Chapter 3: Trial Procedures and Motions

Effective advocacy depends on knowing the trial-procedure rules and practices that govern scheduling, decision-maker assignment, preliminary procedures, courtroom conduct, and the taking of evidence — the procedural backbone that determines what an advocate may and may not do at every stage of a case.

Chapter 3

■ ■ ■

3.1 Introduction

3.2 Case Preparation

A. Scheduling a Trial

B. Scheduling an Administrative Hearing

C. Scheduling an Arbitration

D. Readiness of Counsel

E. Case Scheduling

F. Document Filing and Access

3.3 Decision Maker Assignment

A. Assignment of Judge

B. Disqualification of a Judge

C. Removing a Judge for Cause

D. Removing a Judge Without Cause

E. Assignment of Arbitrator

F. Removing an Arbitrator

G. Assignment of Administrative Judge

H. Removing an Administrative Judge

3.4 Preliminary Procedures

A. Litigation Meetings and Plans

B. Pretrial Statements

C. Pretrial Conference

D. Pre-Hearing Administrative Process

E. Pre-Hearing Arbitration Procedures

F. Case Briefs

3.5 Conduct by the Advocate

A. Avoiding Familiarity

B. Use of Names

C. Counsel Interruptions

D. Activities

E. Matters Heard Outside Hearing of Jurors

F. Bench/Sidebar Conferences

G. Counsel Table

H. Setting the Stage

I. Room Equipment

J. Case Materials

K. Requests by Counsel

L. Demeanor of Counsel

3.6 The Taking of Evidence

A. Scheduling Witnesses

B. Subpoenaing Witnesses

C. Sequestering Witnesses

D. Digital/Electronic Evidence

E. Use of Interpreters

F. Receipt of Evidence

G. Scope of Examinations

H. Stipulations

I. Evidence Summaries

J. Admissions

K. Former Testimony

L. Judicial/Arbitral/Administrative Notice

M. Planning Introduction of Evidence

3.7 Tribunal Involvement

A. Court-Appointed Experts

B. Court Witnesses

C. Questioning by the Court

D. Questioning by Jurors

E. Court Appointed Neutrals

F. Administrative Proceedings

G. Arbitration Proceedings

H. Complex and Multidistrict Cases

3.8 Motions

A. Motion Documents

B. Opposing Motions

C. Types of Motions

3.9 Motion Argument

A. Available Time

B. Familiarity with Motion

C. Supporting Memorandum

D. Opposition Memorandum

E. Location of Presentation

F. Sequence of Arguments

G. Recording of Presentations

3.10 Motion Argument Techniques

A. Brevity

B. Conversational Approach

C. Preface

D. Structure

E. Substance

F. The Law

G. The Facts

H. Factual Descriptions

I. Notes/Outlines

J. Exhibits

K. Interruptions

L. Opposition Weaknesses

M. Candor and Compromise

N. Responding to Questions

O. Involving the Decision Maker

P. Rulings

Q. Written Presentations

3.11 Presentation to a Judge/Arbitrator/ALJ

A. Opening Statements

B. Evidentiary Rulings

C. Introduction of Evidence

D. Summation

E. Findings of Fact, Conclusions of Law, Orders

3.12 Making a Record

A. Purpose

B. Complete and Accurate Record

C. Reporter

D. Log of Case

E. Assisting the Reporter

F. Administrative Hearings and Arbitrations

3.13 Trial and Hearing Problems

A. Challenging Decision Makers

B. Troublesome Attorneys

C. Difficult Witnesses

D. Troubles with Exhibits

E. Predicaments with Colleagues and Staff

F. Responses to Problems

—————

REFLECTING ON ADVOCACY

If you’re going to play the game properly, you’d better know every rule.

—Barbara Jordan

Four things belong to a judge: to hear courteously, to answer wisely, to consider soberly, and to decide impartially.

—Socrates

Introduction

This Chapter summarizes various rules and practices that advocates need to know and follow to prepare and present a case effectively.

Case Preparation

A. Scheduling a Trial

Civil cases are scheduled in accord with the rules of civil procedure or similar provisions that apply in a jurisdiction. In some courts, an attorney submits a written demand or electronic filing request to place a civil case on the docket, with many tribunals using online filing systems. See § 3.2(F). The certification or note of issue may state that the case is ready to be tried. After the submission has been served upon the parties and filed with the court, the case is placed on the trial calendar. In other jurisdictions, civil cases are routinely placed on a docket either automatically or unilaterally by the court staff. The administrator or clerk of court can provide information regarding when the case will be called to trial. The timing in each jurisdiction varies depending on the calendar system and the number of cases docketed.

Criminal cases are scheduled by the office of the clerk or administrator. Lawyers may not need to submit a request, unless pre-trial procedures include such a demand or a prompt trial is requested. Statutes, rules, and the defendant’s right to a speedy trial govern the scheduling of these cases. Accordingly, criminal cases take priority over the scheduling of civil cases. Some jurisdictions have separate calendars for civil and criminal cases with rotating panels of judges available for these cases.

The assignment of a judge for trial depends upon the type of court calendar employed. There are three major types: a main calendar system, an individual calendar system, and a combination of these two systems.

The main calendar system, also known as a special term system, assigns pretrial motion matters to judges on a rotating basis. When a pretrial motion is filed, a judge is assigned to hear that motion. When the case is ready for trial, a judge, ordinarily not the same judge who ruled on the previous motions, is assigned. The trial judge initially learns about the case shortly before the trial, unless that judge has heard a prior motion.

The individual calendar system, also referred to as the block system, assigns entire cases to individual judges. The assigned judge handles all proceedings as well as the trial. In the individual calendar system, the judge is familiar with the facts, law, and attorneys by the time the case is ready for trial. This system is used in federal courts. A federal magistrate judge is available to assist with cases by deciding discovery and other non-dispositive motions while the judge decides dispositive motions such as summary judgment and tries the case. During a pre-trial scheduling conference, a date is set for the trial.

Some courts use a hybrid calendar system, combining both the main and individual systems, depending upon the case backlog and court docket. In all systems, a court administrator or clerk usually assigns cases on a random basis depending upon the availability and caseload of judges.

B. Scheduling an Administrative Hearing

Administrative hearings are typically scheduled by an administrator from the agency and are commonly set for a specific, limited period of time. Some administrative law judges (ALJs) manage their schedules and may set a hearing date during a pre-hearing conference.

C. Scheduling an Arbitration

The arbitration organization typically schedules the arbitration proceedings and hearings, depending upon the availability of the arbitrator. The case coordinator with the arbitration organization contacts and advises the parties when and where the arbitration will occur, depending upon their reasonable availability. Some arbitrators schedule their own hearings. It is typical for the parties to estimate the amount of time required for an arbitration hearing, and for the administrator or arbitrator to set beginning and concluding times.

D. Readiness of Counsel

Attorneys should commence case preparation as soon as possible after the cause of action arises. The facts are fresh in the minds of witnesses, and documents are available for preservation. Often, a “preservation hold” or “litigation hold” document is needed to preserve information and prevent it from being destroyed or deleted. The client’s lawyer contacts parties, employees, and agents in an email or memo requiring them to identify and retain relevant paper documents, emails, social network communications, files, and other electronically stored information. An order may also be obtained preserving relevant documents and potential evidence. Sanctions exist for the destruction or spoliation of evidence.

Early discovery is usually more productive than later efforts to gather information. Motions typically must be brought to dismiss claims, add parties, complete discovery, and dispose of issues by summary judgment. The schedule for discovery and motions is influenced by many factors, including how soon a case is ready for trial or final hearing.

Federal judges and many state judges control the progress of cases by issuing scheduling orders with deadlines and “cutoff” dates for discovery and motions and a proposed trial date. The parties may or must submit to the court informational statements, joint or separate, providing stipulated or suggested time periods for stages of the case. It is required in federal cases and common in many state cases for the lawyers to mutually confer about a discovery, motion, and pretrial plan to be submitted to the judge.

The attorneys must complete discovery and have all motions resolved before the deadlines set by the judge. Some jurisdictions require lawyers to file a certificate of readiness notifying everyone when they are prepared for trial. This notice may terminate discovery unless opposed by a party. It also may be a prerequisite to obtaining a trial date.

Arbitration procedures commonly maintain counsel on a reasonably fast track to a hearing, reflective of the issues to be resolved. The time deadlines included in arbitration rules tend to be strictly enforced. One of the benefits of arbitration is the prompt way a case proceeds to a hearing, and counsel need to comply with the deadlines and be ready to proceed.

Administrative hearings also often proceed at a faster pace than litigation cases. Rules of the administrative agency prescribe the timing of procedures. Some administrative cases are scheduled with firm deadlines that require counsel to be prepared to try the case.

E. Case Scheduling

Jurisdictions schedule specific starting dates for trials in several ways. Some courts notify counsel of a “date certain” when the trial will begin. Other courts advise counsel that they should be prepared to go to trial on a specific day or during a specific week, but that the trial date may be delayed depending upon the court docket. In other jurisdictions, attorneys select a trial date from dates available at the pretrial conference.

The beginning date for a trial may be uncertain. The uncertainty of not knowing a trial schedule can disrupt preparations. Witnesses are difficult to subpoena when counsel are unsure when the case will be tried.

Arbitration organizations or arbitrators ordinarily schedule hearings to begin on a specific date and time. Similarly, administrative law cases typically are scheduled for a date certain and usually begin at that time.

F. Document Filing and Access

Federal courts and many state courts accept document filings from attorneys electronically, either exclusively or as an alternative to paper submissions. Case Management/Electronic Case Files (CM/ECF) is the federal court’s docket management and electronic case file system. Counsel may file all case documents over the internet, including pleadings, motions, briefs, affidavits, and proposed orders. PACER (Public Access to Court Electronic Records) is the federal court’s electronic public access service that allows lawyers, the public, and others to obtain case information online. Many administrative agencies and arbitration administrators have similar paper and/or electronic case filing systems.

Decision Maker Assignment

A. Assignment of Judge

State and federal courts commonly assign judges to cases on a random basis. In all jurisdictions, judges may be disqualified for conflicts or by a judicial conduct code. Federal judges may remove themselves from a case and may only be removed at the request of counsel for extraordinary reasons.

In state courts, counsel can seek to remove an appointed judge for cause. In many state courts, lawyers can remove the first judge assigned to a case without having to proffer a reason. Subsequently, a judge may only be removed for cause.

B. Disqualification of a Judge

Federal and state codes of judicial conduct determine when a judge must be disqualified. Disqualifying situations include:

• Personal bias or prejudice toward a party.
• Personal knowledge of disputed evidentiary facts.
• Service as an attorney previously representing a party.
• Personal, family, financial, or other interests in the case.
• Relationship within the third degree between the judge and a party or lawyer.

Judges have to remove themselves if there exists a conflict of interest, objective existence or significant appearance of substantial impropriety, or serious illness or disability. Federal Rule of Civil Procedure 63 and similar state rules provide a procedure to replace judges.

C. Removing a Judge for Cause

In state court cases where judges do not remove themselves, attorneys may request that the judge be removed for cause. A lawyer who believes that a judge should be disqualified for a conflict must bring a motion and establish good cause for removal. Most jurisdictions require that the motion be heard by the judge who is allegedly prejudiced or biased. In some jurisdictions the chief judge appoints another judge to hear such a motion. These situations involving removal requests for cause do not occur often.

D. Removing a Judge Without Cause

In states where parties can remove the first judge assigned to a case without cause, attorneys do so in hopes that the second judge will be potentially less biased or more favorable. These rules do not permit a lawyer to select a certain judge, but permit removal of the initially assigned judge. In this procedure, the advocate files a notice of removal or similar document that requests another judge. The notice typically need not state any reason for removal. The court clerk automatically assigns a successor judge.

In some state jurisdictions, the removal document is referred to as a certificate or affidavit of prejudice and the attorney may have to include a conclusory statement or some facts that suggest why the judge may be prejudiced. The court administrator must honor the removal request and appoint another judge, usually on a random basis. These procedures permit counsel to remove the judge initially assigned to a case, but not subsequently assigned judges. A successor judge can be removed only through disqualification or by a showing of good cause.

Removal documents must be filed promptly. In cases where counsel receives notice of the assigned judge, several days may be allowed to file a removal. In cases where the judge is orally assigned at a trial calendar, the lawyers may only have a short time to request another judge.

The decision by an attorney to file a motion for removal of a judge may be strategically difficult. In some state jurisdictions, such requests are routinely made and judges do not know, or may not care, whether a request has been made or which party made the request. In these situations, the tactical decision to file a motion for removal may be easy. In other jurisdictions, such requests are viewed with disapproval by the judges. The advocate must consider whether it’s better to offend potential replacement judges or stay with the initial judge to avoid the problem.

E. Assignment of Arbitrator

Parties may be able to select their own arbitrator if they can mutually agree. Otherwise, the selected arbitration organization will provide a list of available arbitrators from the parties to choose from or assign an arbitrator from a list of experienced, impartial neutrals who have no conflict of interest. Some arbitrations involve three arbitrators, and the administrator would appoint all three neutrals. Some arbitration clauses provide that each party select an arbitrator and these two arbitrators select a third neutral arbitrator.

