Dec. 16, 2015 – By the time a client walks into your office, much about his or her case will be beyond your or the client’s control. The underlying events have occurred; the relevant laws are in the statutes or the case law reporters.
What remains very much within your control are your interactions with the individuals who will help to make and decide the case: jurors, witnesses, and the judge. But according to Wisconsin Trial Practice, while some of the rules for communication to and with these trial participants are clear and unambiguous, others are not.
Interviewing the Jury Array
Is it appropriate for counsel to use voir dire to establish rapport with prospective jurors? The authors of Wisconsin Trial Practice state that questions to specific individual jurors are an opportunity to form an impression of the juror, establish rapport, and make each juror feel important. According to the chapter’s judicial commentator, however, the judge might see an attempt to establish rapport as also an attempt to gain an advantage (given voir dire’s statutory purpose of eliciting bias and obtaining an unbiased jury) and criticize counsel for the rapport-building questions.
Another topic is the content of voir dire questions. The Wisconsin statutes state that “hypothetical” questions are not allowed. But as the authors point out, hypothetical questions are not always easy to identify. Asking the jury whether, if the evidence warrants, it would be willing to award punitive damages to punish a party might be deemed a hypothetical question. It also is a relevant inquiry to the voir dire panel in a case involving a punitive-damages claim. Most seasoned trial judges will ignore these distinctions and allow questions that are arguably hypothetical. As to this issue, the judicial commentator does not disagree but does offer additional advice for resolving potential problems: “If the judge is unbending on allowing a ‘couched’ hypothetical, counsel might consider requesting the court itself to determine an appropriate and neutral inquiry….”
Also hazy is the use of “leading” questions during examination and cross-examination of witnesses. Section 906.11(3) states that leading questions should not be used in direct examination but case law holds that the court can allow leading questions at its discretion. As with hypotheticals, leading questions are not always easy to identify. After listing some typical qualities of leading questions, the judicial commentator to Chapter 5 explains that “[w]hether to bar an improper leading question is discretionary with the court. Leading will often be permitted by the court when it is not prejudicial and will save time on nondisputed issues.” This is an area in which what might seem obvious and correct to one side’s lawyer – “I should object to these leading questions” – can conflict with the ultimate goal of communicating well with jurors so as to persuade them to side with the lawyer’s client, because, as the judicial commentator suggests, jurors are likely to become annoyed with a lawyer who makes “too many” objections.
Communicating with the Judge
As illustrated by the examples above, judges have broad authority over counsels’ communication with jurors and witnesses. The experienced litigators who write and update Wisconsin Trial Practice emphasize the court’s role from counsel’s perspective; the book’s judicial commentators help demystify it from their personal experience on the bench. The judicial commentators focus on the efficient and effective conduct of trials, but they take the time to steer lawyers away from potentially embarrassing courtroom situations, as well.
2015-16 Supplement Now Available
Wisconsin Trial Practice, now in its third edition, covers all steps of a trial, from preparation (Chapter 1) to judgments (Chapter 15). The 2015-16 supplement discusses recent case law and statutory developments, with topics including use of the prosecution’s statements to attack the credibility of a prosecution witness; juror inattentiveness during closing argument; jury instructions; and the court’s duty when receiving requests or questions from the jury.
Wisconsin Trial Practice is available both in print and online via Books UnBound®, the State Bar’s interactive online library. The print edition is $179 for members/$229 for nonmembers, and the Books UnBound edition is $149 for members and $189 for nonmembers.
Subscribers to the State Bar’s automatic supplementation service will receive future updates at a discount off the regular price. Current full-library subscribers to Books UnBound automatically receive these updates.
For more information or to place an order, visit WisBar.org’s Marketplace via the links above or call the State Bar at (800) 728-7788 or (608) 257-3838.