Judge Stephen L. Henriod

FJC: Let’s talk about what you think makes an effective advocate. Perhaps you would like to take that in two parts, one is who is an effective advocate – motions or bench trials – and in a jury trial.

Judge Henriod: I think that the most important quality in either case is persuasiveness. I think what is persuasive to me in a motion argument or a bench trial is when there is a short simple argument with the best cases stated, I do not like repetition, I don’t much like visual aids, and I like a lawyer who has the confidence to make that best argument and then sit down. I try to always announce at the start of any kind of motion hearing whether or not I have had an opportunity to read the memoranda.

If I have read the memoranda I do not what to hear the contents orally again, maybe the most important part of it, but you would be surprised how many times I will say I have read your memoranda and the lawyer will get up and start reading the memo to me.

Sometimes I have to restate it for them very succinctly to prove to them that I am telling the truth when I say that I have read their memoranda. I can understand that, I guess that often people say that and not mean it. If I have not read it I will say so, and then somebody is going to have to get a little bit more detailed – especially if they expect a ruling from the bench which is my preference in any kind of motion practice. Even after a simple trial, I take a short recess and come back in with findings and a ruling if I can do it that way.

If you are going to do courtesy copies and that sort of thing make sure that they are in time so that they can be read. If there are no courtesy copies I am going to read the motion and the memorandum in the file before the hearing.

In front of the jury, probably the thing that I have heard most often recently from jurors that they don’t like is when they fell that counsel are insulting their intelligence.

FJC: Styles among lawyers do vary, but are there common points that all the effective ones with juries seem to have?

Judge Henriod: I worked with a well-known lawyer early in my practice and a lawyer has to fit argument to style and this lawyer fumbled, dropped papers the floor, picked them up, he was not concerned about appearing stylish or particularly polished, he always knew all of his facts and he always knew the law. But I remember, I think the first trial I ever sat through as a lawyer, sitting by this side, and two prominent defense lawyers were on the other side and they were about as polished as you can get and there was a terrific contrast, one of them absolutely amazed me, he never even looked at notes, he stood at the podium with his hands crossed behind his back and he was picture perfect and the other was the same way.

They all appealed to jurors, but the jurors recognize the style of a lawyer. If you have a really nice guy, he is not going to be able to come across like a tough guy. And, if you have somebody who is very quick and sarcastic and that kind of individual, they are not going to be effective trying to come across pleasant. You have to fit the style to the personality and you really have to not insult the jury by too many repetitions or explaining things at too low of level, they really do get it.

I think it is amazing sometimes, but jurors always question what you did not do, and they try to come up with answers for what you didn’t do and why you did not do it. I had one a while ago where I had a medical doctor on the jury panel and they were way out in left field trying to guess about certain testimony that got stopped by an objection that was sustained – they still did a good job, but you have to anticipate that they are going to do that.

Be persuasive. Talking about juries, one of my pet peeves is that I hate expert witnesses that listen the question and then turn and face the jury and lecture the jury.

FJC: Or come out of the witness box and stand up in front of an exhibit as if they were being a professor.

Judge Henriod: Exactly, I am under the impression that the jury does not like that. I think the jury likes to feel as if they are observing from the side. That there is a dialogue between the lawyers and the witnesses and that is what I prefer, I do not always remember to tell people that before hand, but I usually do after I have had a witness like that. And of course, witnesses go to seminars and I think a lot of them are taught to turn and talk to the jury. But for hell’s sake do not talk down to them if you are doing that. I prefer that the witness looks the lawyer in the eye that asked the question and answers the question.

FJC: I have always found it to be to appear calculated when the professional witness hears the question, then he turns to the jury to answer it, I think they look too smooth when they do that.

Judge Henriod: I do too.

FJC: But experts are being asked to do that by the lawyers.

Judge Henriod: “Smooth” does not fly with Utah jurors all that well. A witness with a gold chain around his neck in a silk T-shirt is not going to do as well as somebody that looks like the kind of folks you deal with every day. One lawyer had a thing about wearing white socks, whether he was wearing a navy blue suit or a gray suit or a brown suit, he wore white socks and usually wore wing tips but he usually did not tie them and I worked for him, it worked really well. Jurors also want to hear honesty, and they appreciate somebody who really knows what he or she is talking about.

FJC: Have you found more lawyers using demonstrative evidence and electronic devices to assist in argument? We are going to give a seminar on this at the annual meeting in July, and the point of the seminar is use it with caution because it can be distracting. What is your take on that sort of thing?