F. Removing an Arbitrator

Parties ordinarily have an opportunity to remove or challenge an arbitrator. In arbitrations where the organization appoints a specific arbitrator, the parties may request another arbitrator by challenging the originally appointed arbitrator for a conflict of interest or insufficient expertise. In arbitrations where a list of arbitrators is provided, each party may remove one or more of the proposed arbitrators which results in the surviving arbitrator being the presiding arbitrator. The arbitration organization commonly provides the parties with professional resumes of the arbitrators and often a list of cases they previously decided.

G. Assignment of Administrative Judge

Administrative agencies commonly assign a judge or hearing officer randomly from a pool. Some agencies have their own panel of specialists who are assigned to cases. Other agencies draw from a statewide pool of administrative judges or hearing officers who hear a variety of cases.

H. Removing an Administrative Judge

The procedures for challenging an administrative judge or hearing officer will be established by statute or administrative rules. Some may not be removed at the request of a party unless a clear conflict of interest or substantial prejudice or bias exists. Others may be removed through a process similar to removing judicial judges or arbitrators.

Preliminary Procedures

A. Litigation Meetings and Plans

Federal procedural rules and many state court rules mandate that the litigators at the beginning of a case confer and create a discovery and litigation plan to submit to the judge assigned to the case. If the lawyers are unable to agree on all issues, they may submit alternative proposals. The judge may then meet with them or may issue an initial pretrial order governing discovery and motions.

Many jurisdictions allow or require submissions by attorneys to be filed electronically and orders issued by judges issued electronically. These digital formats permit litigation, hearing, and trial documents to be easily and timely accessible to all participants, and also reduce problems with the submission of cumbersome paper documents.

B. Pretrial Statements

Advocates as part of pretrial preparation are typically required to exchange written or electronic statements that summarize aspects of the case. These statements identify and narrow disputed issues, assist the lawyers in preparing the case, facilitate settlement discussions, and help the court understand the case. Such statements may include the following:

• Name and identification of the client.
• Name and identification of counsel trying the case.
• Identity of any insurance carriers.
• Efforts made to settle the case by negotiations or mediation.
• Summary of the pleadings, issues, claims or defenses.
• Description of completed and uncompleted discovery.
• Status of preserving paper and electronically stored information and potential evidence.
• Location of discovery data, that may be placed in a depository.
• List of pretrial motions to be brought.
• Identity of witnesses with relevant knowledge, including expert witnesses and their areas of expertise, who may testify.
• Concise statement of the party’s version of the facts.
• List of exhibits to be offered as evidence.
• Stipulations regarding evidence or procedures.
• Elements of law that must be proved in the case.
• Citations to authoritative statutes, ordinances, or cases.
• Itemized list of special damages, if sought.
• Estimated length of the trial.
• In a jury trial, proposed jury instructions.
• In a bench trial, proposed findings and conclusions.
• References to the use of Gen AI and LLMs, if required or advised by court order or rule.

The timing of these submissions depends on the applicable procedural rules. Judges may require more than one pretrial statement, with a concise one submitted early in a case and a detailed submission when the case is ready to proceed to trial.

C. Pretrial Conference

At some reasonable time prior to trial, the judge will order, or a party may request, a pretrial conference. See Fed. R. Civ. P. 16. A conference permits the judge or magistrate to:

• Discuss settlement and mediation or other procedures.
• Decide whether settlement possibilities have been exhausted.
• Ascertain the disputed issues.
• Determine whether any pleadings need amending.
• Assess the status of discovery.
• Review preserved discoverable evidence and exhibits.
• Rule on any motions or requests made by counsel.
• Determine whether summary judgment or other motions are to be made.
• Ascertain whether any motions in limine may be submitted.
• Review previously imposed litigation time deadlines.
• Attempt to simplify issues by inquiring whether:
• any issues in the case may be eliminated, narrowed or modified by stipulation, motion, or dismissal;
• admissions of facts exist;
• undisputed facts can be presented by stipulation or in a summary fashion;
• stipulations regarding the waiver of foundation required for evidence and other agreements regarding certain evidence or exhibits may be reached;
• procedures regarding the review and admissibility of electronic and digital evidence are being followed;
• any preliminary motions concerning the admissibility or exclusion of evidence or about any major evidentiary problems may arise during the case; and
• any critical legal or factual issues may arise.
• Determine the advisability of referring issues or settlement discussions to a court appointed neutral or special master.
• Inquire whether the number of witnesses, including experts, may be reduced.
• Decide the order and sequence of opening and closings, and witness examinations, especially in multi-party cases.
• Ascertain the time required for the trial.
• Set the hours and days scheduled for the trial.
• Prepare for the marking of exhibits and make special arrangements for the review and use of electronically stored information, diagrams, videos, computer generated presentations, demonstrations, and other exhibits.
• Inquire whether counsel plans to use any visual aids or exhibits during opening statements or final arguments.
• Determine whether sufficient computers and monitors and other equipment needed to try the case are available and work in the courtroom.
• Ascertain whether any scheduling problems may occur because of other commitments or conflicts that the participants may have.
• Make arrangements for daily transcripts, if needed.
• For a jury trial:
• Certify that a jury has been demanded or waived.
• Review procedures for jury selection.
• Determine the number of alternate jurors.
• Decide on the number of peremptory challenges and process.
• Determine whether the jurors will need to visit a site.
• Summarize the introductory statement the judge will make to the jurors explaining the case.
• Review or consider preliminary and final jury instructions.

Form 3.1 provides a pretrial summary worksheet.

On some matters, the judge makes final rulings during or after the conference that are written or recorded. See Fed. R. Civ. P. 16. On other matters, a ruling may be made or reserved until later, in order to consider how issues are presented or how evidence is offered. Motions, objections, stipulations, and rulings must be preserved on the record. If a court reporter is present during conference discussions, a record is or can be made. If a reporter is not present, a record can be made at the end with a reporter appearing by summarizing all matters that need to be preserved.

D. Pre-Hearing Administrative Process

The existence and scope of a pre-hearing conference for an administrative proceeding depends upon the type of administrative process. In simple cases, there are no pre-hearing conferences, and the parties can discuss issues with the ALJ or hearing officer immediately before the scheduled case. In other cases, a pre-hearing conference may be conducted, and may occur by a telephone or video conference call.

E. Pre-Hearing Arbitration Procedures

Arbitration parties often have an opportunity to participate in a pre-hearing conference with the arbitrator. Issues to be discussed depend upon the type of arbitration and may include similar matters resolvable at a pretrial hearing. The hearing may occur through phone or video conferencing or online computer transmissions.

F. Case Briefs

Many decision makers expect or require attorneys to submit case briefs in support of their case. Typically, these submissions contain a summary of the facts to be proved and key witness testimony, a list of exhibits, an explanation of the relevant law, evidentiary issues, and other useful information, such as the anticipated length of the trial or hearing.

A case memorandum may consist of short explanations regarding case issues. These segments may be separated from the main brief and submitted individually when needed during the trial or hearing. Advocates may submit concise briefs to persuade the decision maker regarding claims or defenses even when memos are not required or requested.

GenAI can provide assistance in the drafting and composition of briefs and memorandums. See § 1.10[E]. Counsel bears the ultimate responsibility for submissions and will need to verify all cases and statements. Some tribunals require counsel to inform the decision maker that AI has been used in crafting submissions.

Conduct by the Advocate

Proper attorney conduct is important during every phase of the case because it affects the way people react both to that lawyer and to that lawyer’s client. Below are guidelines for appropriate attorney conduct.

A. Avoiding Familiarity

The advocate should not display or take advantage of any familiarity with the judge, arbitrator, hearing officer, jurors, or other participants, especially if it appears to be improper. The relationship displayed between and among decision makers and attorneys should always be professional. Jurors are instructed that the lawyers cannot talk with them during the trial to avoid inappropriate contacts.

B. Use of Names

A trial or administrative judge should be addressed as “Your Honor” or “Judge” and never by first name. An arbitrator may be addressed as “Arbitrator Surname” or “Your Honor.” An administrative hearing officer who is not an ALJ may be referred to by surname. It is preferred, and required in some jurisdictions, to address all other participants in a case by their last names to avoid any suggestion of improper familiarity. Some witnesses, such as children, may be appropriately referred to by their first names, and some attorneys may prefer to call witnesses by their first names for strategic reasons. When necessary, counsel should seek permission to use first names in formal settings.

C. Counsel Interruptions

and protocols interruption. A lawyer should not interrupt an argument, question, or response unless it is patently objectionable or truly unfairly prejudicial.

D. Activities

An advocate should not move about the court or hearing room, approach the bench, or approach a witness without first determining whether permission is required. Some decision makers expect attorneys to make a request the first time they do something; others expect lawyers continually to ask permission; many do not require such requests.

E. Matters Heard Outside Hearing of Jurors

Several events that occur during a trial should or must occur outside the hearing of the jury to prevent jurors from being influenced or prejudiced. See Fed. R. Evid. 103(c) & 104(c). Significant evidentiary arguments, offers of proof and supporting arguments, offers to stipulate, motions, and oral arguments should all be made at a bench conference, in chambers, or in the courtroom only when the jurors are absent. Additional sensitive areas of evidence such as questions, answers, exhibits, or arguments that may be prejudicial, inflammatory, or inadmissible must be addressed outside the hearing of the jurors.

F. Bench/Sidebar Conferences

During a jury trial, the attorney must approach the bench and talk quietly with the judge when the jury must not hear a discussion. The judge may ask counsel to approach the bench, or the judge will usually grant a request by counsel to approach. The area in front of the bench is known as the “well” and the area at the end of the bench is known as the “sidebar.”

The design of the courtroom and the location of the jury box determine where the bench conference occurs. In some courtrooms, the lawyers stand in front of the judge in the well. In other courtrooms, the conference occurs at the sidebar at the end of the judge’s bench opposite the jury box. Wherever the conference occurs, it should be far enough away or conducted in a quiet enough manner so that the jurors will not hear what is said. The court reporter must record the conference and usually sits adjacent to where the conference is held.

Attorneys should use bench conferences sparingly and only when necessary. Trips to the bench slow the pace of the trial and cause jurors to speculate about what is being kept from them. Some jurors react negatively to attorneys who too often request bench conferences.

G. Counsel Table

In courtrooms, the tables typically face the bench and witness stand, or the jury box. In arbitrations, the tables may face each other or the lawyers will sit on opposite sides of a large table. In administrative hearings, the layout may resemble a courtroom or an arbitration room.

In many courts, custom dictates which table is for plaintiff/prosecutor (often the table nearest the jury box) and which is the defense table. In other forums, the attorney who arrives first selects a table. In arbitration and administrative hearings, the arbitrator or judge may assign placements. It is critical that the lawyer appear organized and that the counsel table is kept neat. A cluttered table may cause the decision maker to think the lawyer’s case is similarly disorganized.

In a jury trial, the advantage in having the table nearest the jury is that the attorney can more easily observe the jurors. The advantage in having the table farthest from the jury is that the attorney can watch the entire courtroom, including opposing counsel. Some trial advocates have strong preferences about which table they prefer while others are flexible.

H. Setting the Stage

Procedures and the abilities of lawyers vary regarding whether counsel should stand or sit during parts of a trial or hearing. Court and hearing rooms need to be accessible for all participants. The law or policy may mandate that reasonable accommodations are to be provided and that barriers must be removed. Accordingly, some of the following suggestions will need to be revised or adapted to reflect the needs and capabilities of counsel. If an assigned room has inadequate facilities, it may need to be modified or another room selected. All attorneys need to be aware of these issues and provide appropriate support and assistance.

In trials and formal hearings, lawyers typically stand during the opening statement and the closing argument. Where counsel stands in relation to the decision maker, and whether counsel must stand behind a lectern, depends upon the rules and the decision maker’s preference. The placement of visual aids will also affect the location of the attorney.

Some courts, including federal judges, require lawyers to stand at counsel table or behind a lectern during witness examination and at counsel table during the making of objections. Other judges, including many state courts, allow or require attorneys to be seated for witness examinations and objections. In arbitrations and administrative hearings, it is common for lawyers to sit during the cases, or stand if necessary or if preferred for presentations.

Many judges restrict movements by lawyers in the courtroom. Some do not allow attorneys to move away from the lectern or counsel table during witness examinations unless they use an exhibit. Some do not permit counsel to move around the courtroom during opening or closing. Similar restrictions may apply in arbitration and administrative cases.

The effective advocate may seek permission to stand, sit or move in order to enhance the persuasiveness of the argument or witness examination. An attorney must become comfortable and familiar with the acoustics, distances, furniture, and setting of the room. The layout affects where the attorney conducts the opening statement and closing argument and how the attorney presents evidence. It usually is wise for the advocate to visit and spend time rehearsing in the trial or hearing room especially if the lawyer is unfamiliar with the room.

The decision makers need to have an unobstructed view of the advocates, the witnesses, and exhibits. Some courtrooms have inadequate space, poor acoustics, uncomfortable chairs, and related problems. Some hearing rooms are cramped. Advocates need to be aware where in the court or hearing room they will be most effective in making presentations.

