Judge Tyrone E. Medley

August 18, 2000

FJC: I would like to start off by talking in general terms about what you perceive as an effective advocate in your court. What is an effective advocate in making an argument to the court? What is an effective advocate in jury argument?

Judge Medley: I think in terms of an effective in front of the jury, some of the issues that arise I often wonder whether or not members of the Bar give jurors quite frankly enough credit for being intelligent, especially their collective memory, and that is certainly one of the complaints that I also hear when I interview jurors.

In fact, I invite every jury I have to remain after we have finished to question me about their experience and I use it as an opportunity to learn what their impressions were and how I can make their experience as a juror a lot better. Often times I hear criticisms from jurors about lawyers appearing them to demean them in ways of going over a point ten times versus two times thinking that it is not sinking in.

I think also, and this I thinks is an interesting point, in one of the cases that I tried in all of the years that I have been on the bench, I am still of the opinion that the facts and the law is far more important than anything that the lawyer can do. Don’t get me wrong, I am not suggesting that is no place for advocacy, but it has just been my experience that it is truly the facts and the law that drive success or lack thereof. In that regard, it has been my experience that jurors do prefer presentations that are brief and to the point. Lawyers who are not viewed as being obstructionist.

Objections

FJC: Are there too many objections?

Judge Medley: Yes. I think in front of a jury you really have to pick and choose when you are going to object.

FJC: New lawyers need to learn that a trial is not an evidence examination and with any potentially objectionable question you first have to decide two things: 1) Do I have an objection? and (2) Is it worth making?

Judge Medley: That “worth making” determination is very important because often, let’s face it, you can be technically correct on an objection, but yet on the other hand, it is of no significance whatsoever and you lose more, in my opinion, in the art of persuasion by making the objection as opposed to remaining silent.

FJC: By making an objection you also draw attention to the evidence, and eventually an effective opponent may figure out a way to get it in and the jury really wants to hear it by that point.

Judge Medley: I agree. But those are some of the criticisms that I hear from jurors. And another point, and this happens to tie into the concept that I have raised about my opinion of the facts and the law driving the case more than individual advocate’s ability, I think that the collective judgment of jurors, I think they are very astute at identifying form over substance.

And by that I mean, this is not a scientific poll, based on the many interviews I have had with jurors, they seem to not receive very well the lawyers who are, how can I describe it, are flashy, have a lot of flare, slick come off appearing, being slick, very smooth. I think that it can get to a point where it gets close being form over substance. I think jurors are very astute at that. I think it builds a lack of trust in the collective body of the jury if they get that impression.

Argument to the jury

FJC: The trial lawyer of a hundred years ago would harangue the jury and make a wonderful speech. That sort of approach does not work any more in jury trials now than it does in politics. In politics, we have the “sound bite” approach, we have the Ronald Reagan one-on-one approach, and I don’t think that people have the patience any longer to listen to long speeches unless the speaker is exceptionally compelling. If lawyers are taking a speechifying or debating approach to the jury, they tend to be ineffective.

Judge Medley: That would definitely be consistent with my experience. But also, it does not mean that a lawyer has to be boring in his closing argument for example either. You can use effective trial advocacy without glorifying the case and losing credibility with the jury.

FJC: I was just reading a review of jurors in Massachusetts, a huge group of jurors, and what many of them said was is that they did not think the lawyers cared enough about their cases. So, there is a fine line, I think, between righteous passion and going overboard. Jurors that I have talked to say that they appreciate professionalism and are surprised by it after being conditioned by television to expect otherwise. I don’t know if you have encountered lawyers who take the personal involvement with their case too far. I wonder if you have seen effect on that with the jurors?

Judge Medley: I definitely have, I am thinking of one case in particular which I tried within the last few months. I was watching the lawyers try the case and what was interesting was that their styles were very conflicting. One lawyer’s style was very basic, common, not flashy at all, to-the-point and the other lawyer’s style was far more eloquent, flashy, smooth, and when I spoke to the jurors afterwards, they picked up on that difference. There is a fine line, but an important line to pay to attention to.

FJC: Which did they prefer?

Judge Medley: They preferred the more common approach to the slick, flashy, more eloquent approach. You can be so eloquent that you get to a point where there is a lack of trust. They clearly did not prefer that particular approach and I think that it had an indirect effect on the case itself.

