Rules of Engagement

Clients and military defense counsel know I have Rules of Engagement (ROE), yes I call them that, for the client to follow, and which I often have for the Members to follow in contested cases.

I have ROE for the Court too.

1.  Be nice (not condescending) to the court-reporter.  Don’t walk off with exhibits, always return them once you’ve used them, and ask her before leaving the court for the day or at the end of the trial if you “owe” anything (like missing exhibits, or an appellate exhibit you’d told the judge you’d provide later).  I can’t remember how many times I’ve been saved in a trial by a comment from the reporter.

2.  Be nice to the Bailiff.  They can be a great resource during trial.  If I’m going somewhere else than the defense counsel offices I tell the bailiff so he knows where to find me.  (Although I never leave the building or it’s immediate surrounds if we’re on a short break or the Members are deliberating).  I might go out for fresh-air, the geedunk, whatever.  I’ve been saved in a trial by a comment from the bailiff.

3.  Be especially professional with the judge — not condescending, sycophantic, or whatever (and trial counsel).  If the judge gives you 10 minutes, and you need more time, go and ask, don’t just take it.  Judges usually give you time, they may be frustrated, but usually you get some time.  What you don’t get is the rocket on the record when you just take the time.

3.  Be nice to the Victim Advocate.  You will be surprised.

4.  Be professional with prosecution witnesses.  You will be surprised.  I cannot tell how many times they’ve come to me for simple questions like what’s going on.  For some reason trial counsel don’t seem to let their witnesses know what is going on in the case.  I tell them during witness interviews.  (I have ranted elsewhere about TC’s who don’t seem to know and follow the VWAP.)  I chat with the witnesses.  They moderate their testimony, because you’ve been the only one to help them, it’s human nature.

I go in the order above.

So here’s an interesting case to read.

In the Matter of Moity, USDC No. 3:07-MC-1 (5th Cir. April 7, 2009).

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