Judge Henriod: The first time I saw that effectively used, and I was not involved in the case, it was the Wilberg Mine case, but they had marvelous computer generated color moving pictures for the jury. I think if it is used effectively, it is a great tool but, I think when it is overused, it loses a lot of the benefit. I have seen jurors going to sleep with the courtroom lights turned down as the slide show or the Power Point went on. So I think to be effective it should be dramatic and to be dramatic it has to be used sparingly.

FJC: You don’t particularly enjoy getting blow-ups on motions arguments, you prefer to get something 8 ½ by 11 that you can look at yourself.

Judge Henriod: Yes, and that I can mark up. That is my preference. I see cross examination abused or not done properly. I have never seen anybody win a case on cross examination.

You never can turn a witness by asking the same question in eight different ways over and over and over. I have heard a lot of little nuggets on this point, one was “the best cross examination is a short cross examination” and the other is, “you go in and you mine the gold nuggets and you get out before you get hurt,” and then for those of us that go back to the ‘70s and early ‘80s, Irving Younger gave a lot lectures and he had the Ten Commandments of Cross Examination.

I hate to see it over used, my rule of thumb is that if somebody took 2 hours on direct they should not take more than 30 minutes on cross, that is not always going to be the case, but if somebody takes 2 hours on direct and you take 3 hours on cross you may have lost the jury and that is a huge mistake.

FJC: The comments that we have gotten from the other judges that we have interviewed have been very similar on cross examination, it is over used, it is unfocused and it tends to be directed towards impeachment simply because the witness can be impeached when there is no real reason to do so. Also, that there tends to be a lot of haggling over trivia that does not really matter.

Judge Henriod: I love a lawyer who has the courage to say “no questions” and sit down because what that tells me is that they lawyer thinks that testimony is pretty near worthless, it does not need to be attacked.

You mention impeachment, I seldom see depositions used correctly. I see people drag that deposition like a club. They try to start with the deposition instead of asking the question and getting an answer and if necessary going to the deposition but like some of the other stuff that we have talked about, I think is much more effective if it is saved for an important issue.

If you get somebody that does not answer each question the same way they did twelve months ago in their deposition and see that dragged out question after question after question, again it becomes pointless, it aggravates the jury and aggravates the judge. Depositions should be used sparingly and when they can be used devastatingly. I have heard that the English system works much more that way than ours do. No cross at all can be very effective.

FJC: It is also interesting that over there there is a, from what I have heard, there is a higher degree of civility, there is almost a degree of, I don’t know how to express it, respect for the system. They will use such phrases as “my brother of the bar” which to us, which seems overly formal.

Judge Henriod: The way the lawyers are set up over there in chambers you can often have counsel on opposing sides of the case that have offices side by side in the same office

FJC: Is that right?

Judge Henriod: Because they do not have contact with the clients, particularly, the solicitor prepares the case and you can pick barristers that are brother lawyers and it increases the civility in the courtroom.

Among the best lawyers in our community civility is good. The courtesies in the courtroom are huge. I think that our system has been diluted by practitioners who did not get the great advantage of being able to see and experience quality lawyers at work. You go to a jury, it the first jury trial you have ever seen and you are counsel for the plaintiff or defendant and of course you don’t know what to do.

A lot of people attack when they are in trouble. Unfortunately, what that communicates is that you are in trouble. Civility communicates that you are in control. I have not seen too much lack of civility; the last terrible example I saw was a telephone call from a deposition and I had to use some fairly strong language in a fairly loud tone of voice – both lawyers were at each other’s throats – and I made a couple of comments about lawyers being the best people in the world and how they ought to behave that way. The next time I heard the voice it was a considerably different demeanor.

FJC: You will entertain motions coming from telephone calls in depositions?

Judge Henriod: I will, I just suggest that before you do that in a deposition that you take a minute to think how you are going to appear. First, you have not been able to work it out on your own, and secondly, I would suggest that your situation be really obvious that one side is acting inappropriately. If it is a cat and dogfight, like this last one was, you both will look bad and it is probably not worth the telephone call. I hope that the new rules will stop a lot of this.

FJC: The new rules specifically provide for what objections can be made and the form they can be made in and strictly limit instructions not to answer.

Judge Henriod: I think that I have practiced during the years of the worst abuse of all and every question was preceded with an elbow to the client’s ribs and a comment that “if you know,” I am hopeful that is all gone. I am happy to entertain those kinds of telephone calls when they are necessary.