I. Room Equipment

Courtrooms typically include an easel, a white (or black) board, projectors, and contemporary electronic devices such as document cameras, video machines, monitors, computers, and related equipment. New or remodeled courtrooms also have available electronic writing and display boards, computer ready access, wireless availability, shadow boxes, and other presentation equipment. Arbitration rooms and administrative hearing rooms may contain equipment appropriate for the type of case to be heard. In complex or lengthy cases, arrangements must be made to store exhibits. Secured electronic storage devices, file cabinets, boxes, or other equipment may need to be brought in to accommodate these items. The advocate must determine what is provided and what is needed so that the proper equipment and exhibits are readily available. See § 8.3.

J. Case Materials

Advocates commonly bring a variety of materials to the trial or hearing, including: the case notebook, laptops, smart tablets, deposition or preliminary hearing transcripts, parts of the case file, the rules of evidence and procedure, books, flash drives, Wi-Fi hotspots, wireless devices, artificial intelligence and LLM resources, and cloud access. Additional supplies and resources that lawyers bring are: computer equipment, GenAI sources, apps, laser pointers, markers, highlighters, folders, calculators, paper, tape, scissors, whiteout, and other materials. Experienced advocates maintain a kit that contains these commonly used supplies and materials for ready accessibility.

K. Requests by Counsel

Requests by counsel to go “off the record,” read something into the record, or take a recess should be addressed to the judge, arbitrator, or ALJ and not to the reporter or clerk. Usually, the reporter stops recording only if ordered. Routine requests to mark an exhibit may be directly addressed to a reporter or the decision maker by counsel.

L. Demeanor of Counsel

Counsel should act with respect toward all participants at all times. This professional demeanor should not prevent or inhibit counsel from being assertive or insistent in appropriate situations. However, displays of anger, rudeness, or any other inappropriate conduct are to be avoided.

Counsel should avoid exaggerated facial expressions, body language, head shaking, gesturing, shouting or other conduct that indicates disagreement or approval of rulings, statements by the decision maker, or events that happen during the case. While an opposing lawyer makes a presentation or conducts questioning, the attorney should refrain from reacting improperly, either verbally or nonverbally, because the decision makers watch the attorneys and expect professional courtesy from them.

Applicable rules of professional decorum may specify and regulate appropriate conduct. Counsel statements and actions should be characterized by civility and integrity. Conduct that is uncivil, rude, obnoxious, hostile, abusive, or obstructive impedes the fundamental goal of resolving disputes reasonably and fairly and must be avoided.

M. DISQUALIFICATION OF COUNSEL

Counsel may be disqualified to try a case if the lawyer has a conflict of interest, or continuously violates court orders, or acts so unprofessionally preventing a fair trial from proceeding. These are unusual or rare events. A conflict of interest may arise if an attorney is or becomes a fact witness and will be called or expected to be called to testify. It is an ethical violation for a lawyer to both advocate for a party and be a witness in that case. See § 1.9[C]. A party may bring a motion to disqualify opposing counsel if good cause exists. A party whose lawyer becomes disqualified may proceed by retaining a qualified attorney, which likely will cause a delay in the case.

The Taking of Evidence

WITNESSES

It is expected and preferred that witnesses will testify in open court during trials and hearings. Federal and state rules commonly require personal attendance unless a witness is truly unavailable to testify because of illness or cannot be subpoenaed. See, e.g., Fed. R. Evid. 43 and 804. Live testimony presented in person is the best way for the fact finder to receive evidence and to assess credibility.

In civil cases, the judge may allow by the rules or approve a stipulation by the parties that the testimony of some witnesses, including expert witnesses, may be introduced by video or transcript presentations. In some jurisdictions, this may be a common practice. In criminal cases, a defendant has a right to confront a prosecution witness in person. See § 3.6(L).

B. Scheduling Witnesses

Counsel should attempt to schedule witnesses in an efficient manner to avoid unnecessary delays. Attorneys should exchange good faith estimates regarding the sequence, timing, and length of witness examinations. The examining lawyer has the responsibility to make certain that a witness is present when needed. Usually, the testimony of a witness should be pursued until it is concluded and should not be interrupted by the taking of other evidence. This helps the fact finder minimize confusion about the testimony and is convenient for the witness.

C. Subpoenaing Witnesses

Counsel should always subpoena their witnesses, including supportive witnesses, to make certain they appear. The subpoena reminds a witness of the date of the testimony and the location. The subpoena can also identify what documents or other relevant materials the witness is to bring to the trial or hearing. Ordinarily, these documents are obtained before the trial and are already in the room. A subpoenaed witness who fails to appear can be ordered to appear at a rescheduled time. An unsubpoenaed witness who fails to appear may be precluded from later testifying because the examining attorney did not properly subpoena the witness.

Subpoenas are commonly issued by judges, arbitrators, and administrative law judges and obtained from a court clerk’s office, the arbitration forum or arbitrator, or the administrative clerk or ALJ. In many jurisdictions, attorneys may directly issue subpoenas identifying the forum where the case will be heard. Most jurisdictions and tribunals require that a witness fee be tendered along with the subpoena. A statute or rule usually establishes the amount of this fee, which includes reimbursement for mileage and/or a small monetary amount. Lay witnesses are not paid for their testimony or reimbursed for lost income. Expert and professional witnesses may be and typically are reimbursed for their time in court by a set fee or a reasonable amount for their hourly services.

The attorney who subpoenaed the witness should make diligent efforts to make sure the witness appears. A witness who fails to abide by a subpoena may be subject to a contempt citation and possible arrest. See Fed. R. Civ. P. 45(e). A warrant may be issued if service was proper and no reasonable excuse exists for the failure of the witness to attend. These possible sanctions may be too impractical or too late to obtain needed testimony. That’s why it is incumbent on counsel to secure attendance.

D. Sequestering Witnesses

The judge, arbitrator, or ALJ has the power and discretion to sequester—that is, to exclude or separate—witnesses during a case. Before the trial or hearing begins, an attorney may request that witnesses be excluded from the room to prevent them from hearing and being influenced by the testimony of others. A common sequestration order bars witnesses from the court or hearing room, except when they testify, and also prohibits the excluded witnesses from learning about, obtaining, or being provided the trial testimony. See Fed. R. Evid. 615. A witness remains excluded until testifying, until the party calling the witness has rested, or until rebuttal evidence has been completed.

Parties to a case, including individuals and someone specifically designated as a corporate or organizational representative, have a right to be present and ordinarily cannot be excluded. Criminal defendants cannot be excluded, although restraints could be placed on them if they unreasonably interrupt the trial. Evidence rules may also affect the sequestration of witnesses. Federal Rule of Evidence 615 and similar state rules prohibit the exclusion of a person whose presence is critical to the case, such as an expert witness.

Sequestration orders may or may not serve a sufficiently effective purpose. On the one hand, witnesses usually know from their preparation by counsel what other witnesses will say and what evidence will be introduced. On the other hand, if they listen to each other’s testimony, witnesses will likely gain valuable information and better present their stories in a consistent way. The effectiveness of a sequestration order depends on how thoroughly the attorney has prepared them, how familiar they are with the stories of other witnesses, and whether the sequestration order prohibits contact among witnesses outside the court or hearing room.

E. Digital/Electronic Evidence

Many cases involve evidence that has been preserved on a video, computer, smart phone, tablet, or other electronic device. The evidence may be testimonial or contained in an exhibit. Social media communications, messaging platforms, email accounts, collaboration tools, (e.g., Slack, connectteam, Mattermost) and websites may be sources of relevant evidence.

Several matters affect how counsel needs to prepare and present digital evidence. The advocate needs to ensure there is working equipment to display the testimony and exhibits. The evidence will need to be previewed by opposing counsel and the decision maker to make sure it is what it purports to be and is not objectionable. Unlike testimony that appears on a printed transcript or exhibit, electronic information is not readily apparent. It needs to be shown or displayed before the fact finder sees and hears it. Counsel must make timely arrangements to have this done to prevent delays and to make sure it will be admissible.

Digital evidence also involves issues of authenticity and accuracy and concerns about tampering, incompleteness, and distortions. These matters need to be addressed by counsel to avoid objections being sustained to the introduction and use of the electronic evidence. These issues also affect the use of visual aids during opening and summation. See Chapter 8.

Counsel ought not to unfairly present evidence that is likely to draw serious and strenuous objections. And advocates should not attempt to improperly display questionable exhibits or visual aids. These matters can be and usually are addressed and resolved during pretrial conferences.

F. Use of Interpreters

A witness or party may need an interpreter in order to testify or understand the case presentation. The tribunal may have access to available interpreters, or the party calling that witness will need to make arrangements in advance. An interpreter provided by the examining attorney may be sufficient if that person is reliable. Otherwise, the decision maker will select a neutral interpreter to ensure that the testimony is interpreted fairly and completely. An interpreter takes an oath to accurately interpret. In some cases, more than one interpreter may be available. There can be disagreements among interpreters regarding translations, and objections may be made to inaccurate translations. An AI platform or translation software can provide instant audio and caption translations of testimony. See § 1.01(C).

G. Receipt of Evidence

The judge, arbitrator, or ALJ controls the mechanics of the trial or hearing, the method and order of witness examinations, the introduction of evidence and exhibits, and related procedures. Federal Rule of Evidence 611(a) and similar rules provide that decision makers shall exercise reasonable control of case events to provide for the ascertainment of truth, avoid needless time consumption, and protect participants from harassment or embarrassment.

H. Scope of Examinations

1. Direct Examination

A competent witness may testify to any relevant matter unless excluded by a rule, statute or case. See Fed. R. Evid. 401. The pretrial or prehearing list of witnesses describes who the witnesses will be and, along with proper preparation, usually provides sufficient notice about witnesses who may present competency or relevancy problems. A witness is competent who, after taking an oath or affirmation, can reasonably communicate what the witness perceived and recollects. See § 7.2.

2. Cross-Examination

A witness may be cross-examined regarding any matter covered on the scope of direct examination, or related to credibility or impeachment, or any relevant matter permitted within the discretion of the judge, arbitrator, or ALJ, even if not directly covered on direct examination. See Fed. R. Evid. 611 and § 9.2(D). Cross-examining lawyers are typically provided wide latitude and substantial leeway to ask questions.

3. Redirect, Recross, and Subsequent Examinations

Redirect examination is confined to new matters brought out on cross-examination and cannot merely repeat matters brought out on direct examination. Recross examination is limited to matters brought out on redirect examination. Subsequent examinations are confined to the scope of matters covered during the previous examination. The judge, arbitrator, or ALJ has discretion to permit questions on matters not covered within the scope of a previous examination. See Fed. R. Evid. 611(b).

4. Rebuttal

After the defense has rested, the plaintiff/claimant/prosecutor may present additional evidence in rebuttal. The scope of this evidence is limited to those material areas covered during the defense case that were not covered during the initial case. Rebuttal is limited to new and significant areas of evidence and cannot be used to repeat evidence.

Rebuttal typically consists of a witness who can deny or contradict what an opposing witness has stated or an exhibit that contains contrary information. Judges, arbitrators, and ALJs have broad discretion in permitting or limiting rebuttal. An attorney offering rebuttal evidence should establish its relevance and how it expressly rebuts contrary evidence. Some decision makers may deny rebuttal evidence if they believe it should have been introduced during the proponent’s case in chief. Others may deny rebuttal to both sides because sufficient evidence has been introduced. Witnesses may be precluded from rebuttal if they had been sequestered but observed the trial or hearing after their testimony.

After the plaintiff/claimant/prosecutor has introduced rebuttal evidence, the defense may also offer relevant rebuttal evidence. Following the defense rebuttal, the plaintiff/claimant/prosecutor may offer new rebutting evidence only if it is appropriate and necessary. Decision makers reasonably prohibit cumulative or repetitive evidence.

A GenAI communication system can assist in determining the scope of examinations, what evidence has been introduced, and what rebuttals may need to be pursued. See § 1.10(E). Counsel will need to carefully monitor these efforts and outcomes for accuracy, completeness, and reliability.

I. Stipulations

Stipulations are a means to present evidence in a case without calling witnesses or having to lay foundations or introducing some exhibits. The parties may stipulate to specific facts, authentic exhibits, or witness testimony. The judge, arbitrator, or ALJ may prefer to have certain evidence submitted by agreement.

There are specific types of evidence that lend themselves to common stipulations. In civil cases and some criminal cases, the advocates often agree to submit via a stipulation some undisputed evidence. For examples: A statement listing uncontroverted facts may be readily agreed upon. The foundation for business records may be stipulated to avoid the need to have custodian witnesses testify regarding clearly authentic documents. Complicated exhibits or tests may be submitted as stipulated evidence without the need for time consuming foundation. Contemporary types of information including social media communications, emails, and website screenshots may be introduced as stipulated evidence if accurate and reliable. Experts may have their qualifications submitted through narrative or summary resumes.

There are limits to stipulated submissions. Lawyers may prefer to proffer testimony instead of a stipulation in submitting important and persuasive foundation or other compelling facts. In an injury case, it can be more effective to have an injured party describe injuries and damages instead of a stipulated list of numbered expenses. In criminal cases, defense counsel may want the prosecution to have to prove everything or critical facts.

