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Voir Dire Interview

The View From the Other Side

Voir Dire, Volume 2, Number 2, Summer 1997, pp. 29, 30

Editors Note: We were curious what the other side thinks of us; that is, the courtroom personnel other than judges. We hear enough from them. But what about from the reporters, the clerks, and the bailiffs? To find out, our reporter conducted a serious of interviews in the halls and courtrooms of the Third District Court in Salt Lake City, asking whether lawyers are doing things that they shouldn’t be doing, or contrariwise, aren’t doing things they should. The comments we heard were enlightening.

Courtroom Clerks

If a case set for trial is settled, call and tell me right away so it can be taken off the calendar. Don’t leave this for the final settlement papers. There are many other people who what your spot on the trial calendar, and the sooner it is freed up, the better.

I am tired of being talked-down-to by lawyers. Just because someone has a law degree doesn’t give them the right to turn up their nose at me. I feel like some attorneys use me when it serves their purposes and could care less about me other wise. I will see them on the street and they refuse to recognize me.

When leaving a message for a clerk, always leave the case name and number, and tell me what it is you want. Don’t just leave your name and number, leaving me no clue as to what you want or any opportunity to research it before calling you back.

Don’t ask me how your case is going in trial. It puts me on the spot. Also, most of the time I am doing something else, and am not really listening to the evidence anyway.

I was a courtroom clerk for seventeen years and never felt that attorneys were not friendly. Some court personnel may get that impression because the attorneys are so very focused on the problem of the moment and lose track of the need to say hello.

I get annoyed by attorneys who just show up to see the judge without calling first to see if she’s available. Some judges don’t care about these interruptions by my judge does. They don’t need to schedule an appointment, but they should at least find out when is a good time to show up.

It amazes me how rude-and stupid some lawyers are in dealing with us. Don’t they know that we talk with the judges? A little common courtesy goes a long way with me. The bad ones are only punishing themselves and their clients.

Lawyers should learn the exhibit marking system. Each judge is different, but all of them hate time being wasted on marking exhibits incorrectly or marking them during examination of a witness. It’s easy to pre-mark exhibits before trial, and I will help you do so.

Don’t put notice of hearings in the body of an order. I may not see them, and they won’t get calendared.

Tell clients not to call me if you are their lawyer. If there’s a lawyer on the case, he or she should call the court, not the client.

I am busy too, I don’t always have time to visit or to be interrupted, and it’s not because I am anti-social or rude. There’s a lot to do and I am sorry that I can’t always just stop to chat.

Don’t try to schedule hearings before the allotted period under the rules.

I hate it when I give some lawyers a very tentative possible time to see the judge and then they treat it as if it were a guaranteed time period just for them.

Lawyers shouldn’t impeach me in front of the judge. I dislike it when they say something like, “Well, your honor, your clerk told us this or that,” and it’s not true.

Most of the lawyers I see are very professional and very courteous to me. I really haven’t had any problems, except with a few. They should know that the judge does not always want to be interrupted and is working in chambers, not just waiting for lawyers to stop by. That’s the only problem I’ve noticed.

Court Reporters

It’s amazing how some “big name” attorneys get a very poor record from the reporter because they don’t know how to speak for the record or if they do, the don’t pay attention to it. This is a real basic skill that is often overlooked.

Most attorneys need to learn to speak more slowly and distinctly, especially with the new “real-time” transcripts. There’s only once change to get it right.

I wish lawyers should slow down and not speak when the other attorney or the witness is speaking. Don’t get so excited, and focus more on speaking slowly.

Eloquence is a lost art among the trial lawyers. They used to be better and now most of them don’t speak as well. There’s a tendency to speak in street talk, and I thing juries like to see speech more formal and dressed-up in a courtroom.

Lawyers should watch someone like Dick Burbidge and notice what he does: Speaks clearly, loud, but not too loud, and always makes a nice record by not interrupting or speaking over other people.

All lawyers need to remember that “this” or “that” doesn’t work when reading a written transcript – you have to be clear and also make the witness be clear in referring to an exhibit.

It helps me to have a copy of the exhibits, particularly the ones from which there will be quoting by the lawyers or the witnesses.

