Bench Book
Judge Fred D. Howard
RESPONSE TO QUESTIONNAIREFourth District Court
Thoughts on Courtroom Protocol:
There is an etiquette for the courtroom. Lawyers are professionals who work in a formal setting where their every word and act is recorded and where they present themselves as a voice for others; as such their conduct should be courteous and dignified.
Courtroom dress for lawyers is “Sunday best,” meaning coats and ties for men and comparable professional attire for women. The parties and witnesses should also be encouraged to wear their best at court to match the dignified atmosphere and support issues of credibility for their cause. As for such dress, loud colors, unusual ties, and untrimmed hair, while they may make a statement about you, are generally disfavored by juries.
Persuasive, productive lawyering requires that lawyers appear on time and are prepared. One should never be late, and the best way to avoid being late is to arrive ten minutes early.
Though the courtroom is a dignified setting, lawyers should be permitted some flexibility and latitude in presenting their case. They should generally use the lectern, but may move about the courtroom and approach witnesses and the court without need to ask for permission as long as they are respectful of the parties, the court and witnesses. The lectern may be faced towards the jury during opening statement and closing summation, or dispensed with so long as the lawyer does not crowd the jury box.
Things Lawyers Do That Are Particularly Helpful:
Be punctual and prepared.
Be candid and direct about your position.
Please provided courtesy copies as required by Rule 4-501(3)(e). They are helpful to highlight important points and to mark questions and notes.
Lawyers should communicate with the court by motion and not by personal correspondence. In the event of an emergency, telephone calls to the court should include opposing counsel to avoid ex parte contact with the court.
Where possible, please file early proposed voir dire, jury instructions, special verdict and trial briefs with the court. They are reviewed by the court and copied for jury notebook binders in preparation of the scheduled jury trial.
Things Lawyers Do That Are Not Helpful:
Lawyers are often late or fail to appear because they fail to provide adequate time for travel or neglect to schedule hearings. The result is frustration to the parties and the court.
Ex parte communications with the court are inappropriate. When attempted, the court will inquire as to the lawyer’s efforts to include opposing counsel, will attempt to include opposing counsel, will make a record, and unless allowed by the rules, will refuse the ex parte communication.
Lawyers routinely fail to prepare courtesy copies of exhibits. When presenting exhibits, they should always first be marked, identified and shared with counsel. A courtesy copy should be provided for the court. Look at the exhibit. Will the court be able to follow the examination without a courtesy copy?
When briefing motions, be thorough. Submitting new case authority to the court during argument may not be accepted since it frustrates the briefing process.
It is unhelpful and unprofessional when lawyers lose their civility and engage in personal, acrimonious attacks. This diverts the proceeding from the legal issues before the court. Other unprofessional approaches include lawyer remarks or gestures and displays of shock, surprise, or dismay presumably for the client’s benefit. Such displays gain, if anything, only momentary benefit from the client at the expense of diminished respect from the court. Also, when lawyers misrepresent their adversary’s actions and engage in unprofessional conduct, they lose their credibility with the court, often never to be recovered.
What Lawyers Should Know About Motion Practice in My Court:
Attorneys often request oral argument with the filing of their initial motion and seek an immediate setting of the hearing for oral argument. However, they will sometimes then delay by stipulation the filing of the Opposing Memorandum and final Reply, leaving the court without adequate time for a considered review of the motion before argument. Consequently, the clerks of the court are directed to submit the file to the court with all motion pleadings upon the filing of the “Notice to Submit” following the filing of the final Reply. I will then read and outline the submitted points and authorities and affidavits, and based on such submissions, formulate a decision, and in some cases, prepare a proposed ruling. The clerk is then directed to set the case for the earliest court date for argument where the decision will be tested and weighed in light of counsel’s argument.
With this procedure in mind, arguments should not recite entire submissions. Since defining discussion will be held on pivotal points in argument, it is helpful if counsel is prepared with a brief, to-the-point argument, concedes obvious weaknesses, and answers questions forthrightly and directly.
My Impression of an Effective Advocate on Motion Practice Is One Who:
As stated, please submit courtesy copies. The copies are helpful for highlighting, and for making margin notes and questions for argument.
I recognize that very often much time and effort is invested in a motion. As such, I will read and outline the submitted motion memoranda and affidavits in their entirety and will check for disputed facts. I will then discuss the case with my law clerk and sometimes direct that he or she prepare a draft ruling. Consequently, argument of the motion requires only a brief reference to the underlying facts. A persuasive argument generally need only include a succinct, brief reference to the facts, with a logical, clear statement of what legal authority governs the case. The moving party should be able to state in simple terms that the relief sought should be granted “because” of the supporting legal authority given such facts. Likewise, the opposing party may argue the relief should be denied “because” of a specific factual dispute, or by reason of the absence of a supporting fact or legal basis.
Effective advocates include those who stick to the legal arguments without denigrating their opponent. Further, direct or veiled arguments such as, “This court should stand by the rules,” “what kind of message does the court send,” “if this court does not do such and so,” attempting to intimidate the court are unavailing.
