INTERVIEW

Interview with Justice Maria Rivera, recently appointed to the California Court of Appeal, First Appellate District, and Don Miles, a San Francisco attorney emphasizing employment law, insurance, bad faith, and product liability litigation. Don Miles is the author and Justice Rivera has provided judicial perspectives for CEB’s Action Guide: Laying a Foundation to Introduce Evidence (Preparing and Using Evidence at Trial) Winter 2001.

Don, I know that you’ve been involved with this particular Action Guide since the beginning. How did it come about?

Don Miles: I was teaching at Hastings in the early 1980’s and I realized that there was nothing out there that provided a very simple guide on how you put evidence into trial, a straightforward step-by-step approach. So I wrote a primer for the California Civil Litigation Reporter covering the basic foundations for introducing evidence. An invitation from CEB followed to write a new chapter on documentary evidence for the second edition of California Trial Practice: California Civil Procedure During Trial. I wrote it with Rudy Brewster, who became a federal judge in San Diego. Our plan was to make the chapter more user-friendly and action-oriented, and from that came the suggestion that we create the Action Guide, a pragmatic checklist for attorneys to have available both before and during trial.

What are some of the common mistakes that get made around the presentation of evidence?
Justice Rivera: My personal pet peeve, having been on the trial bench in the last five years, is the apparent inability of civil attorneys, in particular, to lay a proper foundation for certain kinds of evidence, such as expert testimony, introducing documents and refreshing witnesses’ recollections. It isn’t that difficult to do, but the inexperienced attorneys tend to leap over the necessary aspect of laying a foundation and assume that because the other side has stipulated to authenticity, all they need to do is say here it is. As a result, there is a lot of correcting that needs to be done at the trial level.

Don Miles: The first common mistake is just a lack of knowledge about the need to lay a foundation in order to get the materials into evidence. The other common mistake is forgetting to do something significant with the evidence once it has been accepted. For example, an attorney may put a document into evidence and then forget to read the critical content to the jury. There is somehow an assumption that because the document is in evidence, it will have an impact on the trier of fact. Unfortunately, it doesn’t happen that way.

What are the three most important points for an attorney to remember in presenting evidence?

Justice Rivera: First, the attorney must establish that the evidence is competent, for example, not hearsay; and second, the attorney must determine that the evidence is relevant. A lot of times, trial attorneys will want to put something into evidence that really doesn’t belong there. Third, I would say from my experience, that an attorney should be asking if this evidence is necessary to prove the case. I have found, particularly with civil attorneys who don’t have as much experience as criminal trial attorneys, that they introduce a lot of evidence that is tangential to their case, making for a very unwieldy presentation. It confuses the jury and creates evidentiary objections that could have been avoided.

Don Miles: I think what Justice Rivera is saying is that if you introduce too much smoke during the trial it is sometimes difficult to find the gun. I also come down to three critical themes. How, when and why. How are you going to get the evidence in; when are you going to introduce it during the trial, which has a huge impact on how the trial goes; and why are you introducing this piece of evidence, which goes back to Justice Rivera’s point of whether you need to introduce it at all.

What are the key steps that an attorney can take before the trial in preparing to lay a foundation for evidence?

Don Miles: Please refer to the Action Guide. There are pages and pages in it of ways to prepare in advance of the trial. For example, there’s a lot that can be done with discovery stipulations that will make your trial easier, but you have to think about it early enough to come up with a plan. There’s also a need to think about which witnesses are required to lay a factual foundation for getting materials into evidence, what documents are available, and whether you need to go out-of-state to obtain testimony. I come back again to the how, when, and why issues. Going through the steps laid out in the Action Guide will help attorneys understand the strategic and practical considerations that should be considered for each item of evidence.

Justice Rivera: If the attorney is expecting an objection from the other side, I would encourage preparing an evidentiary memo in advance to present to the court. It’s very annoying if, in the midst of a trial, the attorney is not prepared to argue a fine evidentiary point, such as a code section that they are relying on, or a case that they are citing to get this controversial evidence in. The court ends up with down time because a conscientious judge is going to want to stop and check the law. So, preparing in advance for a critical piece of evidence that is going to be controversial is very important.

Has the introduction of technology in the courtroom greatly changed the presentation of evidence?

