copies of cases?

Judge Fuchs: Actually, if there are pertinent cases that are right on point I prefer to have a copy of the case attached to the memoranda so I don’t have to go look it up. I will at least read the West Law notes or the head notes and then go to the cases and read the pertinent parts. And, actually, if they want to underline the pertinent parts in regards to the case and cite me just to those pages I would appreciate that. They do not need to attach all cases but anything that is directly on point I would appreciate having.

FJC: Probably should be attached to a courtesy copy, however because whatever is attached to a memorandum is going to have to be photocopied and microfilmed or whatever they do now.

Judge Fuchs: Sure, so if they are going to attached cases then they probably should provide a courtesy copy to me.

FJC: Hearings on motions, I am guessing in your criminal calendar you probably have a motions day?

Judge Fuchs: We have a law and motions date where we hear short motions and then give special settings to anything that is going to take more than ten or fifteen minutes.

FJC: And do they all get hearings if they file a motion?

Judge Fuchs: In criminal, pretty much every matter gets a hearing if a motion is filed.

FJC: Lets talk about effective motion oral argument: what works and what does not?

Judge Fuchs: Ok, you need to first understand that I have read every memorandum that has been submitted. I have read at least the header, notes to the cases, if not the cases themselves that they have submitted to me, and all of their memorandum, so there is not need for them to come into court and reargue their memorandum. They should just pick the points that they want to emphasize and understand that I have read the memorandum. In fact, there is a 99% chance that I have read it the night before so that I will remember what I have read and other matters don’t conflict with my memory. So to really be directly to the point and argue the points that are in their favor and the points that they want to emphasize and to also distinguish anything that goes against them. In regards to arguing a whole memorandum again, they don’t have to. In fact, it is a waste of my time, it is annoying and it is a waste of their time.

FJC: You have mentioned it twice, and I want to reiterate something for people who might read this later on. I think it is a very useful and also required under the rules of ethics to address contrary authority. Some lawyers out there will just try and ignore it as if you are not going to find out about or the other side is not going to find out about it. That may happen, but usually it doesn’t and I think that lawyer thereby diminishes himself or herself in the credibility race.

Judge Fuchs: That is true. There is nothing more annoying, there is nothing that makes a lawyer lose credibility faster then them not pointing out cases or scenarios that go against their argument, not to try to distinguish those. Then, later, after the ruling was made, even if the other side had not found them, finding out that there are cases that are directly on point that do not support their argument. There is nothing more annoying than being reversed by the appellate court based on a case that should have been provided to you. The appellate courts make it sound like I should have had it and it was available to the attorneys and they did not provide it to you. I am not going to trust an attorney after that.

FJC: Lawyers should be aware that this is not like the federal court where there are two full time staffers doing research for each judge. Here the judges are very reliant on what the attorneys can provide them and simply don’t have the time with 1,200 to 1,500 cases to do their research except in unusual circumstance.

Judge Fuchs: Actually on criminal calendars we are probably doing 6,000 to 7,000 cases because we do misdemeanor work also. So there is no time to do research, we have one criminal research clerk now that was just hired that is working for nine judges. So, unless it is really a major issue, she doesn’t even have time to research it for us. I personally rely heavily on the attorneys and expect them to do a good job and give me what case law there is.

FJC: New lawyers should understand that very much of what you can accomplish in court depends upon your credibility, especially in motion practice, and that is something that develops over time and is easily lost. We are paid to be tenacious but tenacity has its limit and candor goes a long way.

Judge Fuchs: Yes, and it is amazing, I don’t care what judges say, if a lawyer has credibility they can start with a leg up. So if they are honest and the judge knows that they are honest and he knows that they are citing the authority and they are giving an intelligent argument it makes a big difference.

FJC: And the converse is also true.

Judge Fuchs: Right.

FJC: I don’t suppose there is any mediation done in the criminal field?

Judge Fuchs: We have not been using it, no.

