Chapter XVIII: Court Tactics

I. Introduction

I know that all of you have watched movies about the law. You’ve seen how attorneys get up in front of juries and thunder away at injustice and evil. They use procedural technicalities to win cases like magicians. You think attorneys score points by getting in those needling little jibes at the other attorney, the quick witted wise cracks with the perfect timing. This has nothing to do with the law. This has everything to do with pissing off Judges so that they will not find in your favor. Judges place great stock in organized presentation of evidence. They place very little stock in courtroom antics.

Once again, I present you with the following information, not so that you can read it and be instantly qualified to bring your case to Court, but rather to give you a better understanding of what happens in a trial, how to act, and how much you need an attorney to act as an objective, knowledgeable, dispassionate observer and advisor.

II. Organization

Organization and preparation are key, but difficult for a lot of people. If you are a disorganized person, you are at an almost insurmountable disadvantage. Your landlord is either organized, or has hired someone who is. Organization and preparation usually win when it comes to a court battle with your landlord.

While your landlord has organization as his strongest weapon, you have energy on your side. If you are a student tenant (the ones most at risk in landlord tenant law), you should have boundless energy and creativity. If you can couple this with organization and a good set of facts, you will be a formidable opponent for your landlord.

You must tell your story to the Court in an organized manner. Courts are places of organization. They are their own bureaucracy, and they think along those same lines. Your landlord is something of a bureaucracy too, especially if you live in a multi-unit building. Your landlord understands the bureaucratic process from having done it so long.

Whenever you make a presentation, you want to have your ducks in a row. Nothing sucks confidence and credibility from your arguments more than an advocate who is fumbling around for things in messy pile of documents. When you want to show your lease to the Court, you should be able to find it immediately and hand it to the Judge. The video tape of your apartment should be rewound to the starting point. The Judge will not be filled with confidence as you fast forward through the end of a taped football game to get to what you need to show him.

A. Trial Note Book

How do you organize your documents? For those of you in school the answer is easy. The invention of the three ring note book with dividers is the answer to your problem. Below are the sections and how you want them organized.

1. The Opening Argumtent

Judges hear too many cases every day to be able to remember what yours is about as they walk into the Court. Your opening argument is your chance to remind and reorient the Court as to what is going on. So long as your opening argument is short and to the point, the Judge will greatly appreciate it because after hearing a good opening argument, he will not be quite as embarrassed about walking into the Court a few minutes earlier not having the slightest idea of what is going on. He will be able to categorize the case in his mind as follows: “Aha. Landlord tenant case, tenant wants deposit back.”

Don’t read your opening argument to the Court. Have an outline of it and tell it to the Court in your own words. What follows is an excellent introduction:

Your honor, my name is Adam Smith, and this case is about a wrongfully withheld security deposit. I entered into a one year written lease with my landlord on May 3, 1999. The lease was for the apartment at 123 Main Street, Columbus, Ohio, Apartment One. I paid a security deposit of $500.00, and the rent was $500.00 per month. I moved in on the first day of the lease, September 1, 1999. The apartment was in poor condition, the following things being wrong with it. [list examples]

I paid the rent every month, and then I moved out at the end of the lease on August 31, 2000. I sent the landlord my forwarding address and he got that letter on August 20, 2000. He sent me a list of deductions from my deposit, none of which are proper. I am asking you to award me my security deposit back in the amount of $500.00. I am also asking for another $500.00 in double damages under Ohio Revised Code Section 5321.16(C). Thank you.

The above was short, too the point. Now the Judge knows what went on and why you are taking up his time. Don’t try to sound like a lawyer. Judges get enough of that. Be different. Sound like yourself. Don’t go in for all this “May it please the Court” and “Consequently, per se, your honor” jazz. Nothing sounds dumber to a Judge than someone trying to sound like an attorney.

The Opening Argument section of your trial notebook should have the above argument outlined on it. Even though you know the facts by heart, it’s easy to freeze up. When you do freeze up, it helps to have an outline of all of the important dates, times, and amounts sitting right there at your finger tips.

