View from the Bench: What a Judge Wants You To See, with the Hon. Mark W. Bennett

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Welcome to another episode

of Verdict Academy,

where we bring you the best trial

lawyers in the country to share their top

three trial tips in 30 minutes.

This episode's guest is the

honorable Mark W. Bennett.

Judge Mark Bennett has been a trial

lawyer in over 20 federal courts,

has tried over 400 jury trials as

a federal district judge in six

districts spending the Middle District

of Florida to the District of the

Northern Mariana Islands. He's

taught at five law schools,

authored more than 25 law review articles,

spoken at more than 500 CLE

programs in 41 states and

several foreign countries.

He's mediated and arbitrated

more than 620 matters.

And perhaps most importantly,

he's won a hot pepper eating contest

judged by the Justice Clarence

Thomas.

Judge Bennett retired from the bench in

University Law School's Institute for

Justice Reform and Innovation and as a

meat eater and arbitrator with a

national practice. I can tell you,

I personally recommend an article he

wrote titled Eight Traits of Great Trial

A Federal Judge's View on How to Shed the Moniker,

"I am a litigator," which is in

the review of litigation and on his

LinkedIn profile. If you are a student

of all things jury trial, as I am,

I strongly recommend you follow

Judge Bennett on LinkedIn where his

thought-provoking and insightful

ideas about the jury trial are a

must-read. Judge Bennett,

welcome to Verdict Academy.

Thank you so much, Kevin. It's

a great honor to be here today.

I very much appreciate it.

It's a great honor to have you on.

We're going to get into the format of

the show is three trial tips to our

younger and less experienced attorneys

and even older folks like me.

But before we get there, Drew, you

obviously love jury trial, right?

It's a passion of yours?

Yes.

Yeah.

I believe the Seventh Amendment.

Oh, you and I bleed the

same blood, my friend.

What drew you to become a courtroom

lawyer and then a courtroom judge?

Well, thank you. Did not come from

a family of lawyers. Matter of fact,

growing up, I didn't know a single lawyer.

My mother was very ill and died when

I was pretty young and I was raised by

an African American kind of

nanny that my father hired.

And when I would come home

from elementary school,

I would sit on her lap and we

would chat and I would ask her

about her growing up in the Twin

Cities, Minneapolis, St. Paul.

And I was kind of appalled by the

discrimination that she encountered in her

life. She was never bitter ever, but

just matter of fact. And I was curious.

And so I asked her a lot of questions.

And so from a very early age,

I knew I wanted to become a civil rights

lawyer and be a voice for people who

needed a strong advocate.

How old were you when you started

your relationship with her?

I was probably seven, six or seven.

Okay. And this is in the ... Which

timeframe are we talking about?

1950.

Okay. So obviously racial

justice issues, voting rights,

all that stuff was very hot topic and ...

Yes.

Got it. And so basically

at a very young age then,

you were driven to do

justice for folks like her.

Absolutely. Wow.

And you thought you could do that in a

courtroom as opposed to some other area?

Yes. Well, right around a year

or two after I met Tessie,

my father was a children's

dentist in downtown St. Paul,

and I would take the city bus from where

we lived, about a 20-minute bus ride.

And I'd go to the public library across

from where my dad's dental practice

was. And then I'd meet him for lunch and

then go back to the library and then he

would drive me home at the end of the day.

And one day I got bored and so I walked

a couple more blocks down to the Ramsey

County Courthouse in St. Paul.

And I went in and I just happened to

watch a trial and it was a burglary trial.

And I remember I didn't think the defense

lawyer was very good. And I thought,

"Well, gee,

why don't you ask these questions on

cross-examination?" And I thought,

"I think I could do a

better job than that,

being the precocious child that I was.

" And so that was my first

exposure to a courtroom. And

I thought, "I could do that.

" Wow.

Got a little taste at a young age and

you just can't get it out of your system.

Exactly. Still can't. That's right.

Incredible. So did you go to

college with knowing that, hey,

this is a path to law school

and a path to the courtroom.

Did you hate that whole mission?

Exactly. Yeah.

I know most people in law school

don't know what they're going to do,

change their mind three or four times.

I was just always focused on doing trial

work and I started off doing primarily

civil rights and employment

discrimination, although

I did a few other things,

but that was the primary

focus of my practice.

I also had a very substantial

First Amendment practice,

and that's the practice that got me

into multiple federal courts around the

country. In addition to some

of my civil rights cases,

I also did federal criminal defense,

and that got me into other

districts as well. All.

Right. Well, let's get to the heart of it.

We're going to have a nice conversation

here about these three topics.

Topic one, Judge Bennett, the use of

questionnaires for jury selection.

How do you feel about

those and how do you use.

Them? I'm a huge believer

in jury questionnaires.

