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General Trial Procedures   Venire and Voir Dire
Opening Statement and Closing Argument   Examination of Witnesses   Objections to Questions
   

General Trial Procedures

Chief Judge Herndon views one of his more important roles to be the protector of the jurors’ time and reducing the imposition on them to every extent possible. Every trial participant must be cognizant of the impact on the jurors of anything which could cause them to waste their time by not observing trial proceedings. Consequently, the Court demands that everyone accomplish anything which might cause a delay prior to the jurors arriving. Judge Herndon will make every effort to explain unavoidable delay to the jurors in terms that will not reflect on either party. A pattern of delay that is avoidable may result in the jurors be advised who caused the delay.

Counsel need not request the Court's permission to approach a witness. However, it is strongly encouraged that counsel question witnesses using one of the available microphones (primarily on the podium or evidence cart). Counsel who feel a need to step away from a microphone should face the witness and speak with enough volume so that everyone can hear. Remember it is your record that you are trying to preserve and it is your evidence you are eliciting, so let everyone have the benefit of it, here and in Chicago.

Sidebar conferences are strongly discouraged because juries routinely find  them annoying. When sidebar conferences must be conducted, the  courtroom technology will be utilized to allow the reporter to take down the  arguments and ruling while the jury's hearing is screened by "white noise."  When a dispute has arisen regarding whether a witness should be allowed to  offer particular testimony, which the Court has disallowed, the witness should be instructed to stay pending further arguments out of the jury’s hearing and  at a standard break in the trial. To indicate one’s desire to pursue further  argument and to have the witness remain, counsel need only make the  simple statement that further discussion at the break is requested and then  during the break advise the Courtroom Deputy of the intention to persist in  that regard.

This Court does not tolerate non-verbal communication from litigants. Unfortunately, a litigant who is disenchanted with testimony or the rulings of the Court may communicate his dissatisfaction by using facial expressions. Aside from showing disrespect for the proceeding at hand, such communication is a source of consternation for jurors. At the worst, it could be interpreted by the Court or jury as a means of influencing the jury outside the scope of the normal rules of courtroom engagement. Counsel should advise their clients to refrain from such activity. Should the Court discern a pattern of such activity, it will issue a warning to counsel. Further examples of this behavior may result in an admonishment directly to the litigant or, if sufficiently blatant and prejudicial, expulsion of the offending litigant from the courtroom. Unfortunately, even counsel have been observed utilizing nonverbal communications and worse audible communication to convey inappropriate matters to a witness or the jury. Naturally, such occurrences by members of the bar will be sanctioned in appropriate fashion. 

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Venire and Voir Dire

Prior to seating the venire panel, each potential juror is required to fill out a questionnaire which will be given to each party. You can obtain a blank copy of the questionnaire upon request of chambers or the jury administrator. Likewise, a copy can be downloaded by linking to the juror questionnaire.

The Court will conduct the initial voir dire. Following the Court’s voir dire, each party shall be given the opportunity to inquire of the panel. However, if either side would like the Court to ask particular questions of the panel, such questions should be submitted to the Court prior to the seating of the panel, with a copy provided to the other parties. In the case of pro se parties, the Court will conduct all voir dire itself.

At the conclusion of all questions, the panel shall be excused from the room. Thereafter, the Court will entertain any cause challenges, followed by peremptory challenges. In criminal cases, the peremptory challenges shall be exercised with the government going first with one strike, the defendant next with two and so on until all strikes are exhausted or until the jury of twelve is selected. Additional challenges will be granted for alternate jurors as provided in Rule 24(c)(2), using the alternating method as previously described. In death penalty cases, strikes shall be exercised individually in alternating fashion. In civil cases, challenges shall be exercised individually in alternate fashion. All jurors in civil cases remaining at the beginning of deliberation shall remain on the jury throughout deliberation unless excused for cause. 

The Court may use the "struck" method where efficiencies determine that method will be helpful.

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Opening Statement and Closing Argument

Any exhibits which counsel wish to use during the opening must  first be shown to opposing parties and a determination of whether there is agreement for its use. In the event of disagreement, the Court will only allow  the use of the exhibits for which admissibility can be determined promptly  and without causing a delay in the start of the trial. Electronic demonstrative  aids that do not involve exhibits to be introduced during trial, such as  PowerPoint, must be shown to opposing parties and the Court for evaluation of its  reasonableness.

Counsel should maintain a reasonable distance from the jury, but are not required to confine themselves to the podium. However, if the jury or the court reporter has difficulty hearing counsel, the podium and direct use of the microphone will be required.

The Court does not restrict the time spent in closing arguments. However, each counsel shall agree on the time to be allowed each, and each will then be confined to that time period. The Courtroom Deputy will give warnings as requested. 

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Examination of Witnesses

Counsel are expected to plan trial time so as to prevent delays occasioned by a witness’ absence. Witnesses should be present and ready to testify when called. The Rule on Witnesses is not automatic and must be invoked by either party or the Court. Counsel should not depend on their agreement to suspend testimony for a period of time as an accommodation to witnesses' schedules without consulting the Court. The Rule on Witnesses does not apply to expert witnesses.

It is inappropriate during the questioning of a witness to summarize or  paraphrase another witness’ testimony, except where appropriate during the  examination of an expert witness. Likewise, it is inappropriate to ask one  witness to assess the credibility of another witness’ testimony. For example,  do not ask, "So if John Doe said such and such, he would be lying?"  Likewise, it is not appropriate to preface a question with what counsel  represented in opening statement. 

When attempting to impeach a witness with a prior inconsistent statement,  the proper procedure is to establish whether the witness admits or denies  making the prior statement. If the witness denies making the statement,  counsel who wish to perfect the impeachment must call as a witness the  reporter of the prior statement. It is not appropriate impeachment to hand a  deposition to a witness and ask if it refreshes his recollection and then ask if  he told the truth in the prior statement or the current testimony.

Aside from the Court’s determination outside of the hearing of the jury under Daubert and its progeny, counsel should not (in the presence of the jury) tender a witness to the Court to "certify as an expert." The Court’s only response can be that such a determination is within the province of the jury to decide.

Requests for the court reporter to read back testimony will be granted in rare circumstances and only when the integrity of the question in its original form is of the essence. Normally, when a witness asks that a question be repeated, it is because the question is too long to follow or the witness does not understand it for some other reason. The best course is to rephrase the question. In any event, all requests to read back shall be directed to the Court, the response for which will depend upon the above analysis.

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Objections to Questions

In objecting, counsel should simply advise the Court of the grounds for the objection, without argument or speaking beyond the bare grounds. Should the Court desire argument relative thereto, it will so indicate.

Sidebar conferences are strongly discouraged. When a dispute has arisen regarding whether a witness should be allowed to offer particular testimony, which the Court has disallowed, the witness should be instructed to stay pending further arguments out of the jury’s hearing and at a standard break in the trial. To indicate one’s desire to pursue further argument and to have the witness remain, counsel need only make the simple statement that further discussion at the break is requested and then during the break advise the Courtroom Deputy of the intention to persist in that regard.

Where more than one attorney appears for a given party, the attorney who handles the direct examination of a witness shall also interpose objections when the witness is being cross-examined. The attorney who will cross-examine shall be the one to interpose objections during direct.

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