As an attorney, what did you learn during your first case in front of a judge and jury that is forever etched in your brain?

As an attorney, what did you learn during your first case in front of a judge and jury that is forever etched in your brain?

Interestingly enough, in 24 years of practice I’ve never tried a case to a jury. There are two reasons for this:

1) Of the few of cases that would have been jury trials had they gone to trial, each case was either dismissed before trial or settled before trial. I wanted the experience of handling a jury trial, it’s just never happened for me yet.

2) I’m a divorce lawyer and divorce trials are conducted without juries (they are tried to the judge only and are known as “bench trials” because the judge “on the bench” decides the case, not a jury).

Disappointing and frustrating things that I have learned from the divorce and child custody cases I have tried are, among other things:

  • After he retired (name withheld to protect and reward his candor) I asked one judge before whom I had appeared several times, “How much of what was presented to you during trial went in one ear and out the other?” He said (I quote verbatim), “Oh, about 50%.” I’m not saying all judges are that way, but there’s a lot they miss or simply ignore.
  • Telling lurid tales of physical, sexual, psychological, and emotional abuse are believed (or said to be believed) a shockingly high percentage regardless of whether they are known to be, in fact, true.
    • Consequently, in my experience most courts like to take a “better safe than sorry” and “abundance of caution” approach to allegations of physical, sexual, psychological, and emotional abuse, rather than have the guts to say (as they should), “Look, all I have allegations but no proof of them. When that happens I don’t have a preponderance of the evidence to conclude these tales are in fact true. They might be, but that also means they might not be. I won’t penalize the accused merely on the basis of the accusation alone.”
  • Some judges often treated statutes and court rules as optional instead of mandatory and sometimes knowingly violate the statutes rules to get to the trial outcome they desire rather than the outcome the statutes and court rules dictate.
  • “Let the witness finish answering your question” is often said in response to an objection to the witness either failing to answer a polar question (i.e., a question that requires a “yes or no” answer) with a “yes” or “no” or answering “yes” or “no” but then editorializing for several minutes thereafter.
  • “Objection, argumentative” followed by, “Sustained” are two of the most common errors in questioning a witness.
  • “It’s not hearsay because it’s not being offered for the truth of the matter asserted” is a “great” way to get hearsay admitted into evidence, whether the excuse is valid or not.

Utah Family Law, LC | | 801-466-9277

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