And when I was chief

judge of the district,

we had a fairly kind of

standard questionnaire that

the administrative officer

rolled out to federal court,

which is basic information.

A lot of federal judges would give the

lawyers the morning of the jury trial

that information. I

thought that doesn't work.

So I expanded the questionnaire into

things that I would want to know if I were

a trial lawyer, and then we

did something that was unusual.

We sent those questionnaires

out well in advance of trial.

When they came into the clerk's office,

we sent them to the lawyers in

the case at least seven days

prior to the trial. We had

a random jury selector,

so we knew which of the first

14 jurors would be in the box.

We disclosed that to the lawyers.

We didn't disclose who would follow

them because that would affect a lot of

their judgments.

But I wanted them to know early on,

week before the trial started,

who were the 14 jurors.

They got copies of the questionnaires

from all of the potential jurors that were

being brought in.

They just didn't know who was going to

follow the 14 if some were challenged for

cause or excluded. And

then in major cases,

we did a case specific

questionnaire. So for example,

I had a trial that was scheduled

to last three months. It did.

And we took 14 days in jury

selection picking the jury.

We sent out that questionnaire

four months prior to trial to 400

prospective jurors. We got them all

back. It was sent out to the lawyers.

And then I had the lawyers meet

and confer and they agreed that of

that 400, 200 would just be

poor jurors for both sides,

and they eliminated those. And then when

we brought jurors in and small panels,

I think it was 15 per day,

they had all the questionnaires and

we had excluded the obvious ones that

neither side thought would be a good

juror. So we were able to run a ...

Even though it took 15

days to pick a jury,

we were able to run a much more efficient

jury selection because my whole theory

of being a trial judge was what was called

a jury centered approach to judging.

And the question was, what would I want

if I were a juror? And everything I did,

including my no sidebar rules,

I didn't allow sidebars,

was aimed at what would jurors want.

So as a huge believer in

jury questionnaires, I

thought for the most part,

when people were sitting in their living

room filling out a questionnaire and

had time to think about it,

they weren't in an intimidating,

beautiful federal courtroom

with 28 foot high ceilings and

very fancy courtroom.

They were more at ease to actually be

forthcoming about what they would say in

the questionnaire.

That's not to say that sometimes

once I got into the courtroom,

they would get answers that were

inconsistent with the questionnaire,

and that's okay because we could fare it

out why that was. But I was just a huge

believer in jury questionnaires and a

huge believer in getting that information

to the lawyers ahead of time so that

they could process and think about it and

not have to scramble the morning of trial.

I never understood why judges did that.

It made no sense to me whatsoever.

I'm laughing because

this is music to my ears.

This is a dream.

And this is what happens when you put

a trial lawyer on the trial bench,

someone who knows what they're

doing. Why is the rest of the bench,

especially the federal bench,

so tough on this issue?

So they either don't allow

a questionnaire or they do.

It's like three questions,

name rank, serial number,

and you get 62 seconds to do voir dire.

Why is the rest of the bench, I would say,

is it fair to say the rest of the bench

is not adopt this practice, Judge?

Would you agree with that?

Yes, I would agree with that.

I think there's a culture

in most districts that it's

always been done that way.

That's the way we're going to do

it. So the new judges come in,

particularly judges that haven't

had extensive trial experience,

and then they go to new judges school,

what we call baby judges school,

and they learn about being a managerial

judge that just flies in the face of

what would jurors want and

what would trial lawyers want?

What's a better way to conduct a trial?

You obviously know how to do it.

Is there any tips that you can give us

as to how we can persuade a judge to

change his or her mind and maybe

not go to your dream level,

but at least get better in this area?

Well, I think one thing that's helpful is,

so in the case where we spent

15 days in jury selection,

I had a lot of input into

the jury questionnaire.

It was not a simple questionnaire.

It had 99 questions,

paired down from about 200

that the lawyers suggest.

And I worked with the lawyers and

we agreed on the 99 questions.

So I think one of the big tips is

if the judges have to do the work,

they're not going to do it because

they think they're overworked.

So if the lawyers can agree and work on

a questionnaire and say to the judge,

"We've agreed on the questionnaire,

we would like the assistance of

the clerk's office to send it out.

" Then there's less work for the judge.

There's not a whole lot of work for

the staff because it's all set out

electronically. And if

the lawyers agree to it,

you'd have to be kind of a real jerk

of a judge not to go along with it,

although I suppose some wouldn't

because they haven't done it that way,

but at least you've eliminated the problem

of the judge having to do any extra

work.

That's obviously a huge issue.

The issue that I run into,

it's going to take too much time. And

I always tell the judge, Your Honor,

the time that we're going to spend upfront

is going to reduce the actual trial

time. So if you want to put me on the

clock, put me in the clock, include this,

and I'll take it out of my trial

presentation. It's just so novel to them.

They just can't seem to follow

that. I mean, anything I can do?