Advocates usually have the right to submit evidence the way they prefer, and may do so even if the decision maker would favor the use of a stipulation. Lawyers should use the most effective strategic and tactical approach in deciding what to submit through stipulations. In a bench trial and an arbitration or administrative case, an evidentiary stipulation may be a preferred, effective, and efficient method.

A stipulation can be reduced to writing and approved by all counsel or made orally on the record. Other forms of evidence may be submitted through agreement of counsel, including: a video showing real evidence of a relevant event, a redacted website display, a computer generated avatar demonstration, a summary of social media postings, and additional types of factual exhibits. See Chapter 8. The stipulated facts or exhibits are presented to the fact finder at an appropriate time in the case, usually during the case in chief of the offering attorney. In jury trials, a printed stipulation may be read by one of the lawyers, a witness, the clerk, or by the judge.

Example:

Counsel:

Your Honor, I offer Exhibit No. 23, which we have already marked for identification. It has been provided to the court upon agreement of counsel this morning before we started. This stipulation involves the testimony of A.D. Pythagoras.

Judge:

Is that correct, counsel?

Opposing Counsel:

Yes, your Honor.

Judge:

It is received. You may proceed.

Counsel:

Your Honor, at this time I would like to read to the jury the stipulated testimony.

Judge:

You may, counsel. Members of the Jury, you are to accept these facts you are about to hear as true and undisputed.

Counsel:

Members of the Jury, counsel and I have agreed that were A.D. Pythagoras called to testify, he would tell us that he is the owner of the Pythagoras Accounting Service and that as a professional accountant and auditor he has checked the books and records of Harvester Corporation. He has learned that the gross annual sales of farm equipment by the Harvester Corporation 2 years ago were $7,355,000,313 and that the gross sales of farm equipment by the Harvester Corporation last year were $8,256,090,204.

J. Evidence Summaries

In lengthy, legally complex, or factually complicated cases, timesaving evidence summaries are typically used. In common cases, summaries containing evidence regarding dates, schedules, amounts, and other difficult to recall facts are often prepared. A witness with knowledge can testify that a summary is accurate and complete. The summary is introduced as an exhibit. The judge, arbitrator, or ALJ may prefer or the parties may agree to various types of summaries, including the testimony of a party listing specific injuries, a list of numerous exhibits and their contents, an outline of precise information or detailed damages, or any other helpful summary. An LLM platform can assist in composing evidence summaries derived from the available evidence. See § 1.10(E). These approaches make it easier for the witness to testify and makes oral and documentary evidence more understandable to the fact finder. See § 8.6(K).

K. Admissions

Statements made by an opposing party may be admitted as evidence against that party. Federal Rule of Evidence 801 and similar state rules render admissible out-of-court statements made by an opposing party and out-of-court conduct of that party. In civil cases, admissions occur in documents and discovery responses such as interrogatory answers, deposition answers, and responses to requests for admissions. In criminal cases, admissions made by the defendant may be contained in a confession, which can be introduced through a witness, usually a law enforcement officer who heard the oral or video confession or who can authenticate the written confession.

The party seeking to introduce admissions from an opposing party must affirmatively offer them into evidence. The two primary ways are: as an exhibit or as oral testimony. Under the first method, the attorney offers the statement by introducing into evidence the authentic document or source containing the admission. For example, the offering attorney asks the judge, arbitrator, or ALJ to accept in evidence the relevant statements in the discovery document, marked as an exhibit. Under the second method, the attorney can call the opposing party as an adverse witness and ask the party to admit such statements (excepting a criminal defendant). If the opposing witness denies making the statements, the statements can then be introduced as substantive evidence and/or impeachment. The offering attorney can decide which method is more effective.

L. Former Testimony

Although, a witness testifying in person in open court is the preferred or mandated method to offer testimony, situations arise where witnesses are unavailable to testify during a case. See § 3.6(A). In civil cases, the previous testimony of a witness who is not available may be presented as substantive evidence. The previous testimony must usually be made under oath, at a deposition or hearing, and the opposing party must have had an opportunity to cross-examine the witness at that time. See § 4.15(B). The witness must be unavailable to testify because of illness or death, or more commonly, because the witness is beyond the subpoena power of the tribunal. Section 7.10(A) further explains these situations and procedures. In criminal cases, former testimony is usually inadmissible because of the constitutional right of the defendant to confront witnesses at the trial. In arbitrations and administrative hearings, witnesses unable to be personally present may be able to appear by phone or video conferencing.

M. Judicial/Arbitral/Administrative Notice

Facts that are indisputable or highly authoritative and widely accepted may be introduced through judicial, arbitral, or administrative notice. Notice may be taken of facts known as adjudicative facts, which are facts generally known within the territorial jurisdiction of the forum, or those that can be accurately and readily determined by highly reliable sources. See Fed. R. Evid. 201.

Examples:

Geographic and Historical Facts:

Notice may be taken of the location and existence of places, events, and things, such as streets, intersections, and landmarks. For example, The United States Supreme Court Building can be established as being located in Washington D.C.

Accurate and Verifiable Facts:

Notice may be taken of calendars, census findings, weather reports, and almanac information. For example, a day can be noted as a legal holiday (July 4, Independence Day).

Scientific Facts:

Notice may be taken of scientifically verifiable or undisputed facts such as the laws of nature and scientific certainties. For example, the hot air in an average size law school classroom weighs 1,904 avoirdupois pounds.

The party offering evidence by way of notice must supply the information and request that it be admitted into evidence. Decision makers may also take notice on their own initiative. In court cases, a judge may accept judicially noticed facts at any time during the proceeding and may inform the jury of the facts. In civil cases, judicially noticed evidence is conclusive of the facts and jurors cannot find otherwise. The judge instructs the civil jury that they must find the fact as judicially noticed. The party offering such facts need not introduce any other evidence of the fact. In criminal cases, some judicially noticed evidence may not be conclusive and jurors can find otherwise, and the judge may instruct them that they need not accept or believe the judicially noticed facts.

N. Planning Introduction of Evidence

Form 3.2 provides a useful format to identify and select evidence.

Tribunal Involvement

A. Court Appointed Experts

A court may, on its own motion or on the motion of any party, appoint its own expert witness to testify in a case. Federal Rule of Evidence 706 and similar state rules govern the appointment of court experts. A judge may perceive the need for an expert to clarify confusing points or assist the fact finder in determining certain issues. Judges seldom invoke this rule. Arbitrators are unlikely to have this power. Administrative judges may have this power, especially in regulatory proceedings.

B. Court Witnesses

Judges, on their own motion or on the motion of any party, could call a witness who has not been called by a party. All parties are entitled to cross-examine the witness. Federal Rule of Evidence 614(a) and similar state rules authorize the court to call any person as a witness, with the exception of a criminal defendant. Judges rarely use this rule. An arbitrator is not likely to have this power. Administrative judges may have this power if the hearing is one that is not primarily adversarial.

C. Questioning by the Court

A judge may question any witness. See Federal Rule of Evidence 614(b) and similar state rules. Questioning by a judge occurs more often in bench trials because the judge is the fact finder and less often in jury trials because the judge may not want to interfere with the case presented by counsel. The judge may examine a witness during or after the parties have completed their questioning.

Questioning by judges often depends on how they view their duties and responsibilities. Some judges believe they ought not to ask questions because it is the role of the lawyers to present the evidence, and particularly so in jury trials. Other judges will ask questions if they perceive additional evidence is needed in order to conduct a fair trial or to obtain sufficient information for their findings of fact. Still other judges will ask questions if it is apparent that the advocate for a party is doing a poor job asking questions, while others believe it is wrong to help and favor one party over another. Many judges who do ask questions limit their inquiries to areas that need clarification.

After the judge has finished, counsel may further examine the witnesses on matters covered by the judge. Attorneys have a right to object to questions by the judge, and to the court’s appointment of an expert, and to the calling of a witness. See § 4.5(F) and Fed. R. Evid. 614(c).

D. Questioning by Jurors

In some jurisdictions, jurors are permitted to obtain answers to questions they submit. The jurors can provide written questions to the judge, who reviews the questions and determines if they may be asked. Judges could permit jurors to ask questions orally after the lawyers have completed their questioning, but this opportunity can create problems because the jurors may ask inappropriate or irrelevant questions. If judges permit questions, they usually want to screen them first, and the lawyers may want to object.

Traditionally, jurors do not participate in a trial by asking questions of witnesses. That responsibility is to be performed by counsel and occasionally by the judge. Allowing jurors to ask certain questions may be prohibited by the rules of evidence, and responses or non-responses may unfairly prejudice a party. In criminal cases especially, it may be inappropriate to permit jurors to ask questions.

Permitting jurors to submit questions may assist them in their determination of the facts and it may be worthwhile to do so. Questions reviewed by the judge and lawyers may properly identify vital topics that were not adequately covered and critical issues that rightfully concern the jurors. It is up to the discretion of the judge to permit or disallow questions.

E. COURT APPOINTED NEUTRALS

A judge may appoint an experienced neutral professional to assist with procedural, management, and settlement processes in a case. Some jurisdictions refer to these appointments as a neutral, special master, referee, or judicial adjunct. Federal courts have magistrate judges who assist the district court judge with pretrial matters and, often, settlements. Federal Rule of Civil Procedure 53 and similar state provisions permit judges to appoint neutrals to help with cases involving discovery disputes, complicated issues, technical matters, technology issues, complex damages, accounting matters, or mediation. The services of an experienced neutral commonly save parties time and money, help the lawyers coordinate proceedings, and assist the court in expeditiously and fairly resolving the case. The fees of the neutral are commonly paid by the parties, and the judge may allocate the costs among the parties.

Multi-district litigation cases, multi-party actions, and complex and class action cases often have one or more court appointed neutrals who help the case proceed efficiently and economically. Neutrals may serve a variety of roles including assessing disputed discoverable information, reviewing electronically stored information, identifying documents that are privileged or discoverable, monitoring depositions, providing technological and AI assistance, assisting parties with pretrial procedures, acting as a mediator, managing lawyer conferences, assisting counsel with proposed orders to be submitted to the judge, conducting hearings and recommending factual findings to the court, monitoring a consent decree, or administering the distribution of a monetary settlement. Practical information about the roles of these professionals is available at www.courtappointedneutrals.org.

F. Administrative Proceedings

Administrative judges may be very active or passive in a case. In some administrative hearings, it is the role of the hearing officer to question witnesses, review documents, and raise issues. In other administrative hearings, the ALJ acts similarly to a judicial judge or an arbitrator.

G. Arbitration Proceedings

Arbitrators may ask questions of witnesses to clarify evidence and may ask questions of counsel regarding legal issues. Arbitrators typically cannot raise new issues or call their own witnesses, unless permitted by the applicable rules or agreement of the parties. An arbitrator may ask the parties to submit additional evidence or address a specific issue.

H. Complex and Multidistrict Cases

Cases that are complex or geographically located in more than one jurisdiction present problems that require special procedures. In federal court, the Manual for Complex Litigation provides processes applicable to the management and conduct of cases that are complicated or venued in more than one district. The administration of these large or multi-jurisdictional cases usually begins early and continues through to trial to provide efficient, effective, and economical proceedings.

Federal cases that are filed in different federal districts that have common issues of law and fact may be transferred to one federal judge who administers all discovery and pretrial proceedings. The Federal Multi-District Litigation Panel transfers these cases in accord with the Federal MDL statute. Nationwide or multi-state products liability cases and disaster cases are examples of the same or similar case that is filed by individual or class action plaintiffs in numerous districts against the same defendants. Thousands of cases may be filed across the country, and this method helps coordinate proceedings. The transferee judge assigns lead counsel, liaison attorneys, and a plaintiff’s steering committee to represent the interests of all plaintiffs. Defense counsel may also join together and more easily defend in this singular proceeding. A court appointed neutral or neutrals are usually assigned to assist with the litigation. See § 3.7(E).

There is no similar procedure to coordinate parallel cases filed in different state courts around the country. State court judges in one state have no power over cases filed in other states, and federal judges likewise cannot control state court cases. The state and federal court plaintiff and defense lawyers can and do cooperate with each other in an effort to avoid unnecessary and duplicative litigation efforts. A court appointed neutral can help promote collaboration and coordination among the participants in the various jurisdictions.

Complicated or very lengthy cases may also involve changes in the stages of the trial or hearing and the introduction of evidence. Summation may occur periodically during the trial with the attorney summarizing parts of the evidence as the hearing progresses. The background of witnesses and the qualifications of experts may be introduced through summary resumes. Testimony of key witnesses and experts may be presented through edited videos. Numerous documents may be submitted through evidence summaries. See § 8.6(K). These and other efficient procedures may be used in an effort to reduce the duration of the case and to prevent an overwhelming amount of excessive evidence.

Motions

Any request, oral or written, made by an attorney seeking an order or some relief from a judge, arbitrator, or administrative law judge is or resembles a motion. Some requests may not be formally referred to as motions. During a proceeding, advocates may orally request that something be done or prohibited. Federal Rule of Civil Procedure 7(b) and similar state rules allow oral motions “during a hearing or trial.” These oral motions may be made in the courtroom or in chambers.

