Attorneys at trial may feel as if they are locked in an intense battle with each other, but judges have a message: The personal battles don’t play well with juries.
“We’re allowed to talk to the juries after their verdicts,” said Judge Judith Matarazzo, Multnomah County Circuit Court in Oregon. “So I decided to take notes on what they say. It’s fascinating to me that they generally pay a great deal of attention to the lawyers.”
One juror question that stands out to Matarazzo is: “Do they have to yell so much?” Another question: “Why don’t they like each other?”
Matarazzo joined a panel of fellow judges at CLM’s 2019 Construction Conference to answer a range of questions submitted by CLM members and fellows. The judges discussed their views on courtroom behavior, their approach as judges, and diversity in the legal profession.
Regarding the personal battles between attorneys that emerge during trials, Matarazzo noted, “Over the last 10 to 15 years, I have noticed that lawyers take things much more personally. The arguments at trial aren’t just adverse arguments; they’re personal. And to the extent that we can stop that, we need to.”
She continued, “The juries are picking up that it is personal, and that’s a mistake. I don’t think we should do that.”
Judge John Madden, Denver Judicial District Court, recounted one trial in which two attorneys made it a battle between themselves, seemingly forgetting about the jury and the judge. “I looked around the courtroom,” Madden said, “and one juror was looking at the ceiling, not paying attention. Another I thought was taking notes, but I realized she was drawing pictures of something else.” He added, “Too many times, attorneys get so caught up in the battle with the other lawyer that they are not seeing the impact it has on the jury and on the judge.” Put simply, he said, “Juries don’t like disrespect, fighting, and arguing.”
And “disrespect” goes beyond how attorneys treat each other. Judge Susan Johnson, 8th Judicial District Court of Nevada, said that, after a trial, she will go to the jury room and inform jurors that, if they choose to, they can go back into the courtroom and talk to the attorneys for a few minutes. “Once,” she said, “there was a lawyer who made this face every time I made a ruling that was against him. The jury afterward said they didn’t like that, they got on to him big time, and I don’t think I’ve had a lawyer snap at me ever since.”
The lesson: “The takeaway I want you to see here is the jury loves us [the judges]. And if your client disparages or disrespects us in any way, you guys are in trouble.”
Or, as Matarazzo put it, “Communicate with kindness. There is never, in my mind, any reason to be harsh in the trial. So kindness goes a long way.”
Inform, Get to the Point, and Know Your Audience
Apart from being respectful to judges, Johnson reminded attorneys and claims professionals that they have to inform judges as well to be successful. “Remember,” she said, “your job is to educate the judge. Focus on your judge. In fact, almost act like you were a professor in the classroom. I know this is shocking, but we are trying to make the best and right decision, and we need your help on that. So, educate us, answer our questions, and be respectful because everyone’s eyes are on you.”
The judges also said attorneys should make their points quickly and clearly in order to not lose a jury’s attention. “I’d say we don’t do a very good job as lawyers of getting to the point; telling the jury what you want them to do, and doing so in a collegial manner,” said Matarazzo. She recounted a story where a lawyer lost the interest of jurors because that attorney opened by thanking all of the parties involved for their time. “Jurors like when you get to the point,” she said.
Another key piece of advice from the judges: Attorneys must keep their audience in mind. Johnson said, “If you come from out of state, you better know how to pronounce the state’s name.” Using her state of Nevada as an example, she said, “It is not Ne-vuh-da, it’s Ne-vah-da. And if you don’t learn our name, you will be ‘hometowned’ very quickly.”
Matarazzo told a story about two out-of-state attorneys in Oregon. “One from New Orleans spent about 10 minutes of voir dire talking about going to church, and I wanted to say, ‘Oregon is the least church-going state in the nation, so this is not flying with anyone here.’” She added, “If you’re going to hire someone to appear in an Oregon courtroom, you would do well to hire someone who knows Oregonians.”