Motions Practice

FJC: What about motion practice? I would like you to take this two ways. First tell me how someone, of course the law should, and is in most cases going to decide what the decision is, but given that as the basic, how should lawyers address motion practice, and what would be an ineffective way, contrariwise, to make an argument?

Judge Medley: Well, I definitely have, I think some individual preferences in terms of motion practice, and I don’t believe that my preferences differ substantially from the other members of this court. But quite frankly, I think my preference is in terms of motion practice as follows: First of all, it is going to a unusual situation where I have not read all of the memoranda that is submitted to me prior to oral argument.

I am a judge who does prefer to have courtesy copies of memoranda, but I would prefer to have those courtesy copies not sooner than a week before the time of oral argument. The reason why I like courtesy copies is because I will mark them up in the areas that I think are the key.

FJC: Do you want copies of the significant cases?

Judge Medley: Let’s put it this way. It wouldn’t bother me not to have them, because I have access to them. To have them is just one additional convenience. But I would never make it mandatory that they be provided. I have full access to them if I want them.

Other issues relating to motion practice – because I have reviewed all of the memoranda, I am more interested quite frankly in getting to the point and getting to directly to what the issue is and getting directly to what counsel believes is the controlling authority for his or her position. That is what I am looking for more than anything else. I definitely, it is going to be a rare occasion, when I am going to need a full historical perspective of the case but that will be appropriate at times obviously.

I certainly will not need a full restatement of everything that is contained in the memoranda. And, I also like lawyers, quite frankly, to be prepared for questions. Some lawyers have a more difficult time with questions because they operate more from a prepared script, so to speak, and it is pretty obvious when that occurs. I am usually going to come to your argument with certain questions that I have and will wait to hear in your oral presentation whether or not my questions are addressed and if they are not addressed I am likely to ask those questions.

I may have a question for you before you finished your oral argument because in your presentation you may have five points and you may be on point number one and I if I have any question with point number five, I want to ask it now.

And have you address it now and address it directly as well and not indirectly. It seems to me sometimes that when I put questions to lawyers during the motion practice and I am looking for a direct answer it may very well be that the direct answer is not favorable to the lawyer’s case. So consequently I get back an indirect answer. To me that is reflective obviously of a weak case and I will usually go back counsel and put the same question to him and say well “I am not sure that I understood answer, answer this question directly.”

FJC: I think one of the things that helps an advocate, at least in my experience, is saying “you are right, if you follow this case we are dead.” Or something like that. Admitting your weakness and then being prepared to explain why the case does not apply or should not be followed.

Judge Medley: I would love it if lawyers followed that script. Because you know when they don’t and then I go back and read the case, and there is a case for example in opposite to their position and it is very clear, I mean very clear, in my opinion that lawyer loses credibility. A lawyer’s stock in trade in the community is his or her reputation. Believe me, credibility is very important for a lawyer to maintain with the court.

I am very impressed by lawyers who acknowledge what their weaknesses are in their case and are prepared with a counter argument or to even admit that possibly they should not be there. It assists the court tremendously, it maintains credibility and in some respects I think it serves the function of the lawyer’s duty as an officer of the court, even though I recognize that we have what may very well be at times the competing interest to be a zealous advocate on their client’s behalf. I have a lot of respect for lawyers who practice that way.

FJC: That is a consistent comment from the judges. That is, the respect for the advocate who does not continually dodge a direct question. "I want the question answered now, not later."

I think of myself if someone is trying to sell me something, and I want to ask them how much it costs and they would not tell me at first. And I did not listen to anything they said after my question wasn't answered. I wanted to know how much it cost. It's the same in an oral argument, I suppose.

Judge Medley: Well that raises another issue.

FJC: Juror questions?

Judge Medley: Yes, I have been, you know in terms of conducting jury trials, I consider myself to be a traditionalist and by that I mean I have been the one that has conducted voir dire and I have not had lawyers actively participating in the questioning of the jury panel. But I am not so set in my ways that I am opposed to trying to do it a different way. I have the standard fears and concerns and I don’t want to add unreasonably to the time it takes to select a jury nor do I want to be in a situation where counsel is actually trying their case in the jury selection process phase of the case. But I also do not suffer from any delusion that I am above the expert in questioning a jury panel than a counsel who know their case far better than I know their case. I am open to giving lawyers a more active role in the jury selection process. In terms of questions from jurors, because I do speak to every jury that I have, it is allowed.

FJC: Are ex parte contacts an issue?

