Plaut Spouts: Reflections of an Old Guy with a Corner Office

July 3rd, 2018 By David L. Plaut

Collegiality and Professionalism: Is “All of My Kindness, Taken for Weakness”?

With apologies to Rihanna, civility and collegiality in the practice of law leads to better outcomes and is the right way to practice anyway.  The best lawyers, those who are well prepared and steeped in the law, are cordial and collegial in their dealings with other lawyers, the court and court personnel, and the community at large.  All too often, it is the bad lawyer, the unprepared lawyer – the young lawyer who believes bluster makes her formidable – who is unwilling to compromise even on irrelevant issues.  I’ve seen this time and time again in our trial practice.

Before pretrial conferences here in Travis County, lawyers with upcoming trials gather in presiding court where they are asked to make announcements about trial.  The presiding judge asks for announcements about three things: (1) the length of trial; (2) the amount of time needed for the pretrial conference; and (3) whether a standard jury panel is adequate.  All too often, in announcing their cases, lawyers indicate that the pretrial conference will take half a day or more.  When that sort of announcement is made, the presiding judge knows immediately that the lawyers have likely not made adequate attempts to resolve outstanding issues between themselves.

There are numerous things that can be done pretrial to streamline the trial process for everyone.  This usually requires picking up the phone a week or two before trial to discuss trial issues that are bound to arise.  Can the parties agree on motion in limine points?  Exhibits?  Proposed jury questions and instructions? Usually there isn’t any dispute on much of the standard motion in limine as there are standing orders on these issues in many Texas counties.  If the parties can agree that, say, Plaintiff’s motion in limine points 1-8 and 12-16 are agreed and the court need address only points 9-11, that saves everyone time and hassle.  Very often the same is true for exhibits.  Exhibit lists should be exchanged according to the rules, but lawyers should talk to one another about the exhibits to see what can be pre-admitted as a housekeeping matter pretrial.  It’s a good idea to put together notebooks of all the agreed exhibits – for both plaintiff and defendant – for witnesses and the court.

Deal with page/line designations for depositions before trial if you can as well.  See what you can live with and then address the real disputes at the pretrial conference remembering that not every evidentiary dispute merits a fight.   With objections, the question is always whether the offered testimony hurts your case.  Often the court will simply advise counsel that objections will be taken up at trial.  If there are videotaped depositions, page/line designations can be edited for a streamlined package to the jury.  Optional completeness rules usually weigh in favor of presenting all related evidence from a given witness in a single viewing; that wastes less time.  I’ve seen videotaped depositions of witnesses presented with all of the plaintiff’s depo clips followed immediately by all of the defendant’s depo clips for that witness.  I’ve also seen it done with the admissible video presented chronologically as it was taped.  That’s my personal preference as I think it allows for a more comprehensible narrative, which jurors appreciate.

Another thing to discuss pretrial is the jury charge.  I love working on jury charges because they’re logic puzzles and an opportunity to distill your case down to its bare essence.  Again, good lawyers have thought about the charge and are willing to discuss their approach.  Texas requires broad-form submission whenever possible and the Texas Pattern Jury Charges (“PJC”) deal with such a wide array of cases that there’s almost always a go-by for a proposed question or instruction.  When a lawyer deviates from an applicable PJC that’s often where the horse is buried.  Granulated, fact-based charges are disfavored but are occasionally necessary.  No reason not to exchange proposed charges and talk to the other side about differences in approach.  Often, there won’t be any dispute about the proposed jury questions and instructions but disagreement about which damage elements should go to the jury.

What we learned in kindergarten right?  Trial practice is the same.  Being polite and civil isn’t weakness; it pays dividends and it’s the right thing to do.