Diversity in the Courtroom
Justice Howard Sherman, Supreme Court of the State of New York, 12th Judicial District—Bronx County, echoed his fellow judges’ overall sentiments, stating that attorneys should “be respectful; not just to me, but to the other attorneys.” But he went a step further, pointing out that he has seen attorneys who have been around for a while—part of the ‘old boys’ club,” as he called it—treat newer attorneys differently than “other members of the old boys’ club.” He specifically mentioned this attitude toward women and minority attorneys. “Whether it’s bullying, or whatever,” Sherman said, “I don’t like it. Jurors don’t like it. Don’t do it.”
In fact, the judges spent a significant portion of their panel session discussing diversity in the courtroom, with most of the comments coming in direct response to a question on the topic from moderator and Cozen O’Connor Member Irene K. Yesowitch. Yesowitch, who chose questions based on feedback from CLM members and fellows, said she was surprised at how many inquiries she received on the subject of diversity.
The judges agreed that attorneys and judges are more diverse today than in years past. But they noted lingering biases, as well. Sherman’s comment about the “old boys’ club” was one example, but Matarazzo, when talking about the feedback she gets from jurors, pointed to another example: Many comments she receives about women attorneys have to do with what they wear. “I never had anyone comment on what the men wear, but almost every jury comments on what the women wear,” she said.
However, attitudes appear to be changing. Madden said that when he started in trial practice, there were a number of rules for women—in some courtrooms, women would not be allowed to wear pants; in others, they had to wear pants. Women would often not be aggressive in the courtroom because it would work against them, while, for men, the same attitude would be perceived as confidence. “But those concerns have just started to evaporate,” he said, noting that he does not see these attitudes as much anymore.
As for the changing demographics among lawyers and judges, Judge Jose Rodriguez, 11th Judicial Circuit Court of Florida, said that, when he first came onto the court, there were no women and no Hispanics. “Things have changed,” he said. “Now we’re at the point where we have more women than men lawyers” arguing cases in his court, and the majority tend to be Hispanic.
Johnson said Nevada has a majority of women supreme court justices after two women were sworn in January 2019. She noted that Nevada has also become the first state with a women-majority legislature. Regarding attorneys, Johnson said, “I would say that I see more caucasians among the civil lawyers,” and more diversity among attorneys involved in criminal matters.
As for New York City, Sherman estimated the bench is “close to 50 percent diverse versus caucasian.” And in Oregon, Matarazzo said five of the state supreme court’s justices are women. She also said, “It’s not uncommon [in most larger counties] for the prosecutor, defense attorney, and judge to all be women.” She said the courtroom is not necessarily very ethnically diverse, but she pointed out that Oregon as a state is not particularly diverse. The latest American Community Survey data shows Oregon is nearly 85 percent white.
Summary Judgment
Asked to respond to the belief among some attorneys that judges do what they can to prevent a summary judgment, the judges gave an interesting range of answers. Sherman declared, “I do not seek to deny summary judgment.” He maintained that he treats each motion separately and decides it “based on what’s before me. To the extent that there’s a sense judges will go out of their way to deny summary judgment—in my experience, that’s not true.”
Johnson, likewise, said she has “no problem granting summary judgment,” and she noted that the motions she gets from the construction-defense industry tend to be more legal questions, such as whether a statute imposes a bar on a particular claim. “I think construction-defect lawyers use this very effectively,” she said. “I have no trouble granting them.”
Matarazzo, though, said, “I don’t like them. I don’t like them at all. They’re a waste of time in most cases, and they’re a lot of money.” She added that, in Oregon, the Court of Appeals rarely finds a case that does not have a material issue of fact.
“So, I rarely grant them,” Matarazzo said. Rarely, though, does not mean never. “I certainly read them,” she explained, “and I’ll take them on a case-by-case basis.”
Madden pointed out that one issue is the waves of motions for summary judgment. “Part of the problem is the valid motions for summary judgment are lost in a sea of motions filed for summary judgment simply to file.”