July 2011 - An OCBA Membership Edge: A Video Preview of Your Judge
by John Hueston
A new case arrives, whether just filed or shortly before trial. No matter how well I think I know a judge, I always learn something useful when I probe for additional information. I turn to the usual sources: Daily Journal profiles, opinions issued in similar cases, experiences by colleagues at my firm and elsewhere, articles, and presentations authored by judges. I will observe a judge before and after my own hearings, and I will watch portions of another trial involving my judge if my case will be tried.
Time may not permit lengthy observation of a judge prior to my first hearing on a matter. Even then, I may not learn of a particular practice that the judge encourages or discourages. And that is when review of a ten-minute webcast hosted by the OCBA’s Mentor on Demand provides me with a practice edge as an OCBA member: I observe the demeanor of my judge online at any time of the day as the judge delivers a short tutorial.
A quick spin through a sampling of profiles already found in the Mentor on Demand library provides key practice insights. Going to trial before Judge Kazuharu Makino? You should know that he believes that “the conduct of the trial is pretty much in the attorneys’ hands. I don’t interfere a lot with what the attorneys do. . . . The attorneys have the freedom to do well; they also have the freedom to go down in flames, which attorneys have done because we don’t help them out.” And after an initial continuance, expect a very firm trial date: “Since my background is in criminal, our emphasis is on trial work, and not so much on the other aspects of case management. I operate under the theory . . . the biggest impact on how a case is going to proceed is making a trial date and holding it firm.”
In Judge Glenda Sanders’ courtroom, attorneys must narrowly frame their questions and objections: “No speaking objections . . . no editorial comments.” She provides an example: “We’ve heard a great deal of testimony about how the defendant was driving recklessly down the 73. Did you see him driving on that day? Well, the question is ‘did you see him driving on that day.’ The first part, the prefatory comment, is a mini-argument and it is objectionable. Don’t do it. I will call you on the carpet for that in front of the jury.” Judge Sanders then distinguishes “transition comments” and explains how they can be used appropriately. Judge Franz Miller often forms impressions of attorneys from their interactions with his staff, and warns that “contempt of clerk is worse than contempt of court.” And don’t always feel compelled to have the last word, since Judge Miller often affords the “probable loser” that privilege.
A number of judges offer specific motion practice and trial preparation tips. Judge Thierry Colaw addresses the topic of ex parte applications. Having polled a number of his colleagues, he instructs that the “scream of anguish” must be apparent in the opening lines of the motion. He urges attorneys to learn a judge’s “local local rules” for ex parte applications and explains how they can be acquired.
Several of our Orange County judges have prepared short presentations dedicated (partially or wholly) to trial preparation. Judge Gail Andler recommends that for civil complex cases, “go into the courtroom during a break and practice” using the evidence presentation system. Judge Stock provides one of her favorite trial preparation tips: “Read the FRE cover to cover the night before each trial. . . . It will refresh you in ways you perhaps would not have anticipated in the middle of trial.”
Take time to listen to Judge Nho Trong Nguyen as he reads from two exemplary opening statements to show how the best lawyers from the outset of the opening work to “paint a picture to invoke the imaginations of the jury.” Make the jurors “want to walk alongside you” through the evidence. Do not begin opening statement with, “what the evidence will show,” “this is my first chance to speak with you,” “opening statement is not evidence.” “These statements are valueless and they are harmful. They demean you and show that you do not know what to do.”
Mentor on Demand began as a training tool primarily for members of the OCBA Young Lawyers Division. Thanks to the leadership of co-chairs Teresa McQueen and Julie McCoy, it has blossomed into a much more expansive program. Our library currently contains profiles and tips from jurists assigned to criminal, civil, complex civil, probate, family law, and community court panels. We are now working to create video judicial profiles of every judge in Orange County on an expedited basis. Such a goal would not be possible without the selfless dedication of our judiciary to the OCBA and to mentoring our county’s attorneys.
Aside from continuing legal education, community service, networking, and discounted services provided by your OCBA membership, the OCBA continues to seek ways to provide unique practice resources for its members. Your growing library of online judicial profiles will afford you invaluable insights at every stage of your career.
John Hueston is 2011 President of the Orange County Bar Association and a partner with Irell & Manella LLP specializing in white collar criminal defense and business trials. He can be reached at email@example.com.