2. Your Evidence Section

You should have four copies of every document that you want to show the Court. There will very likely be evidence stickers at the Bench that say “Plaintiff’s Exhibit ___” or “Defendant’s Exhibit ___.” Ask the Court Reporter or Bailiff if you can have some of these on an earlier trip to the Courthouse to scout out the territory.

Let’s say that you have five exhibits. The first is a copy of your rental agreement. Many rental agreements are printed on 14 inch paper. It’s okay to have your lease shrunk down to 11 inch paper so long as you can still read all of the terms (note, if your Judge is elderly, you may want to keep things at their original size to make it easy on his eyes). You should have four copies of the rental agreement, and there should be a sticker on each one marking it as “Plaintiff’s Exhibit #1″ (if you are the Plaintiff).

Your second exhibit might be a check in the amount of $500.00 with “security deposit” written in the memo section. Your third exhibit might be a video tape of what the place looked like on move in. You don’t need four copies of this tape, but two might be handy so that you will still have one after leaving the original with the Court. Your fourth exhibit might be the tape of your apartment at move out. It is difficult to store video tapes in a trial notebook since they are loose. So you should get one of those plastic pouches with a zipper on them that are three hole punched on the left side. Put the stickers directly on the tapes. Make sure they are rewound to their starting points. Your fifth exhibit might be a copy of the letter that you sent to the landlord giving him notice of your forwarding address for the return of your security deposit. Your last exhibit might be the security deposit forfeiture notice that the landlord sent out to you.

The reason that you have four copies of each document is because you will need one to hand the other attorney, one to hand the witness, one to hand the judge, and one to refer to as you ask questions about it. It is imperative to have them all ready, pre-marked, and paper clipped together in your three ring trial notebook.

Each group of four copies should have a one page list of questions that stays with you in your trial notebook. On this paper will be the authentication questions and then the testimonial questions you will want to ask. Every piece of evidence needs to be authenticated before it is formally introduced. Authentication questions introduce the piece of evidence to the Court. They show the Court that there is some relationship between the evidence and the issues to be decided such that it warrants the Court’s time to look at it. An example:

You: I am handing you what has been marked for identification purposes as Plaintiff’s Exhibit Number One. Could you tell the Court what that is?

Landlord: That is the lease that we signed for the apartment.

You: When was that signed?

Landlord: May 3, 1999.

You have now provided the Court with sufficient information so that it can see that the evidence is related to the proceedings. The Court can now give it whatever weight the Court deems it deserves.

The questions you ask your witnesses should move through your story. Don’t start out asking what the apartment looked like when the landlord got it back. Take the Judge through the rental agreement signing, then onto the day you picked up your keys and moved in. Take him through your history of rental payments if those are at issue. Then take him through your leaving the apartment, and turning in your keys. Ask him what it looked like when he got it back. Ask him if he got your forwarding address for the return of your deposit, then ask him if he sent you an itemized listing of the damages.

Along the way, have him identify pieces of evidence. When you are asking about the rental agreement, ask him if Plaintiff’s exhibit one is a copy of it. When asking about whether he got your forwarding address, ask him if Plaintiff’s Exhibit ___ is a copy of it. Some Courts prefer that you move to introduce each piece of evidence as you show it to the witness after it has been authenticated. But other Courts (and this is the more common practice, especially if you are trying the case to a Judge) want you to move to admit all of your evidence at the end of you presentation of evidence. At that point, objections to admission of the evidence are typically heard and ruled upon and exhibits are either admitted or excluded.

3. Closing Argument Section

You will want an outline of your closing argument. You do not want this to be a word for word script that you read to the Court. Things will get said during testimony that you will want to re-emphasize to the Court. If you have a well spaced out outline, you can pencil stuff in between the lines where it fits in best. You want to restate the facts, show how they relate to the law, and then inform the Judge one last time what you are asking for.

4. Case Law and Statute Section

If your argument depends upon a certain statute or the ruling of a case that is on point, then you want to have a copy of such statute or case at your fingertips with the important provisions highlighted and tabbed so that you can turn right to them. This is especially the case if you are relying upon unreported opinions. If you are using such opinions, you must produce a copy of them to the Court and the opposition.