Motions are frequently used in litigation. Motions may also be brought in arbitrations (sometimes called “requests”) and administrative hearings (sometimes called “petitions”). Some motions may be unnecessary or unavailable in these cases. The frequent use of motions in litigation is one reason why judicial cases are more expensive and take longer to resolve.

Motions should be brought if the relief sought has a significant impact on the status, progress, or outcome of the case. If the relief obtained from a motion may substantially increase the chance of obtaining a favorable decision, then the motion should be vigorously pursued. If the possible relief has a marginal positive effect, the motion should be reconsidered. LLM’s can assist in identifying and composing relevant motions. See § 1.10(E). Counsel will need to review and craft the appropriate and proper motion submissions.

The specific relief sought in any one motion must be considered in the context of the entire case. If motions are brought on overly technical or minor points, or if too many motions clutter the proceedings, they may have an adverse impact on the case of the moving attorney. An advocate is evaluated by the judge, arbitrator, or ALJ in part on how effectively procedural matters such as motions, requests, and petitions are managed.

A. Motion Documents

Many motions are commonly presented in writing, by serving electronic or paper documents on all other parties and subsequently filing the documents with the forum within a reasonable time or when necessary. Service may be had upon attorneys who represent parties. Service may be made by postal mail, or electronic means, or delivering it to an office, or by other affirmative consent of counsel. See, e.g., Fed. R. Civ. P. 5. Many jurisdictions use and rely on electronic filing and service. In complex or multi-party cases, motion documents may be maintained on an accessible website or server. Personal service on a party or lawyer is unnecessary unless an order to show cause or similar relief is involved. Again, an LLM platform can assist in identifying and composing motion documents, with counsel responsible for submitting the proper motions. See 1.10(E).

Motion documents include the following categories:

1. Notice of Motion

The notice of motion advises all parties of the time and place of the motion hearing, and typically identifies the decision maker who will hear the motion. Anywhere from five to thirty days may be required to give timely notice of the hearing depending on the type of motion and applicable rules. Motions may be heard at a final pretrial or prehearing conference. Sufficient notice should be given to prevent opposing counsel from claiming unfair surprise or prejudice in arguing against the motion. Court rules, arbitration provisions, and administrative law regulations delineate timing and deadlines for appropriate motions.

2. Affidavits and Declarations

An affidavit is a sworn statement of fact made by an affiant to be used as a form of evidence. Affidavits are commonly used in motion practice and are necessary when needed to support or oppose a motion. An affidavit may be from a witness who has personal knowledge of the facts or bases it on information and belief. A lawyer may submit an affidavit who knows of relevant facts or procedures. An affidavit may be created by having the person declare that the statement is true under penalty of perjury (also known as a declaration) or by having the affiant sign the statement in person before a notary public who administers an oath or affirmation.

3. Memorandum of Law

Most tribunals require and most decision makers expect legal authority supporting or opposing a motion. The submission of a persuasive memorandum of law increases the chances that the motion will be granted or denied. Applicable rules determine the type of memo required or permitted. All those hours spent in legal research and writing will actually be worthwhile after all.

4. Proposed Order

Most forums require submission of a proposed order by the moving party. The order makes clear what is requested and enables the judge, arbitrator, or ALJ to grant the motion expeditiously. Some sign the order if it reflects their decision. Others draft their own order, often based on the proposed order. Some orders may need to be independently composed, especially if they contain factual or individualized findings.

B. Opposing Motions

Generally, there is no need for the opposing party to bring a motion seeking to deny the relief requested in the moving party’s motion. Whether opposing counsel should or must submit documents depends on the rules of the tribunal, the timing of the motion, and case strategy. Applicable rules usually state whether the submission of opposition documents is required.

An opposing responsive memorandum of law and a proposed order denying the motion is ordinarily advisable or necessary. The submission of these documents may inform the decision maker of the legal authority to deny the motion and explain why the motion ought to be denied. In many situations, it may also be advisable to submit opposing affidavits. Affidavits may need to be submitted to provide factual opposition or to counter declarations of the moving party that are untrue, incomplete, or inaccurate. Opposing the motion with responsive documents and/or orally opposing the motion at the hearing are typically sufficient to obtain an order denying the motion. An appropriate motion submitted on the eve of trial or hearing may not provide sufficient time for the opposing attorney to reply, making an oral response necessary and available.

§ 3.9 types of Motions

Many motions may be made before or during a trial or hearing. The more common judicial motions include the following:

A. Motion to Amend Pleadings

Procedural rules commonly permit amendments of civil pleadings during the preliminary stage of a case and during a trial or hearing. The motion to amend pleadings early in a case is referred to as amending the pleadings, and is often liberally granted. See Fed. R. Civ. P. 15(a). The process to revise pleadings during the hearing or trial is designated a motion to conform pleadings to the evidence. See Fed. R. Civ. P. 15(b).

This latter amendment is ordinarily allowed if the parties expressly or impliedly consent to the proffered evidence. Express consent means that the parties agree to the introduction of evidence that supports or contradicts a claim or defense not appearing in the original pleadings. Implied consent occurs if a party submits evidence on an issue not contained in the pleadings and the opposing party does not object to its introduction. The introducing party may then move to amend the pleadings because evidence exists to support the claim or defense. The opposing party must make a timely objection to the evidence introduction to oppose the motion successfully.

The requirements of the motion to amend pleadings ensure that one party does not surprise the other party at the trial or hearing. If a party attempts to introduce some new or undisclosed evidence in support of a new claim or defense, the opposing lawyer is usually able to claim undue prejudice and the evidence may be excluded. The purpose of the motion is to permit the introduction of evidence that might be barred by an overly technical and formal application of the pleading rules, and to allow the fact finder to consider all evidence that bears on a related issue in a case. A motion to conform the pleadings to the evidence is used infrequently because the situations that require its use seldom arise.

B. Motion in Limine

A motion “in limine” may seek to exclude from the trial or hearing the introduction of inadmissible evidence. This motion may be made before the proceeding begins in anticipation of certain evidence being offered, or during the case immediately prior to the introduction of such evidence. An in limine motion often requests an advance ruling to prevent the opposing party from offering objectionable evidence during a case. In jury trials, the motion is intended to prevent the prejudicial effect the mere disclosure of such evidence would have on the jurors.

An in limine motion may also ask a judge, arbitrator, or ALJ to permit the moving party to introduce evidence during a trial or hearing without an objection in an effort to avoid the evidence being excluded. Obtaining an advance ruling helps case planning and efficiency. Section 4.5(A) explains motions in limine in detail.

C. Motion for Summary Judgment

A summary judgment motion resolves all or part of the issues in a case and is dispositive because the case or some of the claims or defenses are resolved without a trial. A summary judgment motion is more common in jury cases than in other actions.

Procedural rules and case law establish two grounds for the motion: no disputed issues of material fact exist and as a matter of law a party is entitled to judgment. See Fed. R. Civ. P. 56. If there is no controversy regarding the material facts, there is no need for a trial regarding the facts. The judge may apply the law to the undisputed facts and render judgment. The judge does not decide any facts, but only determines whether or not there are disputed material facts. If there are genuine issues regarding material facts in dispute, the case must go to trial.

Typically, a summary judgment motion (called a demurrer in some jurisdictions) is a pretrial motion brought before the case has been set for trial, most often after discovery has been completed. Summary judgment motions are ordinarily supported and opposed by fact affidavits and discovery responses. In some situations, an oral summary judgment motion may be appropriately made at the final pretrial conference or immediately before the trial begins. If there are supportive undisputed facts and no opposing material facts, then the motion may be timely and proper. Alternative motions that may be available during a trial include a motion to dismiss or a motion for judgment as a matter of law.

A summary judgment motion may be appropriate when there are undisputed facts regarding some of the issues in a case, known as partial summary judgment. For example, in a contract case, facts regarding liability may be undisputed, and summary judgment may be determined by the judge on liability with the damage claim decided by a jury at trial.

Example:

Defendant Sophie Devereaux moves this Court pursuant to Federal Rule of Civil Procedure 56 for a summary judgment on the grounds that no disputed issue of material fact exists and Defendant is entitled to a judgment as a matter of law. Defendant bases this Motion on the attached Affidavits, Plaintiff’s Answers to Defendant’s Interrogatories Numbers 5 to 9, Pages 63 to 81 of Plaintiff’s Deposition, Responses to Defendant’s Requests for Admissions, and on the Memorandum of Law and Proposed Order.

Summary judgment may be sought in a bench trial, although since the judge is the trier of fact a court trial may be a preferred procedure. An arbitration case may not need a summary judgment disposition. The arbitration rules or agreement may include a summary judgment provision permitting its use when needed. Administrative law regulations may permit summary judgment in lengthy or complex cases.

D. Motion to Strike

A motion to strike is made during a trial or hearing in reaction to some objectionable matter such as an improper question by the attorney, an inadmissible answer from the witness, or some inappropriate behavior. The purpose of the motion is to make clear that the improper statement or conduct is to be ignored by the fact finder.

Nothing is actually ever stricken from the record. The reporter does not delete anything when the motion is granted. The record contains the objectionable remark, objection, motion to strike, and ruling. Nothing is stricken so a complete record exists for an appeal where appropriate.

This type of motion may be anachronistic or unnecessary. The objecting attorney does not want what was objectionable stricken from the record. If the objecting party loses the case, that party will want the objectionable matter reviewed based on the record.

In a jury trial, a curative instruction from the judge is necessary and should be requested instead of, or in addition to, the motion to strike. In a bench trial, the motion serves no real purpose because the judge knows that the inadmissible matter cannot be used in the findings of fact. But, even in bench trials, many judges expect to hear such motions. Additionally, for many lawyers the motion to strike is automatic and instinctive, and so they use it in most situations, even if it is practically unnecessary. In arbitrations and administrative hearings, an objection is all that is usually necessary.

E. Motion for a Curative Instruction

A motion for a curative instruction is a request for the judge to advise the jury to disregard some objectionable matter. The curative instruction attempts to repair the harm done by an improper question, inadmissible answer, or inappropriate behavior. The instruction is meant to reduce or avoid any adverse influence the statement might have had on the jury. For example, if an attorney during opening or a witness during testimony refers to inadmissible evidence, the opposing lawyer should object and request an instruction that the jurors ignore that statement.

The use of the curative instruction has advantages and disadvantages. The request by counsel for the instruction calls the jury’s attention to the harmful matter, and the instruction by the judge may reinforce the jury’s memory of it. If an objectionable remark or event is not significant, seeking an instruction may do nothing more than highlight the remark.

If the harmful matter is significant, the instruction should be requested because the jury will have taken notice of the matter. They may be influenced by the improper comments but, with a curative instruction, will ordinarily not rely on such information in forming a verdict. If the matter is severely objectionable, a motion for a mistrial should be made. Section 4.5(I) explains the use of curative instructions in detail.

F. Motion for Involuntary Dismissal

In a bench trial, arbitration, and administrative hearing, after the presentation of evidence by the plaintiff/claimant/prosecutor, defense may move for dismissal of the case on the ground that no right to relief has been shown or the asserted claims have not been proven. Usually, the motion is made orally after the opposing party rests. In court cases, this motion is used in bench trials and not jury trials. Fed. R. Civ. P. 41(b).

In deciding whether to grant the motion, the judge, arbitrator, or ALJ usually asks the moving attorney to identify what elements or facts supporting the cause of action have not been proven. The ruling on the motion may be made at that time, or reserved until the close of all the evidence. This motion requires a determination that the evidence is sufficient to present a question of fact for the fact finder. In making this decision, all the evidence and every reasonable inference must be viewed in favor of the plaintiff/‌claimant/‌prosecutor. This determination is the same standard applicable to a motion for judgment as a matter of law or directed verdict motion in a jury trial.

The motion for involuntary dismissal is occasionally granted, for all or some of the claims. In a bench trial, the judge, as the fact finder, usually decides the case on the merits by weighing the evidence and determining the credibility of the witnesses. A motion to dismiss does not permit the judge to weigh the evidence or assess witness credibility. In civil cases, seldom are judges prompted to grant motions to dismiss.

Arbitrators and administrative judges are similarly disinclined to grant the motion unless it’s clear there’s no need to hear additional evidence. Criminal cases, with the higher burden of proof, may involve insufficient facts to support a judgment and prompt a judge to grant the motion. Many judges prefer to resolve cases with a judgment on the merits after a full trial and not a dismissal motion. An order granting a dismissal motion operates as an adjudication on the merits which has the same effect.

G. Motion for Judgment as a Matter of Law

In jury trials, a motion to challenge the legal sufficiency of the evidence may be brought at the close of a party’s case or after the close of all the evidence. This motion may be called in various jurisdictions: a motion for a judgment as a matter of law, or for a directed verdict, or for a dismissal for failure to prove a prima facie case, or for a nonsuit, or, in a criminal case, for a judgment of acquittal. In federal civil cases and most state court cases, the motion is designated a “judgment as a matter of law” (abbreviated JMOL or JAML). See Fed. R. Civ P. 50. The motion asks the court to direct a verdict on the ground that the opposing party has not proven the facts or elements of law supporting the claim or defense and there is no need for a jury verdict.