FJC: Your pretrial conferences, do you have those in your criminal actions?

Judge Fuchs: We do, but it is on a law and motion calendar and it is the final pretrial and it is basically done in the courtroom just to make a determination as to whether the case is still going or whether it has been resolved. Occasionally, I will have an extra attorneys' conference in criminal cases to find out what the problem is, why the case is not settling. But, in criminal cases it is pretty hard to be a real proactive judge and you don’t want to force them to settle. So, you pretty much leave it up to them. Although, I am always willing if they want a preliminary ruling, if they want to know where the court would go in regards to an evidentiary issue informally as long as both parties are present I will give them an informal ruling.

FJC: How do you conduct your voir dire?

Judge Fuchs: I am one of those in the middle, between the old school and the new school; I ask the general questions, the standard questions, and then I have been allowing the attorneys to do their own voir dire in regards to special issues with the understanding that they are not to ask an open ended question, their questions are to be yes or no questions and then the jurors can be further examined in chambers or outside the presence of the other jurors. It still scares me a little bit that they are going to ask a question that a juror is just going to blurt out some answer and we are going to end up disqualifying an entire panel. So I caution the jurors and the attorneys to please just ask a question that can be answered yes or no and if it needs further exploration we will do it later.

FJC: It is an interesting issue because we have got a whole range of how voir dire is done from the strictly "federal" fashion, to the wide open what I call "California" practice. But that is a concern because judges generally have a lot more experience at doing voir dire than the lawyers do, but the lawyers know the case a whole lot better than the judges do, but there are people who are just waiting for the chance to blurt something out and if you are concerned about tainting a panel, you have to be aware of those people.

Judge Fuchs: I have been doing this for about a year now and I have not seen any abuses by lawyers that are practicing criminal law in regard to voir dire. I have not seen a California type thing where we are going for three hours on voir dire. They have been very concise, their questions have been short and limited. I have not had any abuses. If I get abuse, I might change my mind.

FJC: I don’t know anybody who has had problems yet among the judges who do allow it. I have done it three times, and was given a time limit by the court so the whole issue of doing it for hours is out of question. I can think of Judge Henriod, for example, will tell you “look, the purpose is to find out information, not to try to ingratiate your client, yourself or your case with the jury and if I think you are doing that I am going to cut you off in front of the jury and that is going to be very embarrassing.” And that seems to squelch the possible overreaching.

Judge Fuchs: Yes, and I have not had any problems. I also experiment by allowing jurors to ask questions during my trials. Their questions have to be in writing and they have to be submitted to me and then I will make an initial determination as to whether it is appropriate to ask the question or not and have the attorneys come up and see the question at a bench conference and have them make any objections they have. I then give the attorneys an opportunity to follow up on any questions that a juror might have asked a witness.

FJC: I have worked with that practice and think it can work pretty well although we did not answer a third of their questions because they were things like “does the defendant have any insurance?” In a criminal case it might be “what is this guy's record?”

Judge Fuchs: Right, so you screen those out and I tell my jurors right up front that they can submit their questions and if it is not asked I can’t give them a reason during the trial. At the end of the trial if they want to know why I did not ask a question, I will be happy to tell them, but they need to understand that for some reason it was an inappropriate question during the trial.

FJC: I heard one judge, this was just last week, and this was a brand new on one me, but he was asking the attorneys if they would mind if he asked the jurors at the close of the case to suggest areas that the attorneys should address in closing argument.

Judge Fuchs: I have never done that.

FJC: I am not sure I like that idea because suppose you don’t want to address that area.

Judge Fuchs: Then the jurors wonder why the attorney does not want to talk about it. I have never done that.

FJC: There seem to be lots of questions the first day and towards the end hardly any.

Judge Fuchs: That has been pretty much my experience, in fact, in most of the criminal cases that I have done, you end up with a single juror who asks the questions. I don’t think we give jurors enough credit.

FJC: Any comments on lawyers' arguments to jurors?