It is my goal to be accessible as possible by telephone call or in person. My clerk chooses to work in the courtroom rather than at the workstation right outside my chambers, we try to keep the door to the courtroom open whenever she is working and lawyers and parties are always welcome. You are going to take your chances if you walk in and I am not here or she is not there, but we want to be there. We also are doing the best we can to get the telephone calls answered every day, the day they are made with a response so things are current.

FJC: What are your thoughts on courtroom protocol?

Judge Henriod: I am particular about dress. I want to be able to look out of the crowded courtroom and be able to tell who the lawyers are by their dress and demeanor. I like ties with the shirt buttoned up to the shirt collar, I like jackets on the male lawyers. Women have a huge advantage, what women lawyers should wear is much harder to define than what it is for a man. I do not like to see lawyers in Levis. I like them to wear socks.

FJC: You actually get lawyers who appear in court without socks?

Judge Henriod: Yes, I could name you quite a few names. I just think that a lawyer needs to remember all the time that a lawyer is an advocate and if they happen to have a narrow-minded judge, their appearance or demeanor could have an adverse effect on their client.

I do not like to see lawyers in ponytails. I think that if you practiced in front of Willis Ritter, you learn those things automatically. If a judge gets mad at you and your client loses the case, then you have failed completely in your job as an advocate. Lawyers are strong-minded and very individualistic people, but in some areas they should conform to specific standards..

I very seldom have problems with lawyer behavior in the courtroom. I don’t need to be asked every time a lawyer wants to approach a witness if that is OK. First time is OK if I say yes that is good for the duration of the trial and if something changes I will let the lawyer know.

I do not like to hear counsel talking between themselves on the record. If you need to discuss something, maybe there needs to be a stipulation or agreement, we ought to go off the record. I definitely do not like to see counsel arguing between themselves, those arguments ought to be addressed to the bench.

Promptness is really important, I try to be on time and I want lawyers to be on time. We have got these televisions in the chambers and I can see when you walk into the courtroom. So I you walk into the courtroom I am going to be there within a minute or two unless I have got something else, like a hearing in chambers going on.

If you are not going to be on time call us. And, if you call, don’t just leave a message on the clerk’s voice mail because it might be an hour or it might be several hours before we pick that up. It is possible to get a live body, sometimes you have to work at it, but that is the best way if you cannot be there on time.

I would like to see a little barrel outside the courthouse where you deposit your cell phones before you walk in. I don’t really like seeing them used even in the corridors, although that is beyond the area of the courthouse I have the ability to control. I do not want to see a cell phone in the courtroom. I have even screamed at a member of a jury panel one day. A lawyers who yanks that damn phone out and starts talking when I am in the courtroom on or off the record, it is out of line. Worst on the golf course, second worst in a movie theater, third in a restaurant and fourth in the courthouse.

FJC: We are going to be approaching a point, unfortunately for me, because I like to use my cell phone in the corridor, like in Federal Court where they will be taken away from you at the front door.

Judge Henriod: I think that if everybody is careful, we will not have that happen in the Federal Court. I think that everybody ought to be treated like adults. I get mad when they take my pocketknife when I walk through the front door. So if people will remember – I was in arraignment court one day where we had a couple of hundred people in the courtroom and we had a phone that just went off and off and it had one of those obnoxious rings and nobody would acknowledge that it was theirs and it was sitting in somebody’s purse and I think that they might of have stepped out of the courtroom for a minute. I tell my bailiff to confiscate the phone and I will tell lawyers that I will consider whether or not to return it when it goes off in court. It is very, very irritating.

I like to see only lawyers and parties sitting in front of the bar, paralegals certainly are OK there. I don’t like to see the expert witness there. I have no problem with children in court if they are quiet. If they are not quiet, I think the first person to react should be the parent or the person who has charge of the child, it shouldn’t have to be the judge, bailiff or clerk. Kids should go out in the hall.

An exception to that is in a divorce case where custody is an issue, I don’t want to see those kids in my courtroom, I do not want them in the courthouse while their parents are fighting over their custody. I think that is in terrible taste. If they want a judge to interview children and I am very reluctant to do that, that should happen at a completely different time that the parties are in court squabbling.

FJC: Judge Lewis had a particular issue with lawyers calling children as witnesses in custody dispute cases. Do you have any take on that?

