LESSONS FROM JUDGE STACEY K. HYDRICK , DEKALB COUNTY STATE COURT, AND JEFFREY R. HARRIS, HARRIS LOWRY MANTON L L P
BY YVONNE GODFREY
At trial, the jury will always be an unpredictable element. The judge presiding over your trial, however, is a known factor. As pointed out by Judge Stacey Hydrick and attorney Jeff Harris during their presentation at February’s Watch Me CLE in Savannah, many trial lawyers tend to focus solely on the jury, sometimes at the cost of their relationship with the judge. However, the trial judge’s preferences and way of running his or her courtroom should always be a part of your trial strategy.
INTERACTING WITH THE JUDGE
The jury bases its reaction to a lawyer on that lawyer’s interactions with opposing counsel and witnesses, but also the lawyer’s inter-actions with the judge. After all, the judge is the figure of authority in the courtroom. As a result, one of Jeff’s first questions to Judge Hydrick was, “What should a lawyer do if they are getting sideways with the judge?” Ultimately, if your judge is unhappy with your conduct at trial, that will also affect how the jury perceives you.
Judge Hydrick advised trying to approach the judge. She suggested asking, “What is it I’m doing wrong, and how can I fix it?” While Judge Hydrick noted that not all judges will be receptive to such a discussion, it’s certainly worth attempting. Judge Hydrick also advised that the State Court judges in Georgia have a list serve, through which they can, and do, discuss dealings with certain attor neys. So, as Judge Hydrick emphasized, think carefully before telling a judge, for example, that they are the only judge who handles things a certain way. Georgia’s State Court judges are a close-knit group that can easily communicate with each other to find out if your assertion is actually true.
TAKE-AWAY: If you don’t know how you are ticking off your judge, ask!
DEALING WITH “DIFFICULT” OPPOSING COUNSEL
Next, Judge Hydrick and Jeff discussed how to deal with opposing counsel when, based on past experience or word-of-mouth, you have reason to believe that opposing counsel will engage in unsavory practices at trial. As to this point, Judge Hydrick advises avoi ding attempts at pre-emptive attacks, via motions in limine or otherwise. As Judge Hydrick pointed out, until the bad conduct occurs, there is really nothing to rule on at that point (and no one likes a whiner). The better practice is to “mind your P’s and Q’s,” and bring any bad conduct to the Court’s attention each time it occurs. That will make the Court and the jury aware of opposing counsel’s bad lawyering.
TAKE-AWAY: Premature attacks on opposing counsel make you look whiny.
MOTIONS IN LIMINE
While Judge Hydrick doesn’t advise exhaustive use of motions in limine, she thinks there are certain issues that are best handled this way. For example, Judge Hydrick prefers to handle evidentiary issues likely to arise at trial through motions in limine. Judge Hydrick pointed to prior criminal convictions unrelated to the case, for example, as an issue that should ideally be addressed ahead of trial. Judge Hydrick utilizes pretrial hearings or will even schedule a separate motions hearing for this purpose. This allows the Court to do the research, spend time with the issues, and make the right decision. So, if you’re expecting the issue to arise, the Court will prefer to see it coming rather than be blindsided. As Judge Hydrick put it, “Surprises are bad. No surprises.”
To this point, Jeff asked, “What about when the Court has ruled on a pretrial motion in limine to exclude testimony on a certain topic, but then a witness opens the door?” Judge Hydrick’s advice: don’t charge through that door. First, ask to approach the bench, advise that you believe the witness opened the door to the barred issue, and get permission to examine the witness further as to that issue. Otherwise, you can put the whole trial at risk.
TAKE-AWAY: Motions hearing: good; surprises: bad.
OBJECTIONS AT TRIAL
Judge Hydrick noted that many lawyers in her courtroom make “pseudo-objections” at trial: they look at her, half stand up, but never say anything. Judge Hydrick’s advice: if you intend to object, stand up, say you object, and state the basis for your objection. Articulate your objection clearly, loudly, and get the witness’s attention to prevent further testimony. If the objection requires further explanation, you may ask to approach the bench. And Judge Hydrick emphasizes: be prepared to argue your objection – know the statute, rule, or case.
