Thomas Storm [stormyt@...
*"Don't Exclude Jurors from Your Bench Conferences"*
When was the last time you watched someone else try a case? Have you
ever snuck into a courtroom and watched your opponent present a case?
If not, let me recommend you jump at the opportunity to watch someone
else pick a jury and present their case. If you do, you'll learn some
things that you wouldn't normally notice about successfully trying
Last year I had the opportunity to watch numerous jury trials and
critique the performance of the attorneys. When I watch a trial, I try
not to read the case file or review a case summary, because I don't want
to know any more about the case than the jury would. I want to be
completely detached from the emotional background of the case, so that I
can just sit in the back row and watch the trial unfold, critiquing the
trial from the jury's perspective.
Watching all of those trials, one of the things I noticed was just how
irritating bench conferences are. In one of the trials I watched last
year, the attorneys seemed to spend more time presenting their cases to
the judge than they did presenting their cases to the jury. When most
attorneys approach for bench conferences, they violate a cardinal
Never turn your back on your audience.
Have you ever seen a live theater performance? No matter where the
actors move on the stage, they never turn their backs on the jury. It's
the same on TV. You've probably noticed how TV families are always
gathered on one side of the dinner table, right? That's so they don't
turn their backs on the camera and exclude anyone in their audience.
You know how rude it feels when someone turns their back on you. But
when you approach for a bench conference, that's exactly what you're
doing. You're turning your back on the jurors.
The second problem with approaching the bench to argue a point of law is
that you form an elite little club that excludes everyone else in the
courtroom except you, your opponent, the judge, and the court reporter.
As I watched the attorneys huddle around the bench and whisper, I wanted
to lean in and listen to the conversation. I wanted to know what was
going on. And I was resentful that I was being excluded from their
group. Here are two lessons you can apply in your next trial to avoid
ignoring or excluding your jury:
*LESSON #1: Argue the Law Before Trial*
The bench conferences I saw involved points of law that should have been
handled before trial. If you're waiting until the day of trial to argue
essential points of law or limit your opponent's introduction of
evidence, you're waiting too late. File motions *in limine* before
trial, and you'll be able to argue those essential points of law in
advance of trial, minimizing the need for legal discussions during
*LESSON #2: Don't Turn Your Back on the Jury*
If you *must* approach the bench to argue a point of law or respond to
an objection, make sure you don't exclude the jurors from your
That doesn't mean raising your voice so they can hear what you're saying
-- that's improper. But you can use your body language to include the
jury at the bench. Rather than turning your back on the jury, just turn
your body half way or 3/4 of the way towards the judge. Leave part of
your body "open" towards the jury, and they won't feel completely
FF sez: if one finds oneself so far down the slippery slope that one is
actually in a properly set court awaiting a trial (which is something
about which I can only fantasize here in the land of fruits and nuts), I
guess this is a good tip to remember, since by then one sympathetic
hold-out juror may be one's only hope until after one has worked through
the possibly necessary appeal.