Judge Henriod: I am sure that I agree with her completely. In fact, I haven’t really been asked, but if a lawyer has called a child to testify against one of the child’s parents and in very single instance, I have said no. I find that highly offensive and I cannot imagine a circumstance where I would not say know. Divorce is destructive of a family anyway, you don’t want to pound additional nails in the coffin by children choosing sides and then publicly display that choice, it could kill the relationship with one parent forever. I think that is a terrible factor for anyone to even consider using. I don’t even want them sitting on the benches of the courtroom because they hear too much and they are to little for that sort of thing.

FJC: Ex parte contacts. Have you had any issues with that?

Judge Henriod: Not bad ones. Every once and a while, usually somebody calls and says can I come see you about something and if I take the call I say sure, bring opposing counsel. If my clerk takes the call she says the judge does not want to see you without opposition counsel. I think it is something to be avoided. In cases that are, if it is a default case, its an adoption, if it is some kind of probate case with no opposition and that is obvious, that is different then the hearing out to be on the record so everybody can see what happened anyway.

FJC: In the years past, it seemed to be, a matter of course, in TROs particularly, where would not call counsel. The rules specifically prohibits that now.

Judge Henriod: The rule says that you contact them and if they cannot come you provide an affidavit that shows how you contacted them, I see that violated all the time. We react the same way on every one of those, we say “have you contacted opposing counsel or the party if they are not represented?” and if the answer is “no” then I am not going to hear you. Sometimes they will come back and they will say “if I tell the other side what is happening, then the money is going to disappear, the car is going to disappear, they are going to do something awful” and I listen to that argument, but I still want people represented on both sides for those kinds of hearings.

FJC: Let’s talk about the scheduling and management conferences in civil cases. The new rules say that lawyers should prepare case management orders, the judge may, if requested, or on his own, have a scheduling and management conference. I have found that the scheduling and management conference is unnecessary if the lawyers are doing their job in preparing their order.

Judge Henriod: I have been pleased with that exception the way the bar has picked up with the new rules on this. I routinely get a management order, take a quick look at it, signed off on by all counsel, I sign it. They work fine, occasionally, I sign an amended scheduling order a few weeks later and I have absolutely no problem with that. Starting last Fall, in cases that were already pending, cases with some complexity, I made it a rule that the new rules apply to that case even though it was filed beforehand and those are about the only ones where I have had in-court conferences regarding scheduling, I think it all worked out very well. I really like that new rule.

FJC: In the scheduling order that counsel is preparing, do you want a place there for pretrial to be set and the trial to be set or, do you want the scheduling order to say, we will have the case certified as ready for trial and at that point the pretrial and the trial date will be set?

Judge Henriod: At the present time, that is my practice, I want at least the end of discovery in sight before people ask for a trial date. I think that is what I would probably prefer for the foreseeable future, not meaning that things couldn’t change.

I try to keep my calendar pretty short. I will to be able to give you a two or three day trial within the next 6 weeks and if it is filled up way out of advance with trial dates, it makes it a little harder to do that. Sometimes you get a case settled and somebody neglects to call the clerk and say you can clear this off your calendar and it is too close and too late to fill up the time, things like that happen.

I just prefer to have a telephone conference, have counsel say, we are about ready for trial, we don’t have much left to do, what is your schedule like, when can you book us, do we need a settlement conference with clients, is there any change that will be successful? I like to be part of that end of the case. There is not need for me to be meddling in initial disclosures and discovery process and all the rest of that as a general rule.

FJC: Mediation, there is a lot of variation among the judges as to whether or not they will require the parties to engage in mediation.

Judge Henriod: Very seldom do I require it. But I often encourage mediation pretty strongly. I find a lot of times though that a plaintiff or defendant may be reluctant when the plaintiff or defendant’s counsel thinks it is a good idea, and in those cases I order it. But I always suggest it first. I will say, counsel will it be helpful if I order mediation? And force your clients to the table. If lawyers say no, I do not order it. I don’t want to waste peoples time.

My experience with mediation has been good, I have done some mediation within the court program where judges sit in and do them, I have done some informal ones as the last minute, I have not had bad experiences with it. But, I don’t want to waste people’s time, I don’t want to waste their money going through useless exercises. Lawyers can tell me in advance that there is no way this will mediate and then I will not require mediation.

FJC: Let me just pick up on a couple of points here on motions practice that I may not have covered. Do your routinely schedule oral argument if requested?

Judge Henriod: I always schedule oral argument if it is requested on a dispositive motion, as the rule requires. The way my clerk and I do it, we wait for the notice to submit to come in with the request for oral argument, she refers it to me, then I look at it, and then I send it back to her and it says schedule 10 minute hearing, schedule 30 minute hearing, schedule an hour hearing or no oral argument.