III. Being Nervous

It’s okay to be nervous. No matter how much you prepare, you will be a little scared when you get up in front of the Judge. Being a little scared can work in your favor. It shows the Judge that being here is important to you. It reminds the Judge that you are the little guy that he is supposed to protect. It will make the Judge forgive a few of your mistakes. It is hard for the Judge to think of you as a smart ass punk kid if your voice is shaking a little bit at first.

A. Limiting Nervousness

Too much nervousness is not good. There are ways to take the edge off. Go to your Court on days when you are not scheduled. Sit in the back row and watch the proceedings. Watch how the attorneys conduct themselves. Watch how the Judge runs the Court, especially your Judge if possible. Watch how the Bailiffs and secretaries do things. Take notes. Feel free to ask them questions during the breaks if they have a spare moment (but don’t ask them for legal advice). A good question might be, “Excuse me, but I have a case in front of this Court in a few weeks time, and I was wondering if there is any rule about which of the two counsel tables I sit at.”

You might find that the Court will be deserted in the late afternoon. Ask around, but there probably won’t be anyone that has a problem with you rehearsing your opening and closing arguments in the empty court room. Try to do this in your courtroom. Be friendly with the Court staff. If they like you, things will go very easily for you. If you piss them off, they will probably speak to the Judge about you in less than glowing terms.

IV. Three Stages of a Trial

The three stages of a trial can be broken down as follows. In the first stage, your opening presentation, you tell ‘em what you are going to tell ‘em. In the second stage, the presentation of evidence, you tell ‘em, and in the third stage, the closing argument, you tell ‘em what you told ‘em. Pretty simple? You bet. Keep it that way.

A. Opening Argument

Keep this section simple. Illustrate where your arguments are going to go, and how the evidence will link up with your arguments. But don’t allow yourself to try to testify during this period. This is a movie preview, like you see before the main event. It should be the roadmap, not the trip. You are using this opening argument to remind the Court of who you are and why you are here, because the Court has hundreds of other cases on its mind that are just as important as yours. Don’t try to introduce your evidence. Keep it short. Don’t repeat yourself. Don’t try to score points.

B. Presentation of Evidence

You need to have the confidence in your evidence, preparation, and yourself to let your evidence speak for itself. This is very difficult, even for attorneys. People always want to put a spin on the evidence. The Judge does not want to see spin, he wants to hear the evidence speak for itself. The art of winning is letting your evidence do the talking. Let’s look at an analogy from another context.

A cop is walking along on his patrol and he gets a radio call informing him that the local convenience store has just been robbed. The suspect is said to be wearing a red shirt and dark blue jeans and was last seen in a foot chase with other officers. James Innocent gets out of his car after the long drive home from work and is walking up the sidewalk to his house. James is wearing a red shirt and dark blue jeans by chance.

Directly in front of him is a young man, about the same age and height, wearing the same clothing, walking nonchalantly along the sidewalk. The Police Officer rounds the corner, sees them both, and orders the two of them to stop. He knows that one of them is the crook.

The Police Officer tells them both that he is looking for suspect that just eluded other officers in a foot chase after robbing the convenience store. The crook immediately starts protesting his innocence upon questions by the Police Officer. He is extremely convincing, having lived the life of a con-man. James Innocent is a little befuddled as he is just home from work, tired, and has no idea what is going on. The Police Officer has to choose one. James touches the left side of his chest and says to the Officer: “Feel my heart, then feel his. That will tell you who was in a foot chase with the police.” The Police Officer feels James’ heart, then puts his hand on the crook’s chest. The cop realizes that the crook’s heart is beating a mile a minute, while James’ heart rate is normal. James wins the argument by letting the evidence speak for itself.

The above example contains all the elements of a trial proceeding. You have two advocates, James and the Crook. You have a Judge (in this case the Police Officer). You have evidence, the heartbeats. Why would James want to get into a long diatribe about how the human heart increases its rate of operation during a foot chase? Why would James want to tell the cop what he was feeling as the cop felt his chest? Those statements detract from the power of the evidence. The evidence spoke so eloquently that the best lawyer in the world could not hope to match it.

The best reason to let the evidence speak for itself is that people tend to value their own conclusions and realizations more than the ones which others point out to them. That’s because their conclusions are their own. They take pride in them. When you let the evidence speak for itself and the Judge comes to a realization that favors you, the other side’s attack this realization, is an attack on the Judge’s own mental process.

