5 Trial Lawyer • Fall 2023 package at one time the chance of any becoming lost or misplaced is reduced. If the text of a document is pivotal during examination of a witness, guide the judge there: “Your honor, I’m referring now to exhibit 32, page 7, paragraph 3.” Be flexible Trials are live theater. Anything can, and often does, happen. Remember that the map (your outline or notes) is not the territory. If you read the room, you will know when you need to depart from the script to clarify or emphasize a point or respond to something unexpected. The best trial lawyers can take a body blow to the stomach and still project an attitude of calm, confident composure. Be human Authenticity comes from willingness to admit that you are not perfect and make mistakes. When you do make a mistake, however trivial, own it completely. Advocacy is often a difficult to determine line between total war and professionalism. The several times I came too close to that line I would say, “Yes, your honor, I did that. I was not at my best. It will never happen again.” Judges never want to hear that the reason your filing is 21 days late is because the court clerk was unreasonable. Be trauma informed Human foibles, faults and traumas are on public display during a trial. Be sensitive to that when approaching sensitive topics. A softening preliminary comment can be, “This may be a difficult question for you, but it’s my job to ask it …” You don’t get extra points for being an a**. Judges are human, too Before I took the bench, I observed other judges and thought, “I could do better than that.” After a few months in the role, I realized that the job is more difficult than it looks. A judge is often multitasking: signing on, finding the appropriate docket and documents in the case, responding to IMs from clerks and planning the order of cases. Help the judge out by pausing when they appear to be distracted. File a trial brief and deliver a copy to the judge’s chambers before appearing in court. Three pages is sufficient for a bench trial. Don’t assume they have it because you filed it the night before. It often takes 48 hours for e-filed documents to appear on the docket. Don’t overpromise what you expect the evidence will show. If you present a story supported only by what your client has told you, you have constructed a house of cards that, when it crumbles, will affect your own credibility in this case and all those that follow. Stay courteous I put a post it on my desk which said: “Patient, dignified, courteous.” On a good day, I hoped to achieve at least two out of three. On a difficult day if I could only manage one, I would be courteous. Professional courtesy will serve you during your career long beyond the apparent needs of any particular case. Most OTLA members already do what I’ve suggested here. But like elite athletes, it never hurts to return to the fundamentals. When we are all at our best, we collectively create what the system is designed to deliver: justice. That is a noble calling to pursue. Hon. Joe Charter retired from the Jackson County Circuit Court in May 2023. He was previously the Jackson County Justice of the Peace and a general practice civil litigator for nearly 30 years. He currently acts as a mediator and arbitrator. He can be reached at charterjoseph@gmail. com or541-944-4297. Help the judge out by pausing when they appear to be distracted.
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