Related to this point, Jeff and Judge Hydrick discussed the best way to make sure you get a ruling on the record. As Jeff advised, make sure you elicit a clear, verbal ruling from the judge to preserve the issue. Judge Hydrick added that, in her courtroom, the layout does not permit the transcription of bench conferences: make sure, either during or following a bench conference, that you get objections on the transcript to perfect the record.
TAKE-AWAY: The judge is not a mind-reader. If you want to object, stand up, make your objection, support it with the law, and get it on the record.
Jeff previously tried a case in front of Judge Hydrick in which opposing counsel committed discovery abuses and spoliated evidence. Jeff’s question to Judge Hydrick: how does she prefer lawyers handle motions for sanctions in similar circumstances? Judge Hydrick’s experience is that requests for sanctions can be overused and abused. She advises that a lawyer ensure that the remedy sought is proportionate to the alleged misconduct. She cautioned, “Don’t bring out the cannon when a nerf gun will suffice.” W hen constructing a motion for sanctions, bring out the key facts for the court, show the misconduct, and lay it out as clearly as possible for the judge. In Jeff’s case, a Power Point presentation playing video deposition excerpts juxtaposed with screenshots of contradictory, written d iscovery responses made “crystal clear” that egregious misconduct had occurred.
TAKE AWAY: Use excerpts from documents and testimony to quickly and clearly demonstrate that sanctions are warranted.
INSIGHT ON THE JURY
Judge Hydrick provided some insight on what trial lawyers do that annoy jurors. The main annoyance, as Judge Hydrick sees it: “Taking too long. Long examinations of experts, long openings, and long closings.” As Judge Hydrick pointed out, judges like to be engaged during trial. If your judge is bored, the jury is definitely bored.
At the same time, Judge Hydrick advised avoiding a theatrical style at trial. She specifically recalled an attorney who tried to simulate his client’s fall by falling off the witness stand himself. Her experience is that jurors dislike it, and theatrics don’t do anything to advance a lawyer’s professionalism or a client’s interests. Judge Hydrick said, “You’re better off coming across as professional and focusing on the facts and the law. You’ll end up with a better result.”Related to closing argument, Judge Hydrick acknowledged, “there is no way to predict what a jury is going to do.” She has observed many lawyers over-inflating the amount of money they ask for, expecting that the jury may award less. However, this c an reinforce the general public perception that lawyers are always asking for too much money. This point is (literally) illustrated by a juror’s note that Judge Hydrick found in the jury room following a recent trial. (See Figure A).
As Judge Hydrick conceded, how to handle the amount of damages with a jury is always a gamble. In general, a lot can depend on your presentation. “If you come across as honest, forthright, and likeable,” Judge Hydrick said, “it will be easier for the jury to think your ask is reasonable.”
TAKE-AWAY: See the juror’s drawing, Figure A.
Judge Hydrick’s final piece of advice: try to remember to be kind, and “don’t be a jerk.” First, the judge, the jury, and opposing counsel are all human beings with lives outside of the courtroom, and they should be treated with respect. But second – as Judge Hydrick pointed out, “98 percent of the rulings that judges make in trials are discretionary and reversible only for an abuse of discretion.” The court is unlikely to exercise such discretion in your favor if you’re being unkind or disrespectful. Judge Hydrick shared with the CLE attendees, “There are a lot of bad lawyers out there. A good lawyer is a breath of fresh air.”
TAKEAWAY: Be a breath of fresh air.
ABOUT THE AUTHOR:
Yvonne Godfrey is an associate at Harris Lowry Manton LLP and works from both the Atlanta and Savannah offices. Her main areas of practice include product liability, medical malpractice, and other catastrophic injury and wrongful death cases. Yvonne is a 2015 graduate of the GTLA LEAD program, and she served as co-chair of the 2016 and 2017 LEAD classes. She earned her J.D. from the University of Georgia School of Law and her B.A. from Rhodes College.
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