Justice Rivera: The Action Guide is a useful tool for explaining how to lay down a proper foundation for presenting technical evidence. Again, we encounter problems where the trial attorney has a video tape and is under the impression that he or she can play it in court without making sure that it has been authenticated and the foundation laid. In my experience, there hasn’t been a dramatic change in the presentation of evidence due to technology unless you’re in one of these monster cases where you have people spending lots of money on both sides of the case, utilizing technology to the max. I have a friend who sits on the Superior Court who had a case, with two superb law firms and big corporations on both sides fighting each other, so there was plenty of money being invested in preparing for a very lengthy trial. They had so honed their technology that they were able, when a witness was on the witness stand, to have that witness’s deposition loaded into a computer. Whenever a question was asked on cross-examination to impeach that witness, the deposition transcript was flashed instantaneously on the computer screen. A person was operating the computer while the trial counsel cross-examined the witness, and in a split second they could come up with the exact citation to the record in the deposition transcript and flash that citation up on the screen for the courtroom to see. That’s very effective. The reverse side of that scenario is when you have all this technology and you don’t really have anyone who knows how to operate it. There is nothing worse! It creates a lot of down time for the court.

Don Miles: “Technology” is a constantly changing reference. When I started trying cases, the Xerox machine was having a huge impact on how future trials were conducted. New technology continues to have an impact on how trials are conducted each day. Like it or not trial attorneys need to stay abreast of developments. Attorneys often don’t think that they need it to win their cases, but they frequently end up dealing with people who do know how to use it. An attorney may make a decision that they can’t afford to invest in trial technology, but that doesn’t mean that they won’t be confronted with it in the courtroom. An attorney always needs to prepare for the fact that the other side might show up well-armed. The other thing about using technology in the courtroom is that you have to assume that Murphy’s Law is in full operation. Prepare for the worst, such as a power surge or a glitch.

How important is it that the attorney spends time preparing witnesses in preparation for taking the stand?

Don Miles: Preparing a witness for trial is critical. If you don’t prepare your witness two bad things happen. First, as an attorney, you lack confidence and become afraid to ask questions. Second, and even worse, your witnesses lack confidence and they become afraid to give definitive answers.

Justice Rivera: It is absolutely essential for you to prepare the witnesses. Always make it clear to witnesses what their role in the case is, so that they know where they fit in context, and they don’t imagine that they need to do everything, cover everything, say everything. But witnesses should not be over-rehearsed. You don’t want it to sound like they have memorized a script. However, a great deal of time should be spent in preparing the witnesses for cross-examination. You should be really brutal while you’re doing it. The best compliment you can get from witnesses on your side is to have them tell you that your cross-examination was more difficult than the one that they actually had in the courtroom. Cross-examination is where witnesses really start to break down if they’re not prepared well.

What advice would you give to a witness?

Justice Rivera: Volunteer nothing. Only answer the question and don’t utter a single unnecessary word. Tell the truth, and you won’t have to remember what you said previously.

Don Miles: Use your intelligence and get a good night’s sleep the night before trial!

What are the primary reasons that evidence gets excluded?

Justice Rivera: Evidence Code §352, that the evidence will unduly prejudice the jury; and surprisingly, relevance. Lawyers tend to be prepared for the kind of technical objections that come up, but they really don’t spend enough time thinking through the other substantive objections, such as relevance to the case.

Don Miles: I would add, attorneys get into trouble when they have not adequately thought of the need to show requisite foundation, such as authenticity, substantial similarity for demonstrations, or some key component to a hearsay exception, that sort of thing. Then, when a “lack of foundation” objection is sustained, the attorney isn’t prepared to deal with the problem because he or she doesn’t know how. Technically, saying “lack of foundation” is not a good objection to preserve the objection on appeal, but if you make the objection in a trial court, many judges will honor it and may sustain it. Having sustained it, any good basis will be upheld on appeal. The trial judges often don’t give any further explanation other than that the attorney hasn’t laid an adequate foundation. The difficulty for the attorney proffering the evidence is that he or she might not have a clue where the deficiency lies. A lack of communication exists between the sides and the tendency, in this situation, is for the proffering attorney to move on in the hope that he or she can come back to it later. Some compassionate judges will offer guidance and, if this is the case, it’s important for the attorney to be sure to thank them later on.

Another problem is when the attorney has actually laid a complete foundation and it’s in the record, but the judge missed the fact that a witness had answered on a key component. In this situation, an offer of proof will frequently convince the judge that you’ve done what you need to do, or alternatively, you can repeat all the steps with the witness to show the court that you have done all that is required.

How much does procedure in a courtroom differ according to the presiding judge? What sort of differences should an attorney prepare for?