Let’s take a courtroom example. Your landlord claims under oath that he never got your forwarding address for the return of your security deposit. Here’s what not to do.

You: Are you aware that you are under oath?

Landlord: Yes.

You: And are you aware of the penalties for perjury?

Landlord: Yes.

You: I’m going to show you Plaintiff’s Exhibit Three, which is a post office return receipt that shows that you are lying because it proves that you got my forwarding address letter on September 4, 1999.

Landlord: I may have been mistaken earlier. I have so many tenants.

You: No, you were lying weren’t you? Weren’t you?

Rather, the questioning should go something like this.

You: You never got my forwarding address?

Landlord: No. I never got your forwarding address. You just left.

You: I’m going to show you what has been marked for identification as Plaintiff’s Exhibit Number Three
[Hand out copies to Judge and other counsel]. Can you identify that for the Court?

Landlord: It’s a letter with a return receipt.

You: Is that your signature?

Landlord: It appears to be.

You: [Hand Plaintiff’s Three to the Judge] My next question concerns….

Now you may read the two accounts and think that the first one has a lot more spark and excitement, and it does if your landlord breaks down and starts weeping and admits to the Court between sobs that he is sorry for swindling your money and that he should be led off in chains and beaten about the head and neck. You see this kind of drama all the time on TV and in the movies.

But the second line of questions speaks louder to a Judge. The Judge can look at your letter and see that the date was August 20, 2000. He can look at the return receipt and see that the landlord signed it on August 24, 2000. He can draw from his own experiences that the mail usually takes about three days. Now it dawns upon the Judge that the landlord is lying.

Sometimes, you don’t even want to catch the landlord in his lie until a bit later on. The following passage is an example of how to do this.

You: What did the Apartment look like when you got it back on September 1, 2000?

Landlord: You guys had lived like pigs the entire time you were there and it showed. The apartment was waist high in garbage, the refrigerator was tipped over in the kitchen, and there was a dead cat in the sink.

You: How long did it take you to clean it up?

Landlord: It took my work crew four days working eight hour shifts to get it ready.

You: Who was on your work crew?

Landlord: Mr. Wayne, Mr. Rogers, Mr. Sullivan, and Mrs. Miller.

You: Are they all here today?

Landlord: Yes, and they will all testify.

Once you have the landlord on the record committing to his version of what the apartment looked like, and you are done asking questions to the landlord, then you call all of the landlord’s witnesses up to testify to the same thing. The Judge is going to wonder what in the world you are doing, and why you are calling witnesses who are backfiring on you. Then you call your witness that made the video tape of the apartment on the last day of the lease term.

You: What did the Apartment look like on the last day of the lease?

Witness: You guys had done a really good job of cleaning it up. It even smelled clean.

You: Did you do anything to document the condition of the Apartment on that last day?

Witness: Yes.

You: What did you do?

Witness: I made a video tape of the Apartment that showed its condition.

You: I’m going to hand you what has been marked for identification purposes as Plaintiff’s Exhibit Three.
Can you identify that for the Court?

Witness: That is the video tape I made of the Apartment.

You: Your honor, with your permission, I would like to play this tape for the Court.

At that point, you sit down and shut up. Let the tape speak for itself. The only questions you might want to ask while the tape is playing concern which rooms are which, because sometimes it is difficult for the viewer of a tape to orient himself with the layout of a residence as the video tape runs. Don’t detract from the power of your video tape with stupid questions like “You don’t see any garbage in the place do you?” or “Is there a dead cat in the sink?” At the end of the tape, just rewind it and put it in with a group of your exhibits for formal introduction into evidence.

I once took a creative writing class in college, and the professor was very fond of saying “Show, don’t tell.” In other words, don’t tell the reader that your character was nervous. Write that his hand was shaking and he dropped his glass on the floor. The idea then is the same for presentation of evidence in court to a Judge. Let him figure a few things out for himself. That way your arguments will become his conclusions, and he will defend those conclusions against attack from your opponent because he took pride in thinking them up. Remember though that with juries you cannot always afford to be so subtle. George Carlin once said that if you are tried by a jury, you are tried by 12 people that were not smart enough to get out of jury duty.