Any party may bring such a motion. Ordinarily, after the plaintiff rests, the defendant automatically brings the motion. Likewise, after the defendant rests, the plaintiff usually brings this motion. After rebuttal, or at the close of the evidence, the defendant renews the motion.

This motion may be made when a party has sufficient grounds to support the motion or must be interposed where the rules of a jurisdiction require it to be made in order to preserve the opportunity to bring the motion after a verdict is returned later in the case. See § 12.5(C). The moving party must state the specific grounds supporting the motion.

The motion creates a question of law regarding whether sufficient evidence exists to support a verdict for the nonmoving party. The precise grounds for granting or denying the motion vary among jurisdictions. Typically, in deciding a motion, the judge cannot weigh the evidence or determine the credibility of the witnesses, and must instead draw all reasonable inferences and view all the facts in the light most favorable to the party opposing the motion. If any evidence exists to support the opposing party’s version of the case and if a reasonable person could possibly find in favor of this party, then the judge will deny the motion.

Judges seldom grant these motions because the losing party is deprived of a jury determination on the merits. A trial court holding will be more likely affirmed by the appellate court if the judge submits the case to the jury and then rules on the sufficiency of the evidence in a motion for judgment as a matter of law or for a judgment notwithstanding the verdict after a jury has returned a verdict. Denying the earlier motion allows the judge, in effect, to defer ruling until the jury decides. If the jury decides in favor of a party that has produced insufficient evidence as a matter of law, then the judge may correct the jury’s error and grant the subsequent motion. See § 12.5(C).

In some forums, a motion may be brought after the opponent’s opening statement if the opening makes no reference to facts supporting the party’s assertions. In making this motion, the attorney can specify what elements or facts have not been proven. The other party may then rebut this position or seek leave of the decision maker to refer to additional evidence.

H. Motion for Leave to Reopen a Case

If a motion dismissing the case or granting judgment is allowed, the losing attorney may move to reopen the case to present additional existing evidence. Judges, arbitrators, and ALJs usually grant this motion if the evidence is readily available and substantial enough that it may affect the outcome. Tribunals prefer that cases be decided on the merits based on all available evidence and not upon inadvertent oversight by counsel.

I. Motion for Mistrial

Incidents may occur during a jury trial that give rise to a motion for a mistrial. Grounds that support a mistrial motion include statements or conduct by counsel, witnesses, jurors, officials, or the judge that:

• Are substantially and unfairly prejudicial.
• Constitute gross misconduct.
• Intentionally violate a court order.
• Provide false material evidence.
• Have a severely adverse effect on the outcome of the case.
• Result in significant irregularities in the proceedings.
• Deliberately and unfairly attempt to influence a jury.
• Otherwise make a fair trial impossible.

These and related errors are the same as the grounds for a new trial after a verdict. Examples of mistakes supporting a mistrial motion include: counsel intentionally making inflammatory remarks, a witness testifying to inadmissible and unfairly prejudicial evidence, a judge making improper comments manifesting a bias in favor of a party, and juror misconduct.

The grounds for a mistrial must be so severe and uncorrectable that a party is denied a fair trial. The mere occurrence of misconduct is not sufficient to support the granting of the motion. The transgression must negatively influence the jury to a significant degree that adversely affects the substantial rights of a party. The unfavorable effect can ordinarily be reduced by providing the jurors with a curative instruction to disregard the errors or misconduct and by admonishing the offending person.

The status of the case influences both an attorney’s decision to move for a mistrial and the judge’s ruling. If an attorney perceives that the case is going well, moving for a new trial may not be advisable. If the attorney believes the case is not going well, the attorney may want to pursue a mistrial motion. A trial judge is not likely to terminate a lengthy trial because of the time and effort invested. A trial that is in its early stages stands a better chance of a judge granting a mistrial motion.

Few cases result in a mistrial. In a criminal case, the constitutional rights of a defendant coupled with prosecutorial misconduct may properly justify the granting of a new trial. In civil cases, curative instructions and admonitions usually remedy the damage done. The granting of a mistrial motion results in a new trial. See § 12.5(E).

J. Motion to Reconsider

Once a motion is decided, that ruling is the law of the case, and it cannot be changed by asking the judge, arbitrator, or ALJ to rethink and change the decision. The decision is final and controlling. For example, even if another judge becomes the presiding judge, the previous ruling is still the law of the case, and a party does not get another opportunity to try and win a motion just because there is a different judge.

Decision makers ought not to be asked to do things twice, and they may summarily deny motions to reconsider or may even consider them frivolous and harassing. The primary ground—and sometimes only legitimate ground—for reconsideration is that the law changed between the time of submission and the decision that controls the motion. It is usually not sufficient that the law changed after the decision, unless it is clear that the new law is retroactive. In extraordinary situations, it may be that a decision was based on untrue facts or the wrong law, and a reconsideration motion may be appropriate.

A party may be required to bring a motion requesting the opportunity to bring a motion to reconsider, before actually submitting the reconsideration motion. A losing party naturally may believe a wrong has occurred, but that is not a sufficient reason to seek such relief. A party must have a compelling and legal reason that supports a reconsideration motion.

K. Additional Motions

Many other motions may be made during a case as explained in other sections, including:

• Motion to recuse or disqualify a judge. § 3.3(B)
• Motion to disqualify counsel. § 3.5(M)
• Motion for a bench or a jury trial. § 2.8(B)
• Motion to conduct jury selection. § 5.1
• Motion to strike a juror for cause. § 5.8(A)
• Motion for a reporter to record proceedings. § 3.12
• Motion to sequester witnesses. § 3.6(D)
• Motion for recess or adjournment. § 3.2
• Motion to limit testimony of witness. § 3.6(A)
• Motion to alter order of witnesses. § 3.6(B)
• Motion to exclude testimony or exhibits. § 4.3
• Motion to preview video or digital evidence. § 3.6(D)
• Motion to review electronic document evidence. § 8.4(C)
• Motion to make offer of proof. § 4.5(B)
• Motion to receive testimony or exhibits. § 4.5(A)
• Motion for judicial notice. § 3.6(M)
• Motion to instruct jury. § 2.10
• Motion to sequester jury. § 12.3(B)
• Motion to poll jury. § 12.4(A)
• Motion to discharge jury. § 12.4(B)

Post-trial motions are explained in Sections 12.5 to 12.8 and include:

• Motion for judgment as a matter of law (federal courts).
• Motion for judgment notwithstanding the verdict (j.n.o.v.) (some state courts).
• Motion for new trial.
• Motion for acquittal.
• Motion for amended findings of fact, conclusions of law, and order of judgment.
• Motion for additur (state courts).
• Motion for remittitur.
• Motion for a stay of entry of judgment.
• Motion for a stay of judgment.
• Motion to enforce judgment.

Motion for interests and costs.

• Motion for attorney fees.

A law based LLM can provide information and suggestions for these and other potentially relevant motions. The ultimate decision on what motions to submit rests with counsel. See § 1.10(E).

§ 3.10 MOTION ARGUMENT

Judicial rules, arbitration provisions, and administrative regulations govern respective motion proceedings. These sources determine whether a hearing is allowed for counsel to present and oppose a motion. The argument may be conducted in person in a court or hearing room or remotely via video conferencing or by phone.

For motions where oral argument is not permitted, the submitted documents will be the primary basis for the granting or denial of the motion. Section 3.10(Q) explains how best to draft these submissions. In some cases, counsel may be permitted to argue through email exchanges or online. An advocate who prefers to orally argue a motion may request a hearing, which may be granted or denied.

A. Available Time

Whether a specific time limit is set for a motion argument depends upon the judge, arbitrator, or ALJ. Some tribunals schedule motions for a specific and limited amount of time; other forums schedule motions in sequence and allow attorneys a reasonable time for argument. The amount of time allocated often depends on the importance of the motion. The advocate must decide how much time is necessary and how the available time should be used. If more time for argument is needed than is allocated, the lawyer may request additional time.

B. Familiarity with Motion

An attorney must ascertain whether the judge has read or is familiar with the motion, the case, and the applicable law. Federal judges and many state judges review the file before the hearing. Others do not have time to do so in depth. The extent of the judge’s familiarity with the motion determines the content of the motion argument. If a judge is not familiar with the motion, then the moving attorney must inform the judge about the motion. Otherwise, the judge may spend the first few minutes looking through the documents rather than listening to the beginning of the argument.

A judge who is familiar with the case may not need much background information about the motion. The extent of a judge’s preparation may be learned from experience, by contacting the law clerk and inquiring about the judge’s preparation, or by simply (and diplomatically) asking the judge if the judge had sufficient opportunity to review the motion. Arbitrators and administrative judges are usually familiar with the motion documents.

C. Supporting Memorandum

Almost all tribunals require or expect that a memorandum of law, a summary brief, or citation of authorities be submitted in support of a motion. Motion memoranda are usually submitted prior to the oral motion argument, but may also be submitted after the argument if some issues were raised during argument that need briefing. An attorney may also suggest that a memorandum and reply be submitted, or a judge, arbitrator, or ALJ may request submissions from the attorneys.

A memorandum should be concise and contain a summary of the vital facts and the legal authorities supporting the motion. A short memo that identifies the issues and supporting legal authorities and citations or highlighted copies of cases or references, or links to judicial opinions, statutes or rules is often sufficient. A lengthy, detailed memo should be reserved for significant or complicated issues. An LLM can assist with the composing of memorandums, with counsel reviewing and completing the final draft. See § 1.10(E). The extent of the memo should be commensurate with the nature of the motion and the case. See § 3.4(E).

D. Opposition Memorandum

Submitting a written memorandum in opposition to a motion is required in many forums and expected in many others. An opposing memorandum should obviously explain why the motion should be denied. An effective reply memorandum should explain the position of the opponent in a positive way and address and refute arguments made in the opponent’s memorandum.

This refutation should provide compelling reasons why the motion should be denied and can focus on revealing weaknesses and mistakes, such as: factual misstatements or omissions, legal errors, inadequately supported conclusions, inappropriate issues, illogical arguments, inconsistent positions, and concessions. An opposing memo covering all issues need not always be submitted. Some positions advanced by the other side deserve no rebuttal while some may be rebutted during oral argument.

E. Location of Presentation

Trial motions are argued in the courtroom or judge’s chambers. Most judges prefer the formality of a courtroom. Some judges prefer to discuss the merits of the motion on an informal basis in chambers, where the lawyers and the judge are seated around the judge’s desk or a conference table. For presentation of a courtroom motion, the lawyer, if able, usually stands and argues before the judge who sits behind the bench. If the attorney believes that the presentation or determination of the motion would be enhanced by arguing in either the courtroom or chambers, the attorney should make that request of the judge.

Counsel may appear in person or by telephone or video transmissions if they are distant from the court. It is wise to seek the approval of the court ahead of time to appear other than in person so the judge can make the technical necessary arrangements. Arbitration and administrative law motions may be similarly argued in person in a hearing room or through video conferencing or by phone.

Some courts and tribunals presently mandate by rule that certain motions only be heard remotely and others in person. Non-dispositive motions and those not involving evidentiary matters may be required to be heard remotely, even if counsel is local. And motion hearings involving critical dispositive and evidentiary issues (such as summary judgment) or the presentation of evidence (such as preliminary injunction motions) are to be conducted in person. Counsel may request a variance from these rules if an alternative hearing is preferred.

F. Sequence of Arguments

The moving party usually argues first followed by the opposing party. Rebuttal arguments by both advocates are often permitted as long as the statements are responsive and not repetitious.

G. Recording of Presentations

The practice of recording the oral arguments of attorneys varies among jurisdictions and judges. There may be no reason for the argument to be recorded. In such instances, the attorney need not be concerned with the making of a record. But if the attorney wants a record made, the presence of a reporter should be requested. Arbitration motion arguments are commonly not recorded. Some administrative motion arguments may be recorded and usually will be in cases involving significant issues.

The making of a record influences the tenor and content of statements made by the participants, and reduces injudicious or extraneous statements. A record preserves everything that is requested and argued and that may be decided. Further, a transcript can be used to present grounds for a new motion or an appeal and can be made available for a client who is not present. An alternative to having the reporter present is to argue the motion off the record, and then have a record made containing the ruling on the motion and perhaps a concise summary of the arguments.

§ 3.11 Motion Argument Techniques

Oral motion argument techniques do not differ significantly from other oral argument situations. A successful presentation in support of or in opposition to a motion must address the following questions:

• What information does the judge, arbitrator, or ALJ need to decide the motion in favor of your client?
• What issues need to be addressed in order to succeed and how can you best address them?
• What questions may be asked and how can you most favorably respond?
• Have you clearly explained the relief your client seeks or needs? Is the relief the same as in your submissions? Should it be modified or compromised?

After considering appropriate and effective responses to these questions, a presentation can be planned.

A. Brevity

Be brief!

B. Conversational Approach

Many lawyers present motion arguments in a formal manner, as if they were in a debate or making an appellate argument. This approach may not be as effective as a conversational approach in which the attorney converses with the judge or arbitrator or ALJ and invites questions. To be an effective advocate in this situation, an advocate must adopt a persuasive style, display familiarity with the facts and the law, demonstrate confidence, and successfully answer questions. Rapport, eye contact, facial expressions, voice tone, pace, and available exhibits or visual aids influence the effectiveness of the presentation.