Always act like a professional. I had an attorney in our court last week who chewed gum all week long. Or maybe it was a loose plate. But it sure looked terrible to everyone and we all talked about it.

Bailiffs

It drives me nuts to have attorneys and their clients who can’t be on time, especially after breaks in a trial. Don’t make the bailiff go looking for you while the judge and the jury wait.

Lawyers need to know that showing up on the morning of trial expecting to set up elaborate audio-visual equipment for the first time isn’t going to be appreciated.

Lawyers, especially in domestic cases, need to remind clients and witnesses to dress appropriately for court. Some judges will not accept inappropriate attire and it can be embarrassing for the lawyer.

Attorneys need to know what each judge allows and doesn’t allow. For example, some are very particular about approaching witnesses without permission.

Some clients need to be told not to talk in court, especially when in the audience, or to make faces at evidence they don’t like. Where do they think they are? Babies and toddlers should not be brought to court.

Turn off the cell phones before coming into the courtroom! Some judges would like to ban them entirely, like they do over in the federal court. It’s really annoying when they go off during a trial or hearing. The same goes with doctors and their beepers.

I wish lawyers wouldn’t ask me how their case is going. It’s not very professional and what am I suppose to say if they are doing poorly?

Lean to use your equipment before you try it out in court and in front of a jury. It always looks bad when an attorney is fumbling around trying to get some piece of equipment to work. Better to leave it at the office unless you really need it and know how to use it.

Summary – Some Distilled Advice

1. Above all, be considerate of the people who work in the courtroom. They are doing a job and resent being treated as underlings. Learn their names and don’t condescend. They have seen many more trials than you will ever see. It scarcely serves your client’s cause or your professional reputation to ignore or patronize the courtroom personnel.

2. If a case set for trial is settled, call and advise the clerk that day and, as always confirm it in writing.

3. A week before trial, provide the indexes to key depositions to the court reporter for inclusion into the reporter’s “dictionary.” Better still, give the reporter copies of the ASCII disks for the key depositions. Then the reporter doesn’t have to “learn” all the proper names and technical terms peculiar to your case, and you’ll get a better transcript, especially if “real-time” reporting is used for instant transcripts.

4. Give the reporter copies of the exhibits on which witnesses are expected to testify. This makes it much easier to prepare an accurate transcript.

5. Speak distinctly and slowly, and don’t speak over the other attorney or the witness.

6. Learn to speak for the record. Don’t use “this” or “that” or similar inexact words without clarifying the reference. Make witnesses do the same.

7. Check with the bailiff on where clients and witnesses may be seated. Many judges will only allow attorneys in front of “the bar” and clients at counsel table during trail. Everyone else must stay behind the bar.

8. Discuss the placement of blackboards, easels, or large exhibits with the bailiff before trial. Don’t show up the morning of trial with an array of devices expecting to set up and get it right the first time.

9. Ask the bailiff or the clerk about the judge’s preferences on courtroom protocol: For example, will the judge require attorneys to address the jury from behind the podium? Does the judge require attorneys to ask permission to approach a witness? Does the judge have any other preferences on attorney conduct or movements?

10. Learn the Court’s exhibit marking system (these vary from judge to judge) and pre-mark exhibits before the trial, if possible. Don’t waste everyone’s time marking exhibits while a witness is on the stand.

11. Resist the temptation to ask court personnel how your case is going. Aside from being amateurish, it puts them in an uncomfortable situation. Suppose they think your case is going poorly – what do you expect them to say?

12. Rehearse the use of audio-visual devices, such as overhead projectors. Nothing detracts more from your image as a professional than fumbling over presentation hardware in front of the jury.

13. If you want to speak with a judge, call the clerk and ask when the judge will be available. Some judges don’t mind attorneys just showing up, but others think it’s intrusive and rude to show up in court asking if the judge “has a minute.” Judges are as busy as you are, and value their focused time in chambers without interruptions. On the other hand, a truly urgent problem can always be dealt with if necessary.

14. Ask the clerk for the judge’s preferences on courtesy copies of motions papers. Most appreciate them but some don’t want them. Keep in mind that your judge doesn’t have a law library in chambers. Making copies of the motions papers from both sides, as well as the most important cases neatly bound, is usually appreciated. Deliver them at least two days before the hearing, noting in your cover letter the date and time of the hearing.