I don’t want to do it if it is not going to be valuable to me. I think that I am the one has to be persuaded. I probably deny it a significant percentage of the time, when it is asked for in a motion to compel or things like that, and I always set the time limits and we try to always put the time limits on the notice of the hearing and I would appreciate it if lawyers would read the time limits. I set a case for 30 minutes that other day, 30 minutes probably was not long enough, but after 30 minutes and the first lawyer had not gone beyond his initial remarks, I said “my next hearing is scheduled to start 2 minutes ago” and I looked in the file to make sure the notice said 30 minutes. If 30 minutes had been inappropriate and those lawyers knew that it was inappropriate, they should have just called and we would have made an appropriate period of time available.

FJC: Let’s talk about your pretrial conferences. What is done at the pretrial conference in your court?

Judge Henriod: Most of them are very quick. It is an exchange of witnesses and exhibits lists, discovery cutoffs, motion cutoffs, whether or not mediation would be appropriate or an in court settlement conference with me and then I usually ask one of the attorneys, usually the plaintiff’s attorney, to prepare an order. The usually do not last more than 5 minutes, 15 at the longest. I don’t want to use that telephone time to schmooze or to try to twist arms at that point. A lot of times I will start out by saying, haven’t you guys got your case settled yet? That is just a stab in the hope that somebody will say yes, maybe, we are close.

FJC: Exhibits in your court are marked in what fashion?

Judge Henriod: Actually we are pretty flexible. What I prefer is pre-marked exhibits and if somebody comes in using numbers and somebody else is using letters, as long as it is going to be clear in the transcript, if there is going to be a transcript, I don’t care. I like to have the exhibits pre-marked and a list given to my clerks along with the exhibits. Not only with a list of the numbers but with some explanation of the document or the object to save the clerk from having to figure it out, sometimes from a distance and not really understanding what the witnesses is looking at as you are describing your exhibit. I like a list and I like them pre-marked and I don’t care if the numbers come in order or don’t come in order, I don’t care if exhibits 1 through 10 and then there are objections sustained to 11 through 20 and so we pickup at 21, I know that some judges get hung up about that, but I don’t care.

FJC: What is different about your bench trial practice?

Judge Henriod: They are more informal than jury practices, particularly on the rules of evidence. Otherwise, not a whole lot of difference. They certainly move faster.

FJC: We have talked about discovery practices already, but I wanted to give you a few minutes here to give any other suggestions or thoughts you might have for practice in your court.

Judge Henriod: Some of my ideas about discovery abuse came out already. I think there are times when Rule 37 sanctions are absolutely appropriate including, if necessary, striking an answer or a complaint. I do that. I think there should be sanctions for discovery abuses. I don’t think there should be abuses, I think counsel know how the rules work and there should not be a problem and if a problem comes to me and it is real problem, I am going to treat it seriously.

I have had in the last little while, I entered an order precluding a party in a divorce case from calling any witnesses other than herself because of her frustration of the discovery process along the way and in other cases I have entered defaults as a result of it. In other cases I have used monetary sanctions when the abuse occurred early enough in the process that obviously discovery had to go on. I think that I am flexible, but I think condoning it or failing to sanction is condoning it.

I agree with Judge Lewis on courtesy copies. I would like counsel to get together and get me one copy in chronological order, unless it is a simple case and then I am just going to read the stuff in the file. I try to always read the complaint and answer before I look at the courtesy copies any way, so I have the big picture and so I have got the file in front of me.

I hate getting orders submitted before the time to object has expired. I think that is really important. I think it is embarrassing when I sign an order because I am assuming that is the case and it is not and then I have a valid objection and then we end up having to have a hearing or do some backtracking. Same thing with notices to submit, please do not send in a notice to submit until the other side has had a chance to respond or to reply and everything is ready.

I hate faxes. I occasionally will get one and I always say make sure there is an original following a fax, I am not on board with these electronic signatures yet, and maybe before long – I understand that if you are in Ogden or in Provo it can be difficult coming and going, but you know that when you take the case. I do not like faxes.

My in court clerk is named Nat, her number is 238-7031, my front office clerk is named Dana, her number is 238-7022. Something that I say when I get to talk to new lawyers in one of those seminars is be nice to my clerks because if you think that you can be rude to them and I won’t hear about, you are wrong, and I have to defend my clerks, if I hear that a lawyer has been less than courteous.