Improving your experience in the trial courts

And the consequences of the loss of court reporters in civil cases

2014 July

The purpose of this article is to provide information and suggestions to improve your experience in the trial courts. The article will also update readers on issues that may arise as a consequence of the loss of court reporters in civil cases.

Smooth trials are usually the product of counsel working well together. Disruptive trials with many disputes and delays required to resolve those disputes may produce unhappy or indifferent jurors. It may be in your client’s interest to work with your opposing counsel in a spirit of cooperation to resolve disputes and bring unresolved disputes to the court’s attention in a timely manner. The trial will be smoother, easier and jurors may be more attentive and focused.

Court reporters

Court reporters were no longer provided in civil trials in Los Angeles Superior Court beginning on May 15, 2012. Rules, procedures and orders for court reporters pro tempore are on the court’s Web site. Click on the link entitled “Court Reporter Information” on the home page of the Los Angeles Superior Court Web site

Court reporters who were employed by the Los Angeles Superior Court and others who qualify are placed on an approved list of court reporters. Those reporters must submit an Order Appointing Court Approved Reporter as Official Reporter Pro Tempore, on the form posted on the court’s Web site.

For reporters who are not on the approved list of court reporters, the reporter and all counsel must sign and submit a Stipulation and Order to Use Certified Shorthand Reporter, also on a form posted on the court’s Web site.

All reporters agree “to comply with the statutes and rules applicable to official reporters pro tempore” and to “follow directions from the Court.” The rules for reporters pro tempore are set forth in the “Superior Court of California, County of Los Angeles, Guide for Official Reporters Pro Tempore,” posted on the court’s Web site.

The rules for reporters provide, in part, that the reporters must check in to the courtroom, set up their equipment, introduce themselves to the clerk and courtroom assistant or bailiff, give the clerk a business card with a CSR number on it and ask the clerk if there are any special procedures or practices of which the reporter should be aware. The reporter must inform herself how the judge handles sidebars and bench conferences and how the judge prefers that the reporter stop proceedings when she cannot follow or understand the witnesses or attorneys. (Guide for Official Reporters Pro Tempore, page 3.)

The rules for court reporters also provide that reporters are responsible for bringing whatever special equipment they need to report bench conferences. Many court reporters have their own pocket-sized microphone/amplifier with a headset so they may stay seated and connected to their laptop while the judge and counsel conduct a bench conference. The headset will require an extra-long headset cord. Some electronics stores carry this equipment. (Guide for Official Reporters Pro Tempore, pages 7-8.)

Reporters are responsible for bringing with them all the equipment and supplies they will need to perform this work. The Court does not provide any steno paper or other court reporter supplies and will not have any copying equipment available for reporters pro tempore. (Guide for Official Reporters Pro Tempore, page 10.)

When queried, some reporters have stated that they have not read the rules and are not familiar with them. On some occasions, reporters have not handled sidebars properly. Some reporters expect the court to provide headphones and microphones so they can report sidebar conferences. Some reporters do not plan how they will report sidebar conferences, waiting until the first sidebar with the court, counsel and jury waiting for the reporter to figure it out. After the first request to approach sidebar was granted, one reporter looked at the judge and asked the judge, in front of the jury, “where is the equipment for the sidebar?” Other reporters have come to sidebar and attempted to report the sidebar while kneeling on the floor instead of detaching the machine from the tripod and putting the machine on the side bench. One reporter complained when a judge did not have a chair for her to sit in to report a sidebar. Placing a chair in that location in that courtroom would have blocked staff access to a file cabinet and to the judge’s chambers. Such access was necessary for staff to perform their duties and essential in the case of certain emergencies, given the configuration of that courtroom.

In jury trials, some reporters have called out instructions to witnesses, attorneys and even the judge, telling them how to proceed. In one recent trial, during voir dire and in front of the jury, the court reporter asked the Court to order the attorneys to identify the jurors with whom they were speaking, by name. In many courts, it is expected that the court reporter will track the names of counsel and the jurors.

If you are going to retain a court reporter, you may wish to inquire whether the reporter has read the court reporter information on the Los Angeles Superior Court Web site and is familiar with courtroom procedure.

Real-time reporting

Real-time reporting is not required, but may assist the Court in making accurate rulings, searching for testimony, including testimony regarding exhibits, reviewing questions before ruling on objections, highlighting those questions for counsel to view at sidebar, and highlighting and making notes on testimony on issues.