Justice Rivera: In my interaction with other judges, I have found that there is a dramatic difference in the way each judge handles evidentiary objections and that this can become very critical to a trial. It's very easy for trial attorneys to panic and fail to do something simple, if they are not prepared for the manner in which the judge handles the evidentiary objections. For example, in my courtroom I allow frequent and liberal use of the sidebar at a time when an evidentiary objection is made, even when there’s a jury. Very few judges I know would allow speaking objections in front of a jury. I had a colleague who categorically forbade counsel to approach the bench while the trial was going on, and told them at the beginning that if they wanted to argue an evidentiary point, they must state the basis for their objection and then await a break. This can be very disconcerting for the trial attorney because fifty other things can happen between the time of the objection and the break.

Don Miles: There are huge differences between how judges handle evidence in the courtroom. They have different procedures, they have their own idiosyncrasies, they have different attitudes as to how a rule applies to different pieces of evidence—and when you compare state versus federal judges, the differences become even more pronounced. It's extremely important to find out the courtroom procedures and preferences of the judge beforehand, so that you don’t violate them and may even take advantage of them in certain situations.

Justice Rivera: But you can’t rely on anecdotal tales about judges. It could be that the attorney in that particular case was way out-of-line, causing a particular behavior on the part of the judge. I recommend that attorneys go and watch the judge handle a case that is being tried. It’s very effective.

Don Miles: The other thing you can do is have a checklist of common differences among judges and take it with you to the chambers conference before trial. If you ask the judge directly for details of his or her particular preferences, the judge will generally be forthcoming. Sometimes, the judges even have handouts.

What are your thoughts about allowing media into the courtroom? Do you think that having the media present aids the process of justice?

Justice Rivera: There is a law that covers this and obviously each judge follows the law. My take on it is that as a general rule, public scrutiny of the judicial system is very important to keep everybody in the process honest. To have the public scrutinizing you when you are wielding power is one of the critical foundational aspects of our whole government. The concern of course is with the highly sensational cases where it becomes a media circus. In those situations, what needs to be done is to have a judge lay out strict rules as to what will and won’t be allowed. For example, I virtually never allow cameras in the courtroom. Sketch artists are fine, but cameras are too distracting. In all other respects, having the media there is not only what you are required to do, it’s a positive influence on the judiciary.

Don Miles: Media in the courtroom is one of those things that you hate but it’s necessary. If attorneys know that media are going to be there they need to prepare. There are many complications about having media in the courtroom. You need to sit down with your client to evaluate what is happening on a day-to-day basis. I think you need a press strategy to determine who is going to talk to the press, whether you are going to allow your witnesses to be interviewed, and whether you are going to spend money on media training. You can’t just ignore it because it does have an effect on the trial. You have to factor in the possibility that the opposing side is running two trials simultaneously; one in the courtroom and one that the jury sees on TV at night. You might need to consider hiring outside consultants.

What would you say is the most useful part of the Action Guide?

Justice Rivera: I think that the sample courtroom scripts are extremely useful. As a judge, there are many things that you have to do by rote. For example, there are certain points that you have to make sure that you cover in your plea so that they pass constitutional muster. Or you are sentencing in a criminal case and the law says you must look at a whole host of issues; you can pull all that together but if you haven’t done it before, you don’t know HOW to say it. The same is true of evidence. You can go to the code and find the law, but how do you say it in court? When I was a young judge, scripts were some of the most useful tools provided to me. They aren’t something that you use to the letter, but they are invaluable as a starting point to meld with your own style.

Don Miles: When we put the Action Guide together initially, we focused on two categories of reader. The first one is obvious—the inexperienced attorney. We created a checklist that would move those people along. The second major audience is the experienced attorney who needs a quick list of authorities, citations and objections that can be referred to and relied upon in court. The Action Guide provides attorneys on both sides with the best authorities to get evidence in or out.

What do you think is the best way to train a young lawyer for the courtroom?

Justice Rivera: They have to do trials. There are of course many more criminal trials, so if you are in a civil law firm, my advice would be to get into one of those programs where you can volunteer for the District Attorney’s Office or Public Defender’s Office. Deal with evidence and the jury.

Don Miles: Experience is good, but without guidance and supervision it can create a problem because people develop bad habits if they have not already been taught correct procedures. Traditionally, the best way to get people along the learning curve is to first show them how to do it well and then let them do it themselves. That is most of what the Action Guide is designed to do. To make attorneys feel more comfortable and a lot more prepared in court and to guide both experienced and inexperienced practitioners through the process of presenting evidence.

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