Judge Fuchs: I mean the same thing applies as in motion practice arguing it before the judge: don’t tell me eight times, I understand the first time I was told, I may not agree with you, but I understand what you are saying. It does not help to continue to argue it. I think our jurors have become a lot more intelligent over the years. I think they do a much better job than I remember when I first started practicing as a district attorney almost twenty years ago.

FJC: The younger ones are a lot less intimidated and seem to want to be more involved with the case. I finished a trial recently, it was about a month ago over in federal court and juror questions were not solicited but we still had questions anyway.

Judge Fuchs: I think that we as lawyers do not give jurors enough credit.

FJC: Have you had occasion to use jury questionnaires?

Judge Fuchs: You know, I have not had an occasion to use a questionnaire. However, I am not averse to using a questionnaire. I think on a serious criminal case yes, I would consider one. Although again, I would worry about the length and want it to be reasonable in length. I would also probably want those attorneys to agree on the questions, to stipulate to the questions that would be submitted to the jurors.

FJC: In terms of examination of witnesses, are there any general comments that you would like to make as to what might work and what does not work? What is effective and what is not effective?

Judge Fuchs: Well, I think it is real important to treat any witness with respect and I understand that, especially in criminal cases, they are either a victim or a witness of an alleged criminal action. I think the things that would annoy me the most that I would stop as judge are (1) arguing with a witness, and (2) and antagonizing a witness.

Even if a witness is adverse to your position that is still no reason to treat him disrespectfully and I think it effects the jury. I think the jury notices when an attorney is treating a witness with a lack of respect. It is one thing to try and trip them up or disagree with their position, question them to try to impeach them but when you get into an argument or you start treating them with total lack of respect you can see it on the jurors’ faces they just kind of turn away from it. So, my initial advice is to treat them with respect, talk calmly, don’t argue with them, be directly to the point. If you are doing cross-examination, do not repeat direct examination over and over again, that is the most ineffective means of cross-examination that I have ever seen, all it does is tell the story twice to the jury. Be careful sometimes about what you claim that they have testified to in direct examination, I think jurors catch it and are aware of it and a lot of times I have seen defense attorneys misrepresent what was said in the direct examination and then question the witness about it and the witness says “no I did not say that” and they did not. I think it is important to be correct in your examination.

FJC: Several judges have made the comments that they don’t think the overly aggressive approach with every witness in general in court is very effective and it diminished credibility with the jury.

Judge Fuchs: Yes, and think that is what I meant about the argument and raising your voice. I think the jury turns away from that. I think they shut out what is going on when an attorney acts like that with a witness, especially the alleged victim in the criminal case. What is the sense of attacking them personally and having them break down on the stand. I don’t think it helps your case.

FJC: No, it is not smart thing to do to treat all witnesses as subjects of attack. I have found that it should be reserved for vary few witnesses whom the jury gives you permission to go after. Let’s talk about effective closing arguments or opening remarks to the jury. What works and what does not work?

Judge Fuchs: Well, again, I think that in criminal law you opening statement needs to be direct, short, you need to tell them what you are going to present. Obviously do not state more in your opening statement that you are going to be able to present during the course of the trial and then in closing, again, I think it is important to touch the highlights of testimony. Maybe skim across most of it and make sure that you argue your points and your theme of the case. Sometimes when I do go in and speak to jurors afterward, I find out that they wonder why the attorney did not argue a certain point. I guess it is hard because sometimes they say, “why do you keep pounding on that point” and the other times it is “why didn’t they argue this.” I think you ought to touch all points of your case but only argue in detail and emphatically those points that you need to highlight to the jurors.

FJC: That is probably the hardest thing to do for most lawyers is to have the, you might call it moral courage, to leave out because if you focus it on theme and you focus just on the important stuff, invariably there will be somebody later on who says “well shy didn’t you argue this? We want to hear about this” and then you think “well maybe I should go back to talking about everything in every way.”

