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Question: In a jury trial how can you tell if your presiding judge is inexperienced, incompetent, simply lazy, or perhaps some combination of all three?
Answer: In order to give this answer the attention it deserves, you must first understand the main difference between what an attorney does during trial and what a judge does?
- Trial attorneys TRY cases;
- Presiding judges MANAGE cases (and no matter how much a judge may want to meddle, never shall the two cross)
All trials (jury, court, criminal, civil, family, juvenile, etc) are incredibly serious business. They represent the culmination of months of hard work for the attorneys; the moment defendants, victims and litigants finally get their day in court and perhaps most important, the right to trial forms the cornerstone to our entire system of justice. And one person is given the awesome responsibility to manage and safeguard that constitutional right — the presiding trial judge.
Show me a trial that is plagued with problems and numerous delays, and I will show you a presiding judge that has failed to properly manage that trial. Although some judges routinely blame unexpected problems and delays on the attorneys, truth be told, invariably the root cause is a judicial failure to properly manage the trial. Failure to properly manage a trial is usually the result of failing to conduct a meaningful pretrial management conference immediately prior to commencement of trial. The purpose for a pretrial management conference is to discuss substantive, procedural, evidentiary and other trial management issues.
In order for a judge to properly manage a trial (especially jury trials) it is imperative that he/she conduct a pretrial management conference with both attorneys immediately prior to commencement of trial. Whether the judge handles this pretrial conference in a formal or informal manner is a matter of personal style – as long as key rulings or decisions are, at some point, put on the record outside the hearing of the jury but in the presence of the defendant/parties.
CIVIL TRIALS: When presiding over civil trials Title 2, Part H of the “General Rules of Practice – Minnesota Civil Trial Book” identifies the specific issues that should be addressed at the pretrial conference.
CRIMINAL TRIALS: When presiding over criminal trials (misdemeanor or felony) I suggest the use of a Criminal Pretrial Checklist. This checklist covers approximately 2o substantive, procedural and evidentiary topics that should be discussed prior to commencement of trial. I guarantee that following this checklist will significantly reduce the number of unexpected problems and delays during your trial and will greatly enhance the presiding judge’s ability to properly manage the trial.
For a copy of the full pretrial checklist with rules, statutory and case citations, see Chapter 1 of the “CRIMINAL JURY TRIAL JUDGE’S HANDBOOK” (A Step by Step Guide From the Beginning of Trial Through the Return of Verdict). There is also a direct link to the Handbook under the “Training & Trial Manual” section of the “Judicial Resource Library” on the Blog website. Below is a summary of the Checklist topics:
PRE-TRIAL CHECKLIST (IN CHAMBERS) ………………………………………..
- WITNESS LISTS
- SEQUESTRATION, EXCLUDING PERSONS, COURTROOM CLOSURE
- JURY INSTRUCTIONS – PRELIMINARY DISCUSSIONS
- CHARGES AND ARRAIGNMENT
- STIPULATIONS AND/OR ADMISSIONS
- JEOPARDY ATTACHES ONCE JURY SWORN – DEADLOCKED JURY – MISTRIAL 8. DEFENDANT’S RIGHT NOT TO TESTIFY – PROPER RECORD
- DISCOVERY ISSUES
- AFFIRMATIVE DEFENSES
- WITNESS INCRIMINATION ISSUES
- SECURITY/CUSTODY ISSUES (IF DEFENDANT IN CUSTODY)
- USE OF WEAPONS/HAZARDOUS EXHIBITS DURING TRIAL
- OPENING STATEMENT
- COMPETENCY OF CHILD WITNESSES – SAMPLE QUESTIONS
- PROSECUTORIAL MISCONDUCT
- MOTIONS IN LIMINE AND OTHER TRIAL EVIDENTIARY ISSUES
- VOIR DIRE PROCEDURES AND GUIDELINES
- TRIAL GROUND RULES
- JUDICIAL WIKIPEDIA – JUDGES ONLINE BENCH BOOK
JUDICIAL BENEFITS OF USING A PRE-TRIAL CONFERENCE CHECKLIST:
- Lets attorneys know that you are prepared and that you expect them to be prepared;
- Establishes judicial control and your expectation that the trial will be conducted efficiently and fairly with minimal delays or disruptions;
- Establishes judicial credibility, allows you to set the rules for trial and your expectations of the attorneys;
- Identify potential problem areas so you can start preparing for them before they actually become problems;
- Using the Checklist can reduce the risk of appeals or remands;
A note for the inexperienced trial judge: If you are new to the bench, I cannot emphasis enough the importance of developing good trial management skills. Learning how to manage a jury trial is quite different from trying a jury trial. They involve two very different mindsets. Just because you were good at one doesn’t mean you’ll be good at the other. Eventually you will develop your own trial management handbook. But until that day, I suggest you use the CRIMINAL JURY TRIAL JUDGE’S HANDBOOK as your starting guide.
Final Disclaimer and Comments on Arrogant Judges: The vast majority of district court judges are excellent trial judges and do not fall into any of the above categories. However, as in most professions, there is a small number of judges that do fall into at least one of those categories. Being inexperienced is ok, being incompetent, lazy or arrogant is not. The sad truth is that many attorneys (and judges) already know which judges are incompetent, lazy or arrogant but believe there isn’t much they can do about it….or is there? I plan on discussing the topic of arrogant judges and what options are available to attorneys in future posts.
Title of next week’s blog post is: “How Does a Good Judge Turn Into a Bad Judge and What is the Best Way for Attorneys to Handle a Bad Judge”
Alan F. Pendleton (Former District Court Judge)