It is an honor for all of us to be part of a judicial system in which, by the Rule of Law, disputes are resolved in a civil fashion. As such, we should all be students of the law and maintain a mutual respect between the Bench and the Bar. The moving party need not genuflect with flattery for his cause but simply speak to the relief sought with dignity and respect to the court and counsel.
Very often, even the most complicated case will turn on a specific fact or law. Effective advocates will concede the weaknesses of their case and will argue the persuasive strengths of the case. If asked a specific question in argument, I appreciate the lawyer who will answer my question directly. I hate to embarrass a lawyer by stating, “I don’t think that answers my question,” and then have to restate the question.
Effective advocates include those who can accept decisions and the outcome of the motion without displays of anger or disgust. While losing is not a happy event, the experienced lawyer knows that “this is not about you or me,” this is simply how the court sees the matter.
What Lawyers Should Know About Jury Practice in My Court:
I have made some observations of jury trial practice which might be considered in an article entitled “Ten Commandments of Trial Advocacy,” Utah Trial Journal, Utah Trial Lawyers Association, Vol 25, No. 1 (Spring, 2002).
Trial setting is generally determined at the final Pre-Trial Conference after closing of the discovery and ruling on summary motions. I do not conduct Pre-Trial Conferences as a form of mediation but will review technical concerns for the upcoming trial.
Motions in limine should be presented and ruled upon on or before the final Pre-Trial Conference.
Lawyers are encouraged to utilize questionnaires and participate in the voir dire process. Generally, questionnaires are approved at the final Pre-Trial Conference and submitted to prospective jurors on the morning of the first day of trial. The court will conduct general voir dire in the courtroom with in camera follow-up questions to individual jurors regarding their answers. The court encourages counsel’s participation excepting attempts to argue the case, gain commitments, or ingratiate themselves with the panel.
Lawyers should pre-mark and exchange all exhibits. Remember that litigants “move” for relief, but exhibits are “offered” after laying proper foundation.
During examination of witnesses, when making an objection, lawyers should refrain from making “speaking objections,” and simply state the name or rule characterizing the type of objection. If I do not understand the nature of the objection, I will then ask for a clarification. If the court has erred, lawyers should request a bench or chambers conference.
Be sure you are familiar with the rules for use of depositions in trial including the necessity of posing proper questions to the witness preliminary to the use of the deposition.
Lawyers of long experience know that we are all more transparent to jurors than perhaps we might think. Lawyers should maintain the highest level of professionalism during the trial proceeding. The practice of law is a long-term venture in which lawyers should protect their reputation both before their client, opposing counsel, and the court. Dirtytricks, unfair play, deceit, and the like will make the lawyer’s opposing counsel a perpetual enemy, enlist distrust from all of his colleagues, and more often than not, be noticed by the verdict-finding jurors observing such displays. Further, a lawyer’s unprofessional conduct is not protected by the Rules of Professional Conduct or the grapevine in either the Bar or the Bench.
Currently it is the court’s practice to encourage jury involvement. The court will provide the jury with a courtesy looseleaf binder which includes a copy of the jury instructions and materials for note taking. Stock jury instructions include those of the simplified language form. Also, jurors are allowed to ask questions of witnesses at the close of examination by submitting a written question which is reviewed and approved by the court and counsel.
What Lawyers Should Know About Bench Trial Practice in My Court:
The same level of professionalism of a jury trial should be presented in a bench trial. The rules are not relaxed with respect to the rules of evidence and procedure and lawyers should be prepared to present the case in an organized, coherent form consistent with a clearly stated legal theory. When lawyers fail to do this and the case is factually or legally complex, then the court is simply obliged to require that counsel prepare Proposed Findings of Fact and Conclusions of Law to organize the trial evidence and applicable law. Opening statements and closing summation should not be waived since they are helpful to the court to confirm, clarify and persuade the court regarding the evidence. As stated, courtesy copy exhibits are a must, particularly when they involve financial data and summaries. Charts, summaries, and prepared documentation also help to keep the evidence organized.
When requesting attorney fees, do not neglect the basis for such fees which requires that they include description of work performed, time incurred, hourly rate, and necessity of the fees. The court costs should likewise include description of the costs and their necessity.Lawyers can streamline bench trials by focusing on the real issues and making stipulations over minor matters. They should confer with each other to resolve minor conflicts, motions in limine and foundational issues prior to trial.
My Clerk Wants You to Keep These Things in Mind:
Please deliver trial exhibits early so that the clerk will have them marked for you.
For jury trials, the court law clerk will provide you with a jury list and seating chart.
Where reasonable, the court will attempt to accommodate equipment and display needs of counsel. Please advise the clerk of your particular needs.
Clerk’s Name and Telephone Number:
Court Clerks: Michael Tronier 429-1054
Sheryl Campbell 429-1009
Court Fax Number: 429-1020
Court Mailing / Street Address:
125 North 100 West
Provo, Utah 84601
Other Comments or Suggestions:
Your concerns, needs and suggestions are important to the court. Please advise us of how we may help you.