Judge Medley: I don’t find ex parte contacts to be a problem with the exception of pro se parties where you have to be very careful. I say that because you know, the bar I think is very generally pretty responsible in that regard and when there is a problem and I bring that issue to the attention of counsel, it has always been very well received. I really don’t see that as a major problem.

Scheduling Conferences

FJC: Let’s talk about the new rules in the scheduling conferences. I would like to know how you are handling those. As you know, the rule does not require a scheduling conference, but a judge may grant one. What is your practice?

Judge Medley: I am pretty flexible in this regard. On most of the cases that I have the lawyers are simply just sending down the Case Management Order which I am accepting and signing. I would prefer most cases to be handled in that manner. But on the other hand, I think the members of the bar ought to know that even though I would prefer that they work out the necessary requirements on their own, my door is also open in assisting them to manage the case. Don’t get me wrong, I don’t want a flood of cases, but I would like the bar to know that my door is not closed in that regard.

FJC: You do not set the trial date initially, you want a scheduling order to take the case through the point of the completion of discovery, including discovery, at which point counsel should do a certification of readiness.

Judge Medley: Correct.

FJC: At which point you will hold a telephone scheduling conference.

Judge Medley: Either way, at counsel’s request. I have no strong preference one way or the other. I am more than willing to do telephone trial scheduling conferences if that is most convenient.

FJC: And then you will set a trial date, but my recollection is you also always discuss the issue of mediation.

Judge Medley: This is correct.

Mediation

FJC: And you generally even require mediation.

Judge Medley: That is correct. In almost every case I will build in a mediation requirement. But on the other hand, before I build in the mediation requirement, I do like to receive the input from counsel and get their perspective regarding whether or not they view that mediation can be effective in this particular case. I am not one who likes to just order mediation without any input from counsel. But it still results in almost every case having a medication component.

Pretrial Conferences

FJC: Let’s talk about your pretrial conference. Judges handle those in different ways. At one end of the spectrum, we have the judge who handles the pretrial conference as a settlement conference – Judge Wilkinson does that. At the other end of the spectrum are the judges who treat the pretrial conference as a trial preparation conference. What is your approach?

Judge Medley: I bet I fall in the middle. I think the reason why I fall into the middle is because I am going to work on both of those issues in a final pretrial, I call it a final pretrial and settlement conference. So I will start, the first thing we will talk about in my conference is why the case has not settled and what the potential obstacles are. My view of my own role in the settlement aspect of the case varies regarding whether or not it is a bench trial or a jury trial. If it is a jury trial, I am likely to be much more proactive and engaged in trying to get the case settled. If it is a bench trial I am going to be far less active in trying to get the case settled and will expect counsel to disclose to me various aspects possibly of other settlement negotiations they have had. We will definitely focus on the settlement aspect of the case first, and then, of course, once I have concluded that the case is not going to settle, then I move and shift to focus on trial prep.

FJC: In general, you would like the clients or persons with authority to be present?

Judge Medley: I make it mandatory that they are present. However, if those individuals, for example, are out of state I have allowed to be available by telephone.

FJC: It is often valuable for the judge in a settlement conference to take an active role. Some times it is difficult for a lawyer to say “Client, I want you to take this settlement because. . .” because Client may feel his lawyer is not aggressive enough. It can be influential if a judge sits across from that client with all the judge’s experience and all the benefits of his office and tells the client that “I have done many of these trials and there is a great risk here. You ought to consider this settlement."

Judge Medley: I agree, and I get that response from most members of the bar that they find that type of input from the judge to be very helpful.

FJC: I wish more judges would do it. I am not saying that the judge needs to browbeat the client into settlement but an influential third party can be all that's needed to break a stalemate.

Judge Medley: I agree. And members of the bar can expect me to be much more proactive in a jury trial settlement conference versus a bench trial pretrial conference.

Voir Dire

FJC: Let’s talk about your voir dire. You conduct the voir dire yourself for the most part. You will consider a request for lawyer voir dire and take it under consideration. Obviously, it is a matter for the court’s discretion, I will pass along an interesting aside, there is about five or six third district judges that allow lawyer-conducted voir dire. And the response that most of them get most of the time from the lawyers is :"No, thank you.” Which to me is shocking.

Judge Medley: From the members of the bar?

FJC: Yes, from the lawyers.