C. Closing Argument

Now it is the time to tell ‘em what you told ‘em. Briefly go through your story again. Point out how your version and the landlord’s version differ, and how the evidence shows that each time, your side of the story is what really happened. Point out how the law and the facts come together in a way that judgment in your favor is appropriate.

A trial is all about telling your story to the decision maker and getting him to agree with you. Note that I did not say, forcing him to agree with you. Because you are trying to convince the Judge, you need to direct all of your evidence, testimony, and theories to him. I see a lot of lawyers who try to argue with me in front of the Judge. They direct their comments and questions directly to me. I never even so much as look in their direction. My entire focus is on the Judge, the center of my particular universe. Why would I even want to speak with the other attorney while Court is in session? I don’t have to convince the other attorney to win.

Bad lawyers argue. Good lawyers persuade. Good lawyers keep it short and simple.

V. General Courtroom Tips

A. Know When To Sit Down and Shut Up

The first legal argument that I ever got to make in a Court to a Judge was in a divorce case. The issue was very easy (there was an Ohio Supreme Court decision in my favor). I went through my argument in about 45 seconds, and found that I was starting to repeat myself. At that point, I sat down and said nothing further. The other lawyer got up and spouted the biggest raft of legal nonsense and obfuscation that I had ever heard. I wanted to get up and refute him point by point, but it was not my turn to talk.

I was busy writing down all of the stupid things that the other attorney said and how I would counter them one by one when I noticed something. All the time that I was talking, the Judge didn’t seem to be listening to me. He was writing something on his legal pad. When my opponent was talking, the Judge wasn’t writing anything. He was just looking intently at my opponent while this guy was rambling on and on. I thought I was done for.

But I was making a rookie mistake. What I thought was a lack of attention on the part of the Judge during my argument was actually very focused attention. When I cited to my Supreme Court case, he wrote down the cite and a short synopsis of what I said it stood for. But by looking at my opponent and not writing anything down, he was completely ignoring my opponent because his arguments were legally untenable. They were not worthy of his notation. I learned that when you score a point in Court, you’ll know it because the Judge makes a note on his legal pad. He will not smile, or nod, or jump to his feet and yell “Give ‘em hell, counselor!” My client at the time didn’t think that I did a very good job because the other guy got to do all the talking and I only spoke for less than a minute. But the client’s mood and opinion of my legal skill improved when he got the ruling in his favor.

B. Never Be Anything But Polite and Respectful To The Other Side (Especially If They Are Being Rude To You)

On another instance, early in my legal career, the other attorney was going on and on trying to obfuscate some rather clear law, and he let this gem drop on me: “Your Honor, I don’t know what they are teaching these kids in law school today about civil procedure, but . . .” I thought about getting up and letting him have a full scale barrage, reiterating all of my arguments and challenging him to answer them, but then the Judge, who had been peacefully dozing, was awakened by the comment of my opponent.

“Well, how do you address Mr. Willison’s argument on the first issue he raised?”

“Well your Honor, I think that . . .”

“I don’t care much about what you think. What does the law say?”

“The law is unclear on that point, you see…”

“It doesn’t seem unclear to me. It seems like a rather simple issue.”

“It’s not a simple issue . . .”

“Maybe you just don’t understand it, counselor.”

“Well, your Honor…”

“Let’s move on to some other more reasonable argument, counselor.”

During this back and forth between the Judge and the other side, which was getting nastier and nastier, I just sat quietly. My client leaned over and passed me a note asking: “Aren’t you going to get into this?” I passed a note back. “No!” I didn’t have dog in that fight. What could I have added other than something like “Yeah, your Honor, good point. Kick his butt.” The Judge was making all of my arguments, the other attorney was arguing with the Judge (the decision maker) and all was right with the world as far as I was concerned. When the Judge had finally had enough of the other side’s folderol, he ended the proceedings. I got up to shake the other attorney’s hand, but the guy was already out the door and heading home. The decision was in my favor.