C. Preface

The moving attorney who speaks first will usually want to include as a preface a short description of the relief sought, the motion, and its grounds to remind the decision maker about why the lawyers are there. Judges, arbitrators, and ALJs want to know specifically what they are expected to decide. The moving attorney may also provide some background regarding the case and its procedural history. Most court rules require that the lawyers confer before the motion is filed or argued in an attempt to resolve the motion dispute. And, the decision maker may want to know what efforts the lawyers made and why they failed. Opposing counsel may supplement any of this information.

An advocate should preface an argument with a brief outline of what will be covered. A presentation is more easily followed when the topics are listed that will be discussed. The decision maker may suggest that certain matters need not be covered because of familiarity with them or may have already resolved them. Questions may be asked of counsel immediately or postponed until an issue is reached during the argument.

D. Structure

The presentation following the prefatory remarks made by an attorney must be structured in an effective, persuasive manner. The optimum order for an argument depends significantly on the type of motion presented. Any lengthy argument must be carefully structured so that it can be easily followed. The relief stated in the proposed order, the grounds for the motion, issues addressed in the memorandum, statements in affidavits, and the contents of other motion papers may provide a useful outline. The structure should allow the advocate flexibility to address issues the decision maker deems important and to respond to questions.

E. Substance

What relief is requested and what an attorney says obviously depends upon the type of motion presented. The presentation should contain an explanation of the facts and the law mixed with reason, logic, fairness, justice, and the humanistic aspects involved. Considerations that increase the successful planning and presentation of an argument include:

• Is the motion a routine request, or a common application, or an unusual demand?
• Should the soundest position be asserted first, with the second strongest position last, and other or weaker positions explained in between, or not mentioned?
• Should key words, phrases, or positions be emphasized throughout the argument?
• Should the circumstances causing the motion to be brought be mentioned?
• Should the failure or refusal of the opposing attorney to cooperate with the moving attorney in resolving or compromising the issues of the motion be mentioned?
• What should be excluded from the presentation that was adequately covered in the submitted documents?

F. The Law

Legal explanations should be accurate and understandable. Advocates lose their credibility and arguments lose their effectiveness because the applicable law is exaggerated or explained in a confusing way. An attorney should carefully select and describe the supporting law.

Leading cases, relevant statutes, and persuasive quotations should be used when necessary. Cases from other jurisdictions and peripheral legal authorities should be avoided, unless there is no supportive precedent in the jurisdiction. Legal issues should be highlighted if they can be explained more effectively in oral argument than in a brief. Legal explanations that can be effectively and sufficiently presented in a memorandum need not be repeated orally, unless the arguments need clarification or emphasis.

References to the law should also be concise. Quotations from cases or statutes should be woven into an argument and not be read at length. Case quotes and specific citations should be provided in the brief.

G. The Facts

Motions may require that relevant facts need to be addressed and explained. Some motions may primarily revolve around questions of law, and the facts may not require much attention. Supportive facts are often presented by submitting affidavits that contain the relevant and necessary information. Some motion hearings involve the presentation of live or video witness testimony and exhibits. Such evidence offered during a motion hearing usually mirrors witness direct and cross-examinations.

H. Factual Descriptions

A description of the facts should include a complete and accurate recitation of the relevant supporting evidence. Advocates need to focus on factual information that appears in an affidavit or in a document and avoid referring to facts that appear outside the record. Attorneys should not testify during argument or exaggerate the facts to match a point of law. These tactics backfire because the inherent weaknesses of such positions become apparent to the decision maker.

I. Notes/Outline

Notes outlining the essential points of a presentation may be used as a guide. An argument should not be read. The motion and legal memorandum can act as an outline of points. The absence of notes may indicate a lack of preparation by an attorney and may make a complete and logical presentation difficult. The use of notes should not detract from the presentation. Attorneys should be flexible and not be overly focused on their notes, because they hopefully will be interrupted with questions. Advocates need to be so well prepared that interruptions or questions do not fluster or confuse them. References to prepared notes may help in responding to unanticipated matters.

J. Exhibits

Exhibits, including real and demonstrative documents and evidence, or visual aids such as diagrams, charts, graphs, power point presentations, and computer generated exhibits may assist a presentation, and may help the decision maker understand an argument. Exhibits should be used if they enhance the persuasiveness of an argument. See Chapter 8.

K. Interruptions

An attorney should avoid interrupting opposing counsel unless absolutely necessary. Interruptions are unprofessional and discourteous, unless statements are extremely prejudicial or grossly mischaracterize a critical matter and require immediate correction. Advocates who make unnecessary interruptions are likely to be admonished. A more effective approach is to note any misstatements and comment on them when the advocate has an opportunity to respond.

A lawyer should direct all statements to the judge, arbitrator, or ALJ and avoid arguing directly with the opposing attorney, however tempting. Some situations may require that an advocate request that opposing counsel be directed to apologize for a remark or be admonished for making disparaging or mendacious statements.

L. Opposition Weaknesses

A presentation should contain explanations about weaknesses in the opponent’s case or wrong positions taken by the other side. This requires an attorney to anticipate positions advanced by an opposing lawyer and counter those points during the argument. If this is not possible or appropriate, rebuttal will afford an opportunity to expose the flaws in the opponent’s case. An argument sounds more persuasive if made in a positive, constructive manner. A defensive, negative argument that merely attacks the opposition may be inadequate and unconvincing.

M. Candor and Compromise

An attorney must be candid during an argument, while zealously advocating a client’s position. If a decision maker has broad or limited discretion to grant or deny a motion, counsel should not argue the absence of discretion. If the facts and supporting law provide an opposing party with a sensible position, an advocate should not unfairly criticize a reasonable position or assert that precedent clearly mandates the opponent lose. The positions asserted by the advocate should reflect prevailing law and rules.

An attorney may also have to compromise during a motion hearing. The decision maker may view the hearing as an opportunity for the lawyers to accept an alternate solution or negotiate a resolution to the problem. Advocates who maintain firm positions during a motion hearing may need to be prepared to propose or accept alternative positions to resolve a matter. A motion hearing may allow the decision maker to offer a compromise solution to the problem counsel were unable to resolve.

N. Responding to Questions

Questions asked by the judge, arbitrator, or ALJ should be answered at the time asked. Decision makers expect prompt responses. Lawyers should answer questions directly and completely. Rarely, if ever, should responses be postponed or evaded. Counsel should frankly admit to not knowing an answer if that is the situation.

Questions should be encouraged, invited, and welcomed. An attorney may want to ask if the judge, arbitrator, or ALJ has any questions. It is critical for the advocate to ascertain and address the issues the decision maker is considering, and inviting questions is an effective way to do so.

Efforts should be made to provide answers in a light most favorable to the client’s position. An advocate must be prepared, if necessary, to concede a point to avoid unnecessarily arguing an issue. A concession should be put in proper perspective, and counsel should move on to a supportive point.

O. Involving the Decision Maker

The attorney should advance an argument in such a way that may engage the decision maker in the presentation. Some judges, arbitrators, and ALJs are inclined to be active while others are more inclined to be passive during oral argument. An effective presentation by an advocate often develops an interchange between that attorney and the decision maker. The more the decision maker becomes involved in a hearing, the more likely the motion may be understood and hopefully rightfully decided.

P. Rulings

At the conclusion of a hearing, the matter is often taken under advisement and a ruling occurs at a subsequent time. For some motions, the decision maker will rule immediately and orally on an available record. If a proposed order has been submitted, it may be promptly signed.

As explained previously, a ruling and order become the law of the case and may only be reconsidered in very limited circumstances. See § 3.9(J). Most rulings and orders are often interlocutory orders and may be later appealable along with the final decision or judgment entered in the case. Some final rulings or orders, which involve significant dispositive issues, may be immediately appealable. See § 12.9(F).

The decision whether to grant or deny the motion is not always based primarily on the law and the facts of the case. Other considerations may influence a determination. Some decision makers believe that a case ought to be settled and realize that if a motion is decided in a certain way, settlement will be more likely to occur. Others believe that one party has a much stronger case than the other party and may rule on a motion to increase the chances that the party with the stronger case will prevail. Motions provide an opportunity for a decision maker to influence the result of a case, and some will take advantage of this opportunity.

Q. Written Presentations

For those motions not allowed to be argued orally, the written brief may need to be composed to reflect the absence of oral argument. The questions that need to be addressed are:

• What would have been stated in oral argument that is not contained in the initial draft of the brief?
• Is there an argument that seems inappropriate for briefing but appropriate for oral argument that needs to be included?
• What, if anything, is being left out of the brief that would have been argued at a motion hearing?
• Might the decision maker have questions the answers to which are not addressed in the brief?

The responses to these questions may require the brief to be redrafted, if it is the sole means an advocate has to present an argument. It may well be that the primary purposes of motion arguments are to allow decision makers an opportunity to ask questions and to increase their chances of fully understanding why the motion should be granted or denied. The revised brief will need to explain what oral argument could have explained.

§ 3.12 Presentation to a Judge/Arbitrator/ALJ

This section discusses additional considerations applicable to making a case presentation to a judicial judge, arbitrator, or administrative law judge. These individuals are professional decision makers, having made decisions before in similar cases. Jurors are usually first time legal decision makers and some advocacy approaches that are effective with them will not be effective with professionals, especially if the professionals have heard the same approach in previous cases. Gen AI can assist with the planning and composition of case presentations, with counsel composing and presenting the final presentation. See § 1.10(E).

A. Opening Statements

An opening statement should be made unless the judge, arbitrator, or ALJ is very familiar with the case and it will serve no purpose. A discussion with the decision maker before the start of the trial or hearing—in which the theory of the case and the significant facts and issues have been discussed—may be a sufficient substitute for an opening. If an advocate believes the decision maker knows more than enough about the case to proceed to the presentation of evidence, then an opening may be unnecessary. Advocates commonly prefer to make an opening statement, even a brief one, because of the informative and persuasive impact it has. In some administrative hearings, an opening may not be permitted. And if a trial judge or arbitrator insists one is not needed, it may be ineffective for advocates to offer one. Section 6.1 explains the effective use of openings.

B. Evidentiary Rulings

The judge, arbitrator, or ALJ who must decide both the facts and the admissibility of evidence may have a difficult time avoiding the influence of some inadmissible evidence. In deciding whether to admit or deny the introduction of evidence, decision makers must understand the purported evidence. They may not rely on inadmissible evidence in making factual findings, but they may have some difficulty disregarding its impact, and they may have to hear an offer of proof. See § 4.5(B).

Fact finders are more inclined to admit evidence than to exclude it. They may need to know or be curious about the information. Judges, arbitrators, and ALJs realize that appellate courts are more likely to overturn their decision if key contested evidence is omitted than if it is admitted. Many of the exclusionary rules of evidence, discussed in Chapter 4, are primarily designed to restrict the introduction of evidence in jury trials and not bench trials, arbitrations, or administrative hearings.

C. Introduction of Evidence

The presentation of evidence through witnesses and exhibits must be done in as persuasive and effective a way as possible. Some attorneys are less formal and less careful in presenting evidence to a judge, arbitrator, or ALJ, but this approach can result in an inadequate presentation. Professional decision makers need to hear all relevant evidence as well as testimony that establishes the credibility of witnesses. See Chapter 4.

On direct examination, advocates may tend to ask leading questions to speed the case up or may eliminate foundation questions because the judge, arbitrator, or ALJ has heard similar facts in previous cases. However, it is critical to the determination of witness credibility for the professional decision maker to hear the witness testify and not counsel who asks leading questions. Moreover, it is vital for decision makers to hear compelling evidence, and not just a summary version, to make sure they understand the complete and accurate factual stories.

On cross-examination, some areas of cross may not need to be as thoroughly examined with a judge, arbitrator, or ALJ as they would need to be with a jury. For example, impeachment with a prior inconsistent deposition statement need not include questions that explain deposition procedures. If a professional decision maker understands what occurred, cross-examination to establish detailed background may be unnecessary.

D. Summation

An advocate needs to craft a closing argument that contains persuasive reasons and has a compelling impact on the judge, arbitrator, or ALJ. The professional decision maker may most likely be leaning in favor of one party or may have already decided the case before closing arguments. A summation must be presented in a way that assists and persuades the decision maker to interpret and apply the facts to the legal elements in favor of the advocate’s client. Questions may be asked of the attorneys during summation, usually regarding unresolved matters. It is wise for counsel to be prepared for and invite such questions. See Chapter 11.

Some closing argument approaches may be inappropriate or ineffective if delivered before a professional. There is no need for a lawyer to engage in an explanation of basic legal elements. Further, an explanation about our legal system or an overly emotional plea will not have a favorable impact on a professional who has heard that before.

Summation ought to be presented in a most eloquent and thought-provoking manner, with conviction and appropriate passion. An advocate should not underestimate the persuasive impact of a closing argument before a professional. If the attorney can present a compelling reason why the client should win—especially a reason that the judge, arbitrator, or ALJ has not thought about before—the chances of succeeding may dramatically increase. If the lawyer can craft a novel insight into the facts or law, then it should be proffered. If the advocate can explain why a client deserves to win, which explanation has previously eluded the decision maker, then summation will have served its purpose.