Most judges didn't allow the lawyers to

actually participate in jury selection.

They would have them submit questions.

I partnered with the lawyers at the

pretrial and they knew from my scheduling

and management order that they could

have as much participation as they

wanted as long as it was reasonable.

And sometimes I was horrified.

They wanted me to do it all.

Well, I was glad to do it.

I had a kind of a canned power.

I did all my jury selection and PowerPoint

and I would adjust it for the case,

but they wanted me to

do it. I would say, "No,

it's your case." I allowed

the lawyers to participate.

I'd heard other judges complaining about

they'll ask inappropriate questions.

Never once did I have a lawyer ask what

I thought was an inappropriate question

in jury selection. They just didn't do it.

So sometimes they wanted me to

handle the difficult issues sometimes

against my better judgment.

They wanted to handle it, which was fine.

When I say against my better judgment,

I thought I did a little bit better

job sometimes than the lawyers did,

but sometimes they did a great

job, but it's their case.

So you should tailor the case to

meet the objectives of the lawyers.

And when you have really good lawyers,

they get along really well and you can

give them a lot of slack because they're

not going to abuse it.

I couldn't agree with you more.

And I just wish more that Bench adopted

your view. We get better trials.

We get better results.

Absolutely. We would get

fairer results. Fairer.

Results. That's what I mean by that.

You get actual less biased jurors who

actually weeded out the biases that

always existed. It doesn't matter

what kind of a case, criminal defense,

real estate deals, whatever it is.

You'd weed that stuff out. Incredible.

I get fair results. Wow.

I'm working as a consultant now on

a case in a state on the West Coast,

and the judge is allowing the

lawyers to submit three proposed

questions that he or

she may or may not ask.

I came up with what I thought were

nine really good questions and told the

lawyers on this team, if you

think any of them are helpful,

pick the three that you might want

to submit, but it's like, what?

You're only allowing them

to submit three questions.

This is a really important case,

potential multimillion dollar case,

and you're not allowing the

lawyers to ask questions,

and you're only letting them submit

three questions. Why would you do that?

Because it's always been done that way.

Yeah. Laziness always been done and

a fear that the time's going to ...

They've got all these cases on their

case list and the case they're managing

cases and they're afraid that this is

going to take an inordinate amount of

time. I think that's got

to be part of it. Can.

I just tell you one story about

it's always been done this way?

Please.

Early in my career as a

federal district judge,

I had this lady in the front row. We were

on the first day of the actual trial.

She was elderly and she raised

her hand and she said, "Well, gee,

I don't know what to do. A juror

raised their hand." So I said, "Yes,

ma'am." She said, "Well,

I've got a question for you.

I noticed you're drinking." And

she said, "It's probably water.

Everybody else in the courtroom has

water. We don't have anything to drink.

Why is that? " And I looked

at her and I said, "Well,

you're not going to like my answer

because it's always been done that way.

But you know what? I'm going to

change that. And on the next break,

you can bring in anything you want to

drink as long as it's non-alcoholic." And

within two weeks,

I had cup holders installed in the

jury box so that jurors could bring in

anything they wanted to drink. But

it's always been done that way is not a

satisfying answer to anyone.

It's just not because there's a

better way to do everything. Yeah.

Thomas Edison said there's a better

way to do everything. Go find it.

And I felt as my job as a lawyer

and as a judge was to go find it.

It is not.

Right?

Let's move to the next

topic, opening statements.

Why are most opening

statements dead on arrival?

Well, thank you, Kevin. In my judgment,

most opening statements are

dead on arrival because most

lawyers are not very good storytellers.

And it would make my skin

crawl an opening statement

when a lawyer, let's say they had six

witnesses in the case. So they would say,

"The witness will be Joe Blow from Kokomo

and here's what he's going to say."

And our next witness would

be Jane Doe from Kokomo.

Here's what she's going to

say. It was just piecemeal.

It didn't tell a cohesive story.

So most lawyers do not know how

to tell a story that motivates

jurors to rule in favor of their client,

whatever their respective story is.

They're just not good storytellers.

And that's the primary problem

with opening statements.

I'll give you an example. It

happens to me from a criminal.

Some criminal defense lawyers

watch your podcast. Yeah.

Anybody who does trial, I hope

is listening to it. Go ahead.

So I had a lawyer who did a fair

amount of criminal defense work.

She was a D+ lawyer on a really good day.

She went to a trial college for like a

couple weeks or a month. She came back,

she was trying a criminal case and

she gave the best opening statement,

one of the best I'd ever heard.

It was a cocaine conspiracy case.

The government had the bricks of the

kilos of cocaine on the evidence table.

She picked up a kilo and she told

the opening statement as if the kilo

could talk. And it was,

"Okay, so this kilo,

who did you first meet in

this conspiracy?" And she

went through everybody and

then did you ever meet my client?

