Hon. Randall H. Warner

is an Arizona Superior Court Judge in Maricopa County.

This column provides tips from judges
on civil practice. If there are practice tips
you’d like covered – or if you are a judge
who would like to write a column –
write to arizona.attorney@azbar.org.
CIVIL PRACTICE POINTERS

Out of Time

more trial time. Sometimes this can be ac-
commodated, but sometimes it can’t, par-
ticularly if back-to-back trials are scheduled.
The judge is more likely to be sympathetic if,
up to then, you’ve been careful about your
use of trial time.
Next, use the
judge’s time limits
to your advantage
in dealing with
difficult witnesses.
We’ve all seen ex-
perts who have a
hard time confining
their answers on
cross-examination.
There’s nothing
wrong with ask-
ing the witness to
simply answer yes
or no and blaming
the request on the
judge’s time limits.
Do not, howev-
er, use your oppo-
nent’s time limits as
a sword. From time
to time, we see law-
yers who regard ob-
structing the other
side as a legitimate
trial tactic. It is not.

And don’t quibble about other people’s trial time. An unfortunate byproduct of time limits is that lawyers come to see trial time as an asset, as if the more time a lawyer gets, the more points he or she will score. That works for pinball, but not for trial. If the judge has given the other side more time (because, for example, there are three defendants and only one plaintiff), worry about your case, not theirs. If you’re the one jurors perceive as making good use of their time, it will enhance your credibility with them.

I impose time limits on most trials. I do it mainly because my calendar time is finite: If the trial goes long, it disrupts the next trial, which isn’t fair to the parties, lawyers and witnesses in that case, and which is really unfair to the jury. But it’s also because time limits make for better trials by forcing lawyers to focus on what really matters.

There is a legitimate debate about time limits, especially in family court, where trials tend to be measured in hours rather than days. But we’ll save that controversy for another time. This column is about the “how,” not the “whether.” If your judge has imposed time limits, how do you make the most of it?

The most important thing is to trim down instead of speeding up. Our lawyerly impulses fool us into thinking everything we have to say is critical. If only we could get it all out there, surely we’ll prevail. These are the same impulses that tell you to cram things into 10-point footnotes to make the page limit instead of tightening up your prose.

But that’s not how persuasion
works. More isn’t better. The
number-one complaint
we hear from juries is
that the lawyers took
too much time and re-
peated the same things over and over. And it’s been my experi-
ence that juries reward brevity. So instead of scrambling to get
through 30 questions, ask the 10 best. Too often, I see lawyers
with two or three strong points drown the good ones in a sea
of gotta-cover-everything.

Which leads to my second point: Keep your eye on the clock and leave yourself a cushion. Too often, lawyers meander through their first few witnesses, and then struggle to get in everything they need with the last ones. From the get-go, plan to finish early. Then, when something unexpected comes up, you can deal with it. And if you do finish early, you might get bonus points from the jury.