A View From the Bench:   Tips from a Trial Judge (and former trial lawyer) on Case Presentation

I am a circuit court judge with a general calendar (civil, family, criminal felony and misdemeanor, probate, juvenile) in a mid-sized Wisconsin county.  I've been on the bench for just over two years, but practiced as a civil trial lawyer for decades.  My view from the bench provides a different perspective.  I offer a few tips that lawyers can use to improve your presentation and make a favorable impression on the judge and/or jury.

Be aware that jurors, in particular, watch everything you do, and form impressions about you and your client when you are not "on the record."  Always keep that in mind. Be sure to remind your client that the jury is developing opinions even when he is not on the witness stand. 

Attorneys should always be respectful and courteous toward witnesses, opposing counsel, and the court.  I have seen lawyers sarcastically make arguments or personally attack opposing counsel.  These tactics do not impress jurors or the court.  You can be a strong advocate without being obnoxious.

When addressing jurors during opening statements or closing arguments, speak up, and put some inflection into your speech.  Believe what you are saying.  Also, watch the jurors.  Pay attention to their facial expressions and body language.  I have seen jurors roll their eyes or shake their head in disbelief in response to an argument.  Jurors also can yawn or give other verbal clues that you should move on or pick up the pace.  I have observed these obvious clues from jurors, and watched attorneys who were completely oblivious in response.

Jurors and judges appreciate well prepared counsel who move things along, understand the key points that need to be made, emphasize those points, and then STOP.  In cross examining a witness, it is not necessary to rehash every element of the direct examination.  Just direct the jury's attention to areas in which the witness lacks credibility or has offered inconsistent testimony.  Emphasize those facts that support your case.  If the important information is buried in a mountain of irrelevant or repetitive questioning, the jury may not notice the key points you really want to make. The best cross examination is short and sweet.  Highlight the key points.  Don't regurgitate information that hurts your case or simply doesn't matter.  By concentrating on only the critical facts, the jury is more likely to get it.  Jurors have never complained to me about an attorney who questioned witnesses in a clear, concise fashion.  They do complain about lawyers being repetitive and "boring". 

Don't object merely because you can.  A question may elicit hearsay, or may be directing the witness, but if no harm is done by the question and response, let it be.  I have seen attorneys object to a question that would elicit a response favorable to their case, but they are so concerned about the technical rules that they overlook the big picture. 

Watch your pattern of speech.  Attorneys often insert words or phrases out of nervousness or habit.  When used repetitively during a direct examination, for example, a pattern of speech can become grating, or make your position seem tentative.  Review some transcripts of deposition questioning, or portions or a trial transcript, to detect any problems you may have.  Do you begin each question with the word "And..."?  For example, "And do you remember when you wrote that memo?...."And did you follow up with a telephone call?"  Other attorneys will insert "I guess" as a nervous habit.  Actual questioning at a recent trial included the following:  "I will mark, I guess, Exhibits 1, 2, and 3.." and "I guess, one final question..."  Others will begin every question with the word "okay".  Often these problems are a product of nerves or lack of experience, and can be a temporary problem.  They sometimes become a bad habit.  If you have developed these habits, do what you can to be cognizant of your speech pattern, and do your best to make corrections.  In a trial they can distract from the substance of your case. 

Most important, just be yourself.  Don't try to be flamboyant if you are not.  Jurors and judges appreciate a professional, respectful demeanor, and attorneys who are well prepared.  Preparation is the key to success. 

Honorable Nancy Krueger

Circuit Court Branch II

Outagamie County, WI