C. Watch For Body Language

Watch the Judge’s body language when he listens to arguments. If you get the sense that the Judge has already made up his mind in your favor, quit trying to convince him. Move on to your next strong point. Crossed arms often mean that the Judge is in disagreement (or the air conditioning might be on a bit too high). Move on to your next point. If the Judge uncrosses his arms and leans forward, then he might be more likely to accept an argument if you show how the evidence nicely dovetails with what you are arguing.

D. Don’t Be Put Off By Questions From The Bench

Many lawyers hate it when the Judge interrupts them or the proceedings and starts asking questions. In reality, this is a golden opportunity. The Judge is showing you his inner thought process. If he starts asking about when the keys were returned to the landlord, then you know that this is important to him for some reason. If you can apply the law and figure out what he is getting at, then you can be well ahead of the landlord, and maybe even the landlord’s attorney. Note the answer to the Judge’s question in your closing argument in support of your points.

Here’s an example. Let’s say your case rises and falls upon when the Court determines that you gave possession of your apartment back to the landlord. If you gave it back by the end of August, you win. If you gave it back in September, the landlord wins.

You: When did your lease end?

Jim [your roommate and witness]: On August 31, 1999.

You: When did you send the landlord your forwarding address in writing?

Jim: In July of 1999.

You: When did you vacate the Apartment?

Jim: August 21, 1999.

You: No further questions, your Honor

Court: I have a question, when did you return the keys to the landlord?

Jim: On August 31, 1999.

Court: Thank you.

The Court has just told you that one of the important factors it will consider regarding possession of the Apartment is when the keys went back to the landlord. Stress the fact that the keys were returned on August 31, 1999 in your closing argument.

E. Don’t Get Sidetracked

At all times during your case, remember what you are there to establish. Remember the old saying that when you are up to your ass in alligators, it is easy to forget that you are there to drain the swamp. If you are trying to get your security deposit back, and you have a video tape of the apartment’s condition at move out and your landlord has been lying to the Court and you caught him with the tape, the case is over. All you need to do is stay on message and go home when Court adjourns.

But your rental agreement had a no pets clause and you had a dog the whole damn time. The other attorney is asking you question after question about the dog, and you are arguing that the landlord knew about your dog, but took no action, or that you paid an extra pet deposit, or that your landlord said don’t worry about the dog clause, have a pet anyway, or that the dog was only there a few times. Stop. What are you doing?

Is the landlord claiming that the dog damaged the premises? No. Your video tape proves that the dog did no such thing. Then whether or not you had a dog has no relevance to your case. Why argue it? You should sit tall in the witness box and say: “Your Honor, I had a dog, and the lease said I wasn’t supposed to. As the tape shows, it did no damage.” What is there more to say? If the other side’s attorney keeps hounding you on it, keep politely answering the questions, but eventually the Judge is going to get tired of it and instruct the other attorney to move on. But quit arguing about it. It merely clouds the focus of your case. The other attorney is trying to get you off message. He is trying to make a simple case into a complex one, and by arguing every time the dog came over for a weekend rather than a week, you are going off message and the other side is taking the initiative. Stay on target. Stay on message. Keep coming back to your strong points.

You should never argue with opposing counsel or the other side while you are testifying. This is because the Judge does not want to hear argument during testimony. He wants to see and hear testimony and evidence. If you feel like you want to argue, then address all of your answers to the Judge. That will make you less likely to argue during testimony.

When you are asked a simple question, give a simple answer if at all possible. There is a tendency is all of us to want to explain an answer that seems to hurt us first before giving it. Do not do this. Give your answer first and then explain your answer after it has been given. The appropriate phraseology is not “Blah, blah, blah, so the answer is yes.” The appropriate answer is “Yes, but to explain that, blah, blah, blah.”

You should never get angry with opposing counsel. That is because angry people react without thinking. You need to take time to think about your answers before you make them. There is no rule that says that you have to answer at once. You can sit there for a few seconds and think about things. But when you are angry, it will be difficult to think clearly. That is why the other attorney is being such a jerk to you, because he does not want you to think, he wants you to react. So always sit there and act like you are an unflappable Ghandi on the top of a mountain with a rose in one hand and some book of important sayings in the other. Nothing angers a person more than a person that refuses to get mad, and your opponent will go to greater and greater lengths to get your goat and take it out for a walk. Eventually, the Court will lose its patience with the other side and issue stern warnings.