Knowing your judge & courtroom

By the time a case is ready for trial in federal court, lawyers on the trial team have made several appearances before the court. Each side has appeared for the initial pleading disputes, several status conferences, discovery disputes (unless handled by a magistrate) and at least one trial setting conference. The trial team has multiple opportunities to “watch” the judge, gauge the tempo of the courtroom, and interact with courtroom personnel. Surprisingly, very few trial teams use the opportunities to prepare for the physical and emotional aspects of trial. This tunnel vision approach to appearances overlooks the advantages that can be gained by scouting the courtroom.

Experienced lead trial counsel appoint a three-person advance team, usually composed of a senior associate who has trial experience, a junior associate and a legal assistant. In most cases, the legal assistant and the junior associate can share tasks. The advance team compiles the scouting report, learning the ins-and-outs of the courtroom, the court weekly docket, court staff, law clerks, the local-local rules, the court standing orders, and, of course, the judge.

At the beginning of the case, the advance team explores every aspect of the court web site, printing out the relevant general orders, standing orders, contact information for court personnel and law clerks (if contact is permitted), and –rules regarding access. Most courts post the weekly or bi-weekly schedule. Knowing which days of the week a court holds status conferences versus dispositive motions versus its criminal calendar is important because the trial team can make intelligent choices about the timing of the filing of papers and motions.
As a case progresses, the advance team sends the junior associate to observe the court’s motion calendar and pretrial conference calendar. Using the court’s published calendar and pacer to read specific case dockets, the advance team is able to prepare first person observations of the workings of the court. Finding similar cases on pacer and reviewing orders and motion papers help the advance team understand the day to day rhythm of the courtroom and the judge. Prior to the 100 days before trial, the advance team is in the courtroom up to eight hours a month watching other cases and proceedings.

During the 100 days before trial, the advance team looks for opportunities to observe pre-trial conferences, jury selection, and trials. The pre-trial conference is instructive because it is the earliest indicator of the predilections of the court in trial mode. The trial team gains specific insight about how the court may resolve evidence disputes, how best to prepare exhibits and exhibit lists, resolution of exchange issues regarding demonstratives, and time management procedures. Additionally, the senior attorney on the advance team schedules at least two field trips for the lead trial attorney to observe the first day of trial, watching the last minute legal wrangling, voir dire, and opening statements. Often overlooked is the examination of witnesses, both fact and expert. Understanding the process the Judge will use to manage the jury during objections and sidebars gives lead trial counsel a distinct advantage over the trial teams who have not scouted the courtroom. Familiarity with courtroom dynamics, courtroom management and the judge credentials the lead trial attorney with both judge and jury during the trial.