If counsel has agreed to provide real-time reporting to the court, counsel may wish to determine whether the reporter you retain is able to log onto the court’s real-time program. Court Reporter Realtime Software Configuration Requirements for the Los Angeles Superior Court are posted on the court’s Web site. Reporters may delay trials and other proceedings if they are unable to log on to real-time. The reporter’s computers may not be properly configured for the court’s real-time software. The reporter may not have the proper jack to connect to the jack in the courtroom. In one recent trial, it was necessary to call the court’s tech support personnel three times to assist reporters who were unable to log onto real-time.

A few real-time reporters have produced very inaccurate scrolling real-time transcripts. Inaccurate scrolling real-time transcripts defeat the purpose of real-time, making searches unreliable because of spelling errors. You may wish to ask the judge if your real-time reporter is producing an accurate real-time scrolling transcript.

Many judges know reporters who produce excellent scrolling real-time and virtually flawless transcripts. However, judges cannot recommend any court reporter or firm, and cannot help you locate a real-time reporter.

Status of trial courts

There has been a 16 percent reduction in the number of trial courts. The trial courts began with 31 courtrooms throughout the County of Los Angeles. There are now only 25 trial courtrooms.

Although these courtrooms are sometimes referred to as personal-injury trial courts, the term is a misnomer. The trial courts handle more than trials from the personal-injury departments. The trial courts also handle asbestos trials, overflow trials from limited civil courts and unlimited independent-calendar courts, unlawful-detainer courts and restraining-order courts.

Operative complaint and answer

The Second Amended General Order – Final Status Conference, Personal-Injury Courts, filed April 4, 2014, does not require the inclusion of the operative complaint and answer in the trial binder. It is suggested that counsel place a copy of the operative complaint and answers in the trial binder or give those documents to the court on the first day of trial, as it may be difficult for the Court to rule on disputed jury instructions and verdict form and conduct a trial without reviewing the operative pleadings.

Trial binders

Ensure that your trial binders are complete and well organized. Motions in limine should be tabbed and indexed by motion, opposition and reply so the trial court can easily navigate those motions. An index of the motions in limine, by title, will assist the clerk in preparing the minute order documenting the rulings on the motions in limine.

Advise the court of potential disputes

Many judges appreciate having time to research issues before ruling on them and prefer resolving potential disputes before the trial commences to ensure smooth trial flow. Juries may become frustrated and disinterested if there are numerous breaks and sidebars to resolve issues that could have been resolved before jury selection.

Typically, motions in limine do not cover all areas of dispute. Many courts will appreciate it if counsel meet-and-confer and advise the court of all disputes that counsel anticipate may arise during the trial. When assigned to a courtroom, advise the judge of all known potential disputes so the judge may resolve them before voir dire.

Jury instructions and verdict form

When drafting jury instructions, it may be helpful to bear in mind that jury instructions provide jurors with the law that applies to the claims and defenses. Jury instructions should not contain argument and rarely should refer to the facts of the case. Caution should be exercised in drafting a jury instruction by taking quotes from a case, as verbatim quotes from cases are disfavored.

In negligence per se cases or other cases in which codes or regulations are relevant, the jury instruction should set forth verbatim the applicable language of the code or regulation. Statutory language should be quoted and not paraphrased.

Expend the time and effort before the final status conference (FSC) to prepare all of the jury instructions you will need for inclusion in FSC trial binder. In addition to following the local rules, it is helpful to provide on-point case citations with pinpoint or jump cites for cases in support of disputed instructions. One case on point is preferable to string citations. Citations in support of the instructions are usually unnecessary if the disputed special instruction is simply a modification of a CACI instruction

Draft a “bullet proof” verdict form by using CACI verdict forms. One approach to drafting a special verdict form with interrogatories is to identify each cause of action by heading and insert the CACI verdict form questions for each cause of action under the applicable heading.

Many trial courts prefer to settle jury instructions and the verdict form before the jury arrives in the courtroom. Many judges experience frustration when counsel do not focus on the jury instructions until just before closing argument and submit new jury instructions on the morning of closing argument. Ruling on disputed jury instructions or a disputed verdict form when the jury is waiting in the hall is not optimal. The trial judge may not have the time he would normally take to hear argument and perform any legal research on the disputed instructions or verdict form. It is often said that the first thing the appellate lawyers look at is the jury instructions that were given and refused. Avoid potential instructional error by submitting a complete set of jury instructions before the FSC.

Meet-and-confer with opposing counsel before you arrive in the trial courtroom on jury instructions to identify agreed and disputed instructions. Your trial notebook should have one section for agreed instructions and one section for disputed instructions.