Judge Fuchs: It becomes hard and I don’t know how other than to say “talk calmly to the jury, talk intelligently to the jury, don’t talk down to them, don’t hover over them” and I know that other judges have made that comment because of the way our jury boxes are built. Give them room, give them space and argue your points and don’t be too repetitive. Argue it and move on.

FJC: Have you seen much use of computer assisted presentations at all?

Judge Fuchs: No, I have not. I have with some experts in regard to DNA. That has been the only cases where I have seen it used so far.

FJC: Is civility ever a problem?

Judge Fuchs: Yes, I think it is. I think that there are some lawyers that get so wrapped up in their case that they loose objectivity in the course of the trial. They argue with me as the judge, they argue with opposing counsel and I think that it is real important to maintain civility and to understand that we are in a courtroom, it is a court of law and there is a certain decorum that needs to be followed and that it does not help anybody if you start arguing with each other or with the judge. When I make a ruling, I make a ruling. It may not be right but the ruling has been made, you make your record and it is time to move on. There is no sense arguing it any further.

FJC: We all learned in Little League that you do not argue with the umpire.

Judge Fuchs: And don’t argue with each other. The idea of the trial is, as far as I am concerned, in criminal trials present the truth or the facts to the jury, let the jury decide. It is not a battlefield. And ethics say that we are not suppose to take it personally, I have practiced long enough to know that you do take it personally when you are in a court of law but you also have to remember that both sides are trying to do the best they can for their client. Sometimes how you present yourself in court also has a bearing on how people fell about your client.

FJC: Several judges have told me and I have encountered it in my own experiences that jurors like to see lawyers act like officers of the court. We may think that they expect to see the yahoos off of TV but they like the formality, they like to be treated with respect, they like to see everyone in the process treated with respect and thy like to see it as a special event and not a street brawl.

Judge Fuchs: And I think that is true. And, I think in turns them off. And, I think you do your client more harm than good by not acting as an officer of court. I think jurors get turned off and I think they do hold it against clients when that happens. In regards to dress, I am not the most formal judge in the world myself when it comes to dress but I expect people to come in coats and ties and be clean and presentable in a courtroom.

FJC: It all comes back to being an officer of the court. In that regard, have you had any problems with ex parte contacts?

Judge Fuchs: I don’t have many problems with ex parte contact. I think most lawyers are pretty careful about that in this day and age and as judges I think we have become a lot more careful. I preside over a drug court so I have a tendency to have some ex parte context. It is a specialized court with a different set of rules. But, on my regular cases very few attorneys approach me and if it is an ex parte contact it is usually done with “I have already talked to the other side, they are aware of this issue and they have said it is ok for me to approach you on this single issue.” Even then you feel uncomfortable but, I will do it. With regard to contact from lawyers after the case or procedural questions before the case, my feeling is that I have an open door and I am more than willing to talk to anybody about anything.

FJC: Your clerk is?

Judge Fuchs: Wendy is my in-court clerk.

Judge Fuchs: I would like to one thing, treat my clerks with respect. Nothing is more annoying than having my clerk come in here and telling me that somebody was on the phone with them acting like an ass or was just totally disrespectful to them. My clerk knows what I am going to do as well as I know what I am going to do. A lawyer should learn to take the clerk’s word when they say, the judge will not review this or no the judge wants it set here or it needs to be set.

They should understand that the clerk is pretty much relaying what the judge wants and there is nothing more annoying than my clerks telling me that the person they just hung up with was obnoxious to them or rude to them or telling them they did not know what they were saying or doing and they want to speak directly to the judge. Every time I speak to them they get the same answer out of me they got out of my clerk. Lawyers should realize that their best friend in the court building is the judge’s clerk. Lawyers should be treating the judge’s clerk better than they treat the judge if they were smart.

They should understand that she speaks for me at all time, that there is no reason getting mad at them, if there is some problem talk to me directly, do not get mad at my clerk. I have the nicest clerk in the world, she is the most helpful person in the world if somebody just asks the question.