E. Findings of Fact, Conclusions

of Law, Orders

In a bench trial, the judge must complete findings of fact, conclusions of law, and an order for judgment. See, e.g., Fed. R. Civ. P. 52. Procedural rules may require attorneys to submit proposed findings, conclusions and an order, or the judge may request that the attorneys do so. Arbitrators who have to render a detailed award and administrative judges who have to issue an explanatory decision may also have to compose findings and conclusions. An example of findings, conclusions, and an order appear in Section 2.12.

Tactically, it is advisable to submit findings and conclusions because they provide the decision maker with a summary of the party’s case and the specific relief sought, and they may favorably influence or assist the making of the correct decision. Section 12.5(H) describes the use of a post-trial motion to amend findings and conclusions. And, an LLM can assist counsel with planning and composing findings, conclusions, and orders. See § 1.10(E).

Making a Record

A. Purpose

The primary purpose of making a record is to establish and preserve grounds for review and appeal. The trial judge is able to review prior arguments, hearings, events, and rulings. An appellate case record usually consists of a transcript of the proceedings, exhibits, instructions, verdict form, pleadings, motions, memoranda, orders, judgment, notice of appeal, and any other filed documents. See Fed. R. App. P. 10. Final and binding arbitration proceedings may not be recorded because there is no appeal available based on facts. Administrative proceedings that are appealable commonly retain an appropriate record. See § 3.12(F).

The attorney must continually be aware of the need to make the record complete for possible appellate review. Appellate courts may not consider anything other than the record below when making a review. Appeals can be lost due to faulty or incomplete records.

Most appellate courts require compliance with certain procedures to properly raise an issue for appeal. Typically, the record must reflect:

• The ruling, order, conduct, or event creating the grounds for appeal;
• An objection by the attorney to an error in the case;
• If an objection has been sustained, an offer of proof showing what the evidence would have proven;
• In a jury trial, a request for a curative instruction by the judge if the error occurred within the hearing of the jury; and
• The submission of a post-trial motion, identifying the error and requesting a new trial or hearing.

These requirements are intended to prevent appeals unless the attorney properly objects during the case and provides an opportunity for the trial judge to correct or reduce the impact of the error. Some issues, such as the sufficiency of the evidence to support the findings, may be appealable even if an objection was not made. If “manifest injustice” could result from the denial of an appeal, it will be allowed even if issues have not been properly preserved.

There are several conditions that must be met for an appellate court to reverse a ruling:

• The ruling must be an error;
• The error had been objected to by the advocate;
• The mistake was preserved in the record;
• An effort, if appropriate, was made to try and correct or alleviate the error;
• The error was not cured or waived or abandoned; and
• The error must have been unfairly prejudicial.

B. Complete and Accurate Record

The advocate must ensure that all written and oral rulings, orders, findings, verdicts, and judgments are included in or entered on the record during all stages of the trial or hearing. Also, advocates may prefer to have the reasoning behind the ruling specifically reflected in the record, unless it is apparent or obvious. In some situations, the losing party will not want the reasoning to appear either because a well-reasoned decision may make it more difficult to win on appeal or because the losing party intends to argue abuse of discretion. The advocate should review the record periodically throughout the case to make certain that a complete and proper record is being maintained.

C. Reporter

The general rule is that if an appealable case is worth trying, all proceedings should be recorded so a transcript will be available. If there is no record, there is no transcript nor recorded grounds supporting an appeal. The presence of a recording also holds the participants accountable and causes them to be more careful, thoughtful, and professional.

In court cases, a reporter ordinarily maintains a record. In federal courts and most state courts, reporters are available during all stages of the case. In some jurisdictions, the court reporter may not routinely be available for pretrial proceedings, and the advocate should contact the court ahead of time to make certain a reporter is present if needed. Budget constraints in some jurisdictions may affect the availability of a court reporter. In other jurisdictions, the trial advocate may be responsible for making certain a reporter is available. Some jurisdictions are using audio or video recordings in lieu of a court reporter transcription.

Electronic recordings, computer-assisted transcriptions (CAT), and Gen AI may be available to supplement or supplant the work of a court reporter. Recording systems with voice recognition software may be able to record what is said. A CAT system enables spoken words to be captured and converted into text that instantaneously appears on monitor screens. Evolving technologies provide alternative methods to record proceedings which reporters can explain and make available.

A court reporter or reporting system should be present for all case proceedings, including everything that occurs in the courtroom and in chambers. Not all judges and jurisdictions follow this general rule. In many cases, court reporters are present only at the conclusion of discussions or proceedings held in chambers and only transcribe a summary of the motions and rulings. The judge typically provides such a summary, supplemented by comments from the attorneys. The advocate should make certain that any matter that may be an issue for appeal is fully reflected in the summary transcription. In some jury trials, a reporter may not be present during jury selection. Anticipating that something may happen that may need to be preserved for appeal, the advocate should request that a reporter be present to record all questions and responses and arguments.

The creation of a record as a basis for an appeal presumes there will be an appeal and perhaps suggests that parties requesting or demanding a recording believe they may lose. Otherwise, why the need for a record? Preserving the record is a normal and expected case event and the notion that a party anticipates losing ought not to be a concern. Moreover, the winning party likely wants a complete record because the victorious party may have an appealable issue whether or not the losing party appeals.

If a judge refuses to honor the request that a reporter be made available, the advocate can ask that an independent reporter, to be paid by the party, be obtained. If this request is denied, the attorney should make every effort to preserve the ruling regarding the denial of the reporting. The advocate can ask the judge to sign a written order denying the motion for a reporter, or when a reporter is present at the next stage of the case, ask permission to summarize on the record the previous motion and ruling.

If a recalcitrant judge refuses to grant the attorney permission to comment on the record (even by threatening contempt if counsel tries to place information on the record), the only available avenue the attorney may have is to compose an affidavit summarizing the events and offer the declaration into evidence as a case exhibit. Determining what to request and what to do is a matter of judgment and discretion for the advocate.

D. Log of Case

A case log is a summary listing of the stages of the case. A log can identify the stage of a case, the date of an event, and a concise explanation of what happened or why a transcript might be needed. An advocate may not need or want to pay for the costs of an entire transcript for an appeal. It is helpful for attorneys to maintain a log of the transcribed proceedings to assist in determining what portions of the transcript should be ordered. Recordings that are electronically preserved may include a search function allowing for ready access to portions of a transcript. These options include simultaneous and daily transcripts and logs. See § 3.9[C].

E. Assisting the Reporter

The reporter is responsible for making sure that a complete record is made. Counsel can assist in the creation of an accurate record by:

• Speaking clearly and having the witnesses speak clearly.
• Avoiding speaking simultaneously with others.
• Proceeding at an appropriate pace.
• Spelling difficult names and words or providing a list of them.
• Providing any necessary information to assist in understanding the case and the identity of witnesses.
• Not blocking the view of anyone in or interfering with the recording system.
• Avoiding superfluous comments (O.K., let me ask you this, I see), repeating answers, and making unnecessary comments.
• Properly referring to exhibits by number or letter and providing for exhibits to be attached to or included in the record. Section 8.5 describes the handling of exhibits.
• Confirming that any computer and electronic devices are working so a complete and correct record is maintained.
• Describing all conduct, gestures, inaudible responses, nonverbal behavior, and any other event that may not appear on the record. The attorney may be expected to ask permission to have the record reflect what occurred. For example, counsel may preface the description with the phrase: “Your Honor, may the record reflect that. . . .” Or the lawyer may describe or summarize what occurred.

The judge controls going on and off the record. If an attorney wishes that something not be on the record, the attorney should ask permission to go off the record. After discussion off the record, either counsel or the judge may want something that was said off the record summarized on the record. The judge can do this independently, or the lawyer may do this by requesting permission.

F. Administrative Hearings and Arbitrations

Administrative hearings that are reviewable may be recorded by electronic recording devices operated by the administrative judge, usually an audio, video, or computer software assisted recording. Some proceedings are recorded by a reporter. The purposes and tactics involved in these recorded cases are similar to the approaches discussed with regard to trial proceedings.

Arbitration awards may be reviewable by judicial judges for some legal and related errors. Factual determinations of arbitrators are not usually reviewable. And so, there is typically no need for a contemporaneous record in arbitrations. Arbitrators by agreement of the parties or as required by the forum code of procedure may need to rely on applicable substantive law in support of their decisions. This aspect of the award may be reviewed on appeal. Some arbitrations may be recorded at the mutual request of the participants, similar to the methods used in administrative hearings.

Trial and Hearing problems

A. challenging Decision Makers

Some judges may do or say things during a jury trial that constitute misconduct. A judge may make adverse comments about an attorney, improper remarks regarding evidence, or unfair comments regarding the credibility of a witness. A judge may incorrectly prohibit a lawyer from presenting the case or may engage in facial grimaces, body language, or non-verbal conduct that disrupts an attorney’s presentation.

An advocate can place these occurrences on the record, indicating what has happened and the objections to the inappropriate behavior. This can be a delicate and difficult task, but may be necessary to correct the judge’s adverse conduct. Counsel can approach the bench initially and, out of the hearing of the jury, request that the judge refrain from such behavior and subsequently place it on the record if it continues.

Problems with administrative judges, arbitrators, and judges in bench trials also need to be addressed. These professionals are the fact finders and especially need to maintain a neutral and impartial attitude. If they act improperly or conduct a proceeding unfairly, an advocate will need to address the issue, ask that it be discontinued, and make a record, if available, or submit an affidavit describing the misconduct.

B. TROUBLESOME Attorneys

If the opposing counsel creates problems for an attorney by making improper statements, behaving in a distracting manner, or engaging in other inappropriate behavior detrimental to the case, the attorney should object, and the decision maker may be asked to intervene and admonish opposing counsel. A lawyer should avoid arguing with or responding directly to adverse counsel who is creating problems. See § 3.5(M).

C. DIFFICULT Witnesses

An attorney who examines a witness on direct examination must be prepared to control the testimony. Likewise, a cross-examiner must control the responses of an unfavorable witness. The lawyer should initially make one or more attempts to insist on responses before seeking the intervention of a judge, arbitrator, or ALJ. Some decision makers may not actively intervene and prefer that counsel primarily control the interrogation. See § 9.4(C). Others will interrupt and admonish the witness.

D. TROUBLES with Exhibits

Some exhibits create problems for opposing counsel. The offering lawyer may attempt to introduce exhibits that are inadmissible or improperly refer to them and then withdraw the reference to them. The content of some exhibits will not be obvious and apparent, and an untrustworthy opponent may unfairly use these opportunities to show the fact finder inadmissible evidence. Counsel can take steps to avoid these problems by insisting that purported exhibits be made available a reasonable time before their introduction so that counsel can preview them and make any timely objections. The extent of this preparation may depend upon the trustworthiness of the opposing lawyer. See § 8.2.

E. PrEDICAMENTS with Colleagues and Staff

Many cases involve multiple lawyers and law firm staff working together on a case. Issues regarding leadership, direction, administration, management, and control can readily arise. One lead advocate or a team of leaders will need to resolve these matters. If a client has retained a number of firms to handle different parts of the litigation (e.g., discovery, settlement, trial work), there may arise differences of opinions regarding what should happen. Also, differing technologies and AI platforms may be used that need to be coordinated. All counsel and staff will need to avoid disagreements and seek to maintain cooperative and collaborative working relationships.

F. Responses to problems

When facing these and other problems that arise, it is critical for the advocate to consider how the best interests of the client are affected. If adversely, the advocate will need to do something during the planning and presentation of the case to rectify or resolve the problem, so the client has the best chances of succeeding. And later, after the case is over, the aggravating situations may make wonderful stories for the next bar convention.

** INTERACTIVE ADVOCACY**

[http://trialadvocacy.net/](http://trialadvocacy.net/" \t “_blank)

You can now engage GenAI to navigate trial procedures and motions effectively. Our tailored AI tool, integrated with the comprehensive information from this chapter, enhances your trial preparation and execution. This customized instrument empowers you to interact with LLMs enriched with the text of this book, to optimize your advocacy strategy. By inputting the specifics of your case, you can direct this AI feature to generate useful materials, such as procedural checklists, motion drafts, and strategies for handling evidence and witnesses. This integration offers a contemporary, interactive approach to trial procedures and motions, enhancing your advocacy skills through technology.

Each section of this chapter — from initiating case procedures to the intricacies of motion options — provides detailed steps to manage trial stages effectively and efficiently. Our AI tool can augment your efforts by generating procedural outlines, suggesting effective motions, and helping you anticipate tribunal involvement. By engaging with the tool, you can prompt it with queries and directives, review its responses, and refine them to harmonize with your case needs. Your ultimate decisions and strategies will benefit from this AI assistance while remaining under your control.

Your professor may provide guidance regarding what can be accomplished using this AI enhanced advocacy feature.

To access a Generative AI tool grounded in this chapter’s expertise,

• visit* <[trialadvocacy.net](http://trialadvocacy.net” \t “_blank)> * which can also be accessed with this*

QR code: !