§26.04 Procedures During Trial

• Jurisdiction: Washington

§ 26.04 PROCEDURES DURING TRIAL

[1] Attorney Conduct at Trial

How an attorney conducts him- or herself in the courtroom reflects on the attorney professionally, his or her client, and the case. Professional conduct and respect not only towards the court but towards opposing counsel and his or her client must be maintained at all times.

Although most attorneys have the common sense to treat the judge with deference and respect, it is important to treat the judge's courtroom staff the same way. The judge typically has a clerk and a bailiff who manage the courtroom. These knowledgeable professionals are an extension of the judge, and you should treat them with the same respect as the judge. Even though the staff may not know the particular facts and circumstances of the case before the court, they know what expectations the court has, how the judge wants information submitted, and what procedures to follow. Follow their directions and instructions. They can be incredibly helpful if you are unsure of the process in a particular court.

Opposing counsel and his or her client should be treated respectfully. Arguments between counsel or clients, critical comments, and theatrics have no place in a courtroom, and they detract from the presentation of the case. Do not allow your client to make remarks during the course of the trial, whether the court is in session or not. Credibility is always an issue, and unprofessional or disrespectful conduct by an attorney or client will undermine credibility and ultimately the case. You can be a strenuous advocate and fight for your client while treating everyone involved with respect.

Anyone addressing the judge should stand, whether answering a question, making an opening statement, questioning witnesses, or making closing argument. The only exception is if the court tells the clients and attorneys that they may sit while addressing the court.

[2] Exclusion of Witnesses

Prior to the start of the trial, it is not uncommon for one party to request that all witnesses be excluded from the court until they have testified, and the court may do so on its own volition. ER 615. The purpose is to ensure that each witness is testifying from his or her first-hand knowledge and recollection, as opposed to testifying from what the witness either heard from the attorneys or other witnesses. Exclusion of witnesses is within the trial court's discretion. State v. McGee, 6 Wn. App. 668, 669, 495 P.2d 670, 672 (1972). If an expert will be testifying, consider an exception for the expert witness who would benefit from listening to the other party's expert, because an expert can base his or her opinion on facts or data made known to the expert "at or before the hearing." ER 703.

[3] Opening Statements

The opening statement is each attorney's first opportunity to tell the court what the case is about. This is not the time to argue the case, but an opportunity to explain to the judge what the evidence that supports the case will show. The goal is to deliver an opening statement that shows the court the client is entitled to the relief that is requested in the trial brief. This can only be accomplished by providing a logical and compelling opening statement demonstrating a clear command of the facts and circumstances, as well as the law that applies.

Each attorney must make strategic decisions about what issues do not need to be specifically addressed in opening; what issues need to be addressed but briefly; and what issues need to be addressed in detail, consistent with his or her theory of the case. An opening statement needs to be carefully planned and prepared in advance.

Always make an opening statement. Even if you believe the court has a clear understanding of the facts after ruling on prior motions, you can tailor the opening statement to focus on the requested relief, address any problem witnesses or facts, or anticipate the opposing party's response and address it in advance.

[a] Elements

There are many different elements you can incorporate or leave out of the opening statement, depending on the facts and circumstances of the case. The art of an opening statement is weaving these different elements together in an interesting, compelling, and persuasive manner. A nonexclusive list of elements in an opening statement includes the following:

1. Identify parties: Identify yourself, introduce the client, and provide some information about the client that begins to humanize him or her in some way other than as "petitioner" or "respondent."
2. Outline the facts: Begin to provide an outline of the evidence as you expect it to come out in court. In family law cases, providing the information in chronological order is best, but certainly not required. Develop the theory of the case by addressing the strong points of the case and providing an explanation for the weaker points or problem areas of the case. Do not say anything in the opening statement that cannot be proved through witnesses or documentation. Provide an explanation for the client's poor behavior, if any. Be cautious about how the behavior of the opposing party is characterized.
3. Identify legal issues: Identify the legal issues you are asking the court to decide. Telling the court "a parenting plan is needed" is not helpful to the judge, nor is it persuasive or good advocacy. Telling the court what is needed in a parenting plan, while weaving in facts about the client you are representing, his or her relationship with the children, and why the client wants a particular residential schedule, helps the court and is a stronger presentation.
4. Incorporate photographs, charts, diagrams, or other exhibits: There is nothing that prevents you from using demonstrative exhibits during the opening statement. Photographs, charts, diagrams, or other exhibits may be helpful in a complicated or convoluted timeline of events. Do not use demonstrative exhibits for the sake of using them or as a crutch for not knowing the facts or timeline. Use demonstrative exhibits to enhance the presentation. If it does not enhance the presentation, leave it out.
5. Ending the opening statement: The opening statement should be long enough to cover the elements of the case and no longer. If there are extensive or complicated legal issues or convoluted factual circumstances, the opening statement will be longer than if there is a single issue or straightforward matter in controversy. Use best judgement and cover what is needed to summarize the case to the judge so he or she is aware of the issues and is prepared to look for the evidence and decide the important issues. A good practice is to finish by briefly reviewing the major requests being made to the court. Go beyond "please adopt our proposed orders" and provide some specificity about what relief is important to the client.

[b] Legal Issues

Facts admitted in opening statement: When facts are admitted in an opening statement, counsel will be held to them throughout the trial. Dodge v. Stencil, 48 Wn.2d 619, 296 P.2d 312 (1956); cf. 6 WASH. PRAC., WASH. PATTERN JURY INSTR. CIV. WPI 1.02 (7th ed.).

Admissions: For an admission in an opening statement to constitute grounds for dismissal, it must be distinct, formal, unequivocal, and deliberately made. Moreover, the admission must be conclusive upon every theory presented by the pleadings. Hastings v. Harkoff, 61 Wn.2d 648, 650, 379 P.2d 914 (1963); Hallum v. Mullins, 16 Wn. App. 511, 557 P.2d 864 (1976). Defendant's counsel can move to withdraw the case from the jury and enter a judgment. Philip Trautman, Motions Testing the Sufficiency of Evidence, 42 WASH. L. REV. 787, 793 n.21 (1967). Judgment on opening statement is normally not granted without giving counsel a fair opportunity to explain and qualify his or her opening statement. Impero v. Whatcom County, 71 Wn.2d 438, 447, 430 P.2d 173 (1967).

Anticipating defense: The petitioner may anticipate the respondent's position in the petitioner's opening statement and may comment upon or respond to the anticipated position of the respondent. Snowhill v. Lieurance, 72 Wn.2d 781, 435 P.2d 624 (1967).

[4] Testimony and Exhibits at Trial

[a] Examination of Witnesses

[i] Direct Examination

The court has control of the mode and order of interrogation of the witnesses. ER 611. The direct examination of a witness should elicit from the witness in a clear, straightforward, and logical progression the observations and activities of the witness. Thomas A. Mauet, FUNDAMENTALS OF TRIAL TECHNIQUES § 4.1 at 75-76 (1988). A lay witness cannot...