The full trial technique will be available to read soon in the forthcoming 43:1 issue of the American Journal of Trial Advocacy.
As my father used to say, only sometimes without irony, “be reasonable: do it my way.” Judges with extensive trial experience—and by the nature of their work, they very likely have much more trial experience than the lawyers—have ways they like to do things; these ways are, but of course, reasonable.
Trial judges have enormous discretion on how they conduct a jury trial. To be sure, they have to give jury instructions consistent with the law (at least if someone objects), afford a reasonable opportunity for cross examination, pick a jury consistent with the code of civil procedure, and so on, but the details of the trial are left to the judge. Every judge is confident that her approach is state of the art, but the truth is that there are as many different approaches as there are courtrooms. Lawyers should do everything they can to know the judge’s predilections.
The issues usually come up at the pretrial, or “trial readiness” conference. The judge may have a checklist of issues, but the list may not include all the matters which lawyers should be interested in.
To help focus those pretrial discussions and ensure everything is done to make the trial go smoothly and without delay (see Rule One below), I provide a list of issues to be addressed before the jury panel shows up in the courtroom. In most cases, only some of these will be worth much time, but you never know which ones those are in any given case. From my perspective, you will be shocked to learn, the best approach is to do things the way the judge wants. The second-best approach is to know what the judge wants, and ask her to do it differently for stated reasons, and to do this before the crisis is reached during trial.
And the secret really is to handle most issues before the jury panel arrives. If you are fortunate to have a judge assigned to the case long before the trial date, many of these issues can be handled months in advance of trial, which makes trial preparation so, so much easier. The judge’s resolution of some issues, such as the admissibility of an expert opinion, or whether some other key witness will testify, may have a profound effect on a lawyer’s trial strategy (and perhaps their settlement posture), and should be resolved as early as possible. Sometimes, an early jury instruction conference, and the judge’s decision on the applicable law, is all the parties need to settle; or it might suggest thinking about a very different set of facts to prove at trial.
If you are not the person who can make decisions, compromises, and stipulations on the issues discussed below, then you are not trial counsel. Get trial counsel to do the pretrial conference. Please.