Judge Medley: That has also been my experience, because I have had lawyers in the scheduling conferences say to me “well, do you conduct the voir dire or will we do it?” And then I will in turn say “well, usually I will do it, but I am open to you doing it if you agree generally on what the scope is going to be, assure me that it is not going to take a tremendous amount of extra time” and I can tell you so far the majority of the time their response comes back “No, that is OK, you do it.”

FJC: I suppose over the years, we have never been allowed to do voir dire and people are afraid or don’t know what to do. In the cases where I have done it, I have found it to be very helpful. The judge can set out the ground rules and there are no problems.

Judge Medley: That is correct. But it has surprised me how few lawyers have asked for the opportunity to do that and still most lawyers say “no, let’s do it the old way.” But I am open minded on this because I am interested in seeing if it is more effective and provides counsel better information to make motions to challenge a panel member for cause or to exercise appropriate challenges. Tthose are very important interests to be served.

Questionnaires

FJC: In some cases the use of limited questionnaires has been very useful. But with most the judges immediately the hair on the back of their necks goes up when you mention it.

Judge Medley: I wonder why. (Laughing).

FJC: About seven or ten years ago there was a proposed questionnaire being circulated by the trial lawyers which was twenty pages long and very elaborate. There was no mechanically that could be handled without a whole lot of effort from the administration of the court system. But I have also had trials where we had questionnaires that were limited to one or two pages and very useful.

For example, there was a case where the plaintiff was from Colombia, so there was a question there that the plaintiff’s attorney wanted asking “what do you think about Hispanic people suing for damages?” I and the judge doubted that it would draw any responses, but it did. We had somebody say, “I think they shouldn't get an award because they would spend it all on drugs.” And we would never have gotten that kind of response in voir dire.

Judge Medley: Not in open court anyway.

FJC: In open court. So, my own take on this, and I am trying to sell you here, is that brief questionnaire, five, six questions can give you some critical information. Lawyers have to be able to exercise the discretion of saying no, I am not going to ask them every newspaper they have ever read and fifty-six other questions.

Because the judge is not going to give it. There is no way you can give it really. In a capital case sure, but not in the usual civil case. What we have done is to give it to the venire down in the jury room, and then copies had to be made, one for each of the lawyers and one for the Judge, and then we had fifteen minutes to go over them. It did slow things down slightly, but we got some wonderful information.

Judge Medley: I was going to say, the only time I have come close to using a questionnaire so far has been in the context of a capital case and I cannot recall, quite frankly, at this point, any instances where – and maybe there was one and the case settled – so I have never used a questionnaire in a civil case.

In fact, here is my general view, and I think my general view has application across many issues and that is this, yes, I do have my traditional ways of conducting a jury trial which are fairly standard, but on the other hand, I never want to be in a position during my career as a judge where I am so stuck in own traditional way of doing things that I cannot keep an eye open on new ways to improve the process.

And, you are right, if you say to me “questionnaire” the hair probably will stand up on the back of my neck initially, because my first thought will be “OK, what additional administrative time or resource are we going to have to employ to get this done?” I mean, if I am satisfied that this can be worked out, I am probably going to be very open to suggestions of using a questionnaire. That is really my view, although I have not used them, it does not mean that I have a closed mind as to their potential use.

FJC: Judge Peuler used one in a large malpractice case a few months ago and apparently it worked out very well. It is being done.

Judge Medley: You can see, I can see a situation, for example, where you have multiple parties and in that type of case, it probably would serve everyone very well to utilize a questionnaire and it probably would in fact save time. I am certain there are cases out there where questionnaires would work very well.

FJC: Yes, that is the other benefit of the questionnaire, not only do you tend to get more honest answers, you can do a lot of the preliminaries “what job do you have?” “Are you married?” “Where does your spouse work?” That kind of thing gets covered much more quickly.

Judge Medley: But at some point, the lawyers are obviously want to hear the individual panel members speak so that you can get a better impression of who they are versus just someone on paper.

Jury Instructions

FJC: In a civil case you want instructions submitted when?

Judge Medley: In my scheduling order, I usually set a date where I want proposed jury instructions, voir dire forms and I prefer to have a clean copy and copy with cites on them. I traditionally rely on MUJI primarily and I also usually set a time frame that they submit to me a packet of, or at least identify those instructions that they can stipulate to and those which there is a dispute on. I usually set that date somewhere about three to five days before trial on average that usually follows the final pretrial settlement conference date.

Trial Schedule

FJC: What is your usual civil trial schedule?