Tear sheets are not necessary in most courts. However, when formatting the second and subsequent page of a multiple page instruction, bear in mind that the clerk will tear off the top part of each page of the instructions.

Exhibits

Many judges prefer five three-ring exhibit binders with exhibit tabs that correspond to the exhibit numbers. It is preferable to number each page of the exhibit at the bottom of the page, starting with page number one for each exhibit. The original exhibit book is for the clerk and the other exhibit books go to the court, the witness stand and all counsel, so documents do not have to be carried back and forth to and from the witness stand. If you know you are going to use a document for impeachment, it is helpful to mark the exhibit with an exhibit number and have an original and four copies of that exhibit.

Consider avoiding the larger D-ring binders, as they hold more exhibits but they are difficult for witnesses and others to navigate and heavy to lift during the many times during the trial that exhibit notebooks are handled by the court, court staff, attorneys and witnesses.

It is efficient to admit exhibits at the beginning of the plaintiff and defense cases. Counsel are encouraged to stipulate to exhibits that can be admitted without objections. In some courtrooms, the court will request counsel to provide opposing counsel with a list of exhibits to be admitted. Opposing counsel will be requested to identify the exhibits on the list that can be admitted without objection.

When discussing a document at trial, it is a best practice to mark the document with an exhibit number and refer to that number so the appellate record reflects the document you are discussing.

Use of depositions at trial

Offer to provide the original deposition to the clerk before the case begins or as the witnesses testify, according to the procedure in the courtroom.

Many trial judges require that counsel identify the beginning and ending page and line number of the deposition testimony before reading the testimony to impeach a witness or for another purpose.

The deposition of an adverse party and persons who were, at the time of the deposition, an officer, director and managing agent, employee, agent, or designee of a party may be used for any purpose. (Code Civ. Proc., § 2025.620(b).) The testimony need not be impeaching. The testimony can be read at any time during your case in chief, including before, during or after the adverse party testifies under Evidence Code section 776.

Any party may use the video recording of a deposition of a treating or consulting physician or of any expert witness, even if the deponent is available to testify, if the requirements of § 2025.620(d) are met.

Depositions may be offered under the rule of completeness. (Code Civ. Proc., § 2025.620; Evid. Code, § 356.)

These rules permit imaginative and effective use of depositions at trial.

Use of exhibits in opening statements

Preparing your opening statement is time well spent. It has been reported that jurors make up their minds after hearing both opening statements, and, at the conclusion of the case, 80 percent of those jurors vote the way they would have voted at the end of opening statements.

The jury should have a clear understanding of your case after your opening statement. Consider using the deposition of an adverse party and key documents in opening statement.

Consider gearing trial presentations to both the auditory and visual learners on the jury. It does not cost anything to use the butcher paper in the courtroom to write a timeline, draw a diagram of the accident or a picture of the product.

Meet-and-confer in advance regarding the use of exhibits in opening statements. This will provide the trial court enough time to rule on any disputes without having the jury waiting in the hall or delaying the trial.

Demonstrative evidence

Meet-and-confer regarding a plan for demonstrative evidence. Many judges will accept any reasonable plan. Some attorneys agree to a 48-hour notification rule for exhibits, demonstrative evidence and witnesses. In no event should demonstrative evidence or an exhibit be exhibited to the jury before it has been shown to counsel. Allow enough time for the court to rule on any disputes, including whether the demonstrative exhibits should be marked for identification only or should go into the jury room during deliberations.

PowerPoints

Attempt to agree on a plan for PowerPoints to be used with witnesses or in opening statements or closing argument. Some lawyers agree to 48-hour disclosure. Any disputes must be resolved by the court before the PowerPoint is exhibited to the jury and without delaying the trial. Ensure that a copy of the PowerPoint is available for the court to rule on any objections.

Schedule a full day of witnesses

Given the demand on the dwindling number of trial courtrooms, counsel should schedule enough witnesses to occupy a full trial day.

Closing argument

It is important to marshal the evidence for the jury. Remind the jury of critical documents and testimony and explain why it is important. Explain why they should not credit your opponent’s witnesses or his case. Consider using the verdict form during closing argument to explicitly tell the jury how you would like the jury to answer each question.

Conclusion

It may be in your client’s best interest to work with opposing counsel to resolve disputes when possible and provide the court with enough time to resolve disputes. Narrowing areas of dispute reduces your tasks in trial. Cooperation is invariably noticed and appreciated by the trial judge. Cooperation and professionalism may create an atmosphere in which jurors are more engaged, receptive and focused on your case.