Practice Tips from Judge Rupert A. Byrdsong

Hi Judge Byrdsong,

I have been through a bunch of trials in my career but always in federal court and typically only a day or two long. I am getting ready for a bench trial in state court involving a business divorce and I want to make sure I'm ready. It's a few months away. Do you have any tips for me - or maybe any advice on avoiding common mistakes?

Judge Byrdsong’s response:

The first thing a true trial attorney should do in getting prepared for trial is to review the judge's pre-trial standing order. The pre-trial order will provide the precise roadmap for the attorney to follow, it will set forth deadlines for when things should be filed, and it will communicate the expectations of the judge who is going to hear your case. You can also get some valuable intel from the court's staff, the courtroom assistant and the judicial assistant. It is perfectly acceptable to ask those individuals about courtroom protocol and preferences.

Another opportunity to get information is during the Final Status Conference ("FSC"). The best trial lawyers use the time with the judge during the FSC to anticipate issues and to eliminate surprises. Parties need to follow the four Cs: communication, collaboration, coordination, and cooperation in putting together the joint  pre-trial documents. Communication means that the lawyers actually talk about the trial and the anticipated presentation. Collaboration means working together to prepare the joint documents. Coordination means assigning which lawyer is going to do which task. And cooperation means you are civil and accommodating throughout the whole process so that everything is done in a timely fashion.

Unlike what happens on television and the movies, transparency is the true way to be prepared for trial. Exhibits should be agreed upon well in advance of a witness answering questions about said exhibits. Making a party jump through hoops when everyone agrees that the documents are actually authentic and do not need a lengthy foundation will not be well-received. Providing the schedule and order for the witnesses is not simply courteous, it is required.

The obvious big difference between a jury trial and a bench trial is that the judge will be the fact-finder. A strong, persuasive trial brief will be beneficial for your side. Moreover, keep in mind that the court is a sophisticated witness. The same build up of the context and significance of evidence will not be necessary when presenting to the court. Therefore, your presentation should be modified accordingly. I remember I had a bench trial wherein the case boiled down to a battle of the experts. Neither side challenged the other side's expert's qualifications. I told them I would receive the experts' resumes into evidence and I asked them to cut to the chase by eliciting their opinions. I would go back and look at their experience after evaluating their opinions if I had some issues of credibility. We did not need to walk me through where they went to school and how they got their experience. Even after saying that, the attorney's first question was "so where did you go to school?" Not listening to the court is obviously a mistake to avoid.

Finally, Dept 28 has two maxims everyone is expected to follow: 1) Litigation is not poker; show your cards; and 2) try the case you have, not the one you wish you had. In poker, you can discard your bad cards and get new cards to improve your hand. Litigation is NOT poker because you cannot change the bad facts of your case to make it better. Whatever the facts are, they should be revealed to the other side so we can see right away who has the full house and who has the one pair. Trying the case you have will always be more sincere, more credible, and more focused. The fact finder can see when you are trying to pass off that caterpillar as a butterfly.

Be prepared for anything and everything when you go to trial.

Judge Byrdsong was appointed to the Superior Court of Los Angeles County in 2014.  He received his J.D. from Vanderbilt University Law School and practiced with Ivie McNeil & Wyatt in Los Angeles until being appointed to the bench.  Today he sits in Department 28 downtown on Hill Street. 

Picture in the PDF version of this article courtesy of Los Angeles Sentinel.

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