Judge Medley: My trial schedule generally runs Tuesday through Friday. Most of the time from 9:00 a.m. to 5:00 p.m., with a break at noon usually to 1:30 p.m., but I am more than willing to be accommodating in terms of witness or a lawyer, or you may have a situation where there is a witness on the stand or an expert who is from out of state and you are at the end of the day and you may need to give past 5:00 p.m., I don’t want to make a habit out of that. And let me tell you, it is not because of me personally, if it were up to me. I could go past 5:00 p.m. many times, it is just that I am also responsible for my staff. So, generally, it is between 9 to 5 for the most part. That is because Mondays are traditionally reserved for law and motion.

FJC: I presume that you don’t want to be met with motions in limine the first day of trial?

Judge Medley: No, that is why I almost always set a day in the scheduling order for motions in limine to be filed by.

FJC: Any other points relevant to jury trial that we have not discussed?

Judge Medley: I just had a flashback on a jury trial that was just tried recently and a question came out from the jurors and I had the lawyers in here and I thought the answer should be a simple “no.” So the lawyers came in, and I get their input and because they stipulated to it, and I did not want to deal with the potential appellate issue, I went along with their answer which was about a paragraph long that sort of said “no” but it had them also consider ten other issues.

So when I spoke to the jurors, I had to ask them “any other questions?” and they said yes we want to know who answered that question?” and I laughed and I said “why do you want to know that?” they said “because we want to know a yes or no answer to that questions.” I said “here is the way it works, I always get counsel’s input when there is questions and if we can all agree what the answer should be, I am usually going to go with that answer especially if I don’t find any problem with it. But if I had answered it only it would have been no.” And they said “that is what we wanted.” That is why I laughed.

Discovery Disputes

FJC: How do you handle it if you get a call from counsel during a deposition saying “Judge, we need your help, he is doing this or that.” It is a difficult situation for a judge to be in because you do not have all of the history. It is often an unpleasant situation with some emotions running high but on the other hand, from the bar’s prospective, it is often very necessary, at least when you are out of town. It doesn’t come up very much, but if I had to, I think the only situation would be if we were deposing an expert out of state. Most judges have said that if they are available they will entertain those, they don’t want to make a routine practice of it, but I would like to get your thoughts on that.

Judge Medley: I have to assume that as a general rule the bar is very responsible when it comes to discovery related issues, especially in depositions and the necessity of getting the judge on the phone immediately to resolve a particular issue. I have that assumption because that may happen on my caseload somewhere between one to three times a year and I may very well be being very generous in saying that it happens three times a year.

Since it is an occurrence that happens so rarely, I assume that the lawyers and the members of the bar are very responsible in handling those issues for number one. Number two, if those issues arise, and because I do thing the Bar is very responsible and very cautious in calling a judge to deal with those kinds of issues as opposed to working it out amongst themselves. I am more than willing to take the call. And I don’t feel offended or put out a lawyer who feels the necessity to call me to resolve an issue in a deposition. It just happens so rarely, I have just not had lawyers misuse that process at all. Again, I am available to deal with those kinds of issues.

FJC: Your clerks are?

Judge Medley: Daleen Garner is my in court clerk and Tina Ashley is my front office clerk.

FJC: Any other thoughts that you would like to express to the Bar?

Judge Medley: Just my thought that I guess we all have our little idiosyncrasies and I noticed that other judges have addressed this issue and that is the problem with cell phones. It is just an idiosyncrasy of mine and at this stage I have to say that I hate them. It amazes me that, I believe that there is a sign on the wall before you come into my courtroom and a sign on the door before you come into my courtroom I believe requesting that the cell phones be turned off. Counsel, parties, witnesses, apparently have a difficult time seeing those signs and turning their cell phones off. They are just an annoyance.

FJC: We are soon going to reach a point where they will take them away from us downstairs, just like in federal court.

Judge Medley: Quite frankly, I would hate to see us get that point. I mean, I have no problem with a person in possession of a cell phone in my courtroom as long as it is off. I just don’t want to have to hear it go off. Needless to say, the thought of someone thinking that they can make a telephone call in my courtroom, not too many things upset me, but because it is a little quirk that I have it would bother me. In fact, I have thought about, I have been tempted to take a box and put it upon the bench and put a label on it and just call it the cell phone deposit box and when they go off require to person to put it right there.

FJC: Other judges have threatened the same thing. Judge, thank you for time.