Nope, you never met your client.

It was captivating.

And she went from a D+ lawyer on

a good day to a solid A lawyer.

That opening statement was fabulous

because she told the story from a

unique point of view. Point

of view is really important.

She told the point of view

from the drug evidence.

I never would've thought

of that on my own.

It was brilliant as she told the great

story and got her first not guilty

verdict.

Yeah, story. Look,

our brains as humans are hardwired to

listen to stories since we're all gather

around the campfire millennia

ago. We were telling stories,

right? That's how you communicate.

And so our brains are desperate to

hear story and they love to story.

You say, "Let me tell you the story."

And you mean like, oh, a story,

a story time, right?

Exactly. And in my 8Trades article,

I give examples of some

of my favorite TED Talk,

people who are really good storytellers.

And so you can model it

after it's an acquired skill.

One day when my daughter

was maybe six years old,

I took her to a public library to listen

to a professional storyteller and I was

captivated. And at the end

I went up to her. I said,

"Have you ever thought about going to

law school?" And she laughed. She said,

"No." She said, "Well, why would you

say that? " And I explained it to her,

that you do what most lawyers are

unable to do, incapable of doing,

right?

The litany of the evidence. Let's

list the evidence and eyes glaze over.

As jurors start thinking, "Let's

see, who's picking up the kids today?

Where's the laundry?"

Yeah, fantastic tip. Third,

hips for improving direct examination.

I think direct is often viewed as

quote easy, that people overlook it,

they kind of mail it in.

That's my view on direct.

Tell us about how you improve direct exam.

Yeah, I think direct is

actually much harder than cross.

I see a lot of lawyers that are pretty

good at cross, sometimes even very good.

I see very few that are

very good on direct.

So here are the problems with direct.

Most lawyers have their

questions written out.

And if they have 16 questions,

they're going to ask all 16

questions come hell or high water.

They don't even listen to

the answer of the witness.

So a great direct is where you have-.

Excuse me.

Yeah.

Are you suggesting trialers

are supposed to listen?

The greatest trial lawyers

are the best listeners.

Most lawyers are not

good listeners, period.

They don't pick on cues during oral

argument when I'm asking questions.

They don't listen to the witness because

they're so hell bent on asking the next

question. They don't listen to what

the answer to the first question is.

And so yeah, if you want to

write out your questions, fine,

write them out and then put them aside.

Ask a question, listen to the witness.

And then I think you've probably

had other people talk about looping.

You take the witness's answer and

you repeat part of that answer to

form your next question.

It's just like you're having

a conversation with a neighbor

in your backyard over the fence line.

You don't have written out questions.

The best, deepest, most

interesting conversations,

you don't have questions written out.

You listen to the person and

you ask follow-up questions,

right?

So when my wife and I go to parties,

she likes to meet everybody at the

party and have kind of a superficial.

I like to focus on one person and I

will get to know that person so well

because I ask questions, I listen,

I'm not concerned about

me saying anything,

I'm listening and I'm

asking follow-up questions.

And at the end of two hours,

they think I'm one of their best friends

because I've listened to them and

that's what you need to do.

I'll give you another example.

There was a really terrific trial

lawyer. He was very interesting.

He tried both civil and criminal cases

in front of me and we were trying a very

difficult case and he took his

chair from behind council table,

picked it up. He called his client

to do a direct, picked up the chair,

moved it up to the witness box,

sat about a foot from his client,

folded his hands and

started talking and having

conversation.

No notes, just a conversation.

And I felt like we were

all in a living room,

ease dropping on this conversation and

the jurors were in rapture because he

changed the dynamic of the

courtroom to have a very

intimate conversation. It was

dramatic and it was compelling,

but he knew how to do a direct

examination by asking simple

questions. That's another thing.

Most lawyers can't ask simple questions.

Simple questions are the

key to direct examination.

Who, what, when, where, why

basically and talk essentially?

Yes. My very first trial,

I was a magistrate judge first week

on the job and my colleague had

some cases down at the state prison

in Fort Madison, Iowa. And I said,

"I'd love to go down and do them for you.

" So he said, "Great." So I went down,

very first case, he beat me

up on the way to the shower,

case against the guard. So pro se

plaintiff calls the first witness,

"Did you see Joe Bow beat me up

on the way to the shower?" "No,

no further questions.

""Okay." He had six witnesses.

We threw five witnesses in less than

10 minutes. Gets to the sixth witness.

Didn't even ask the witness

his name, just said,

"Did you see Guard Joe Blow beat me

up on the way to the shower?" "Yes.

"Best follow-up question

I've ever seen in a trial.

"What did you see?" Very few

lawyers would ask a question that's

simple.

It was brilliant, simple.

Why is also key?

Why is one of my favorites

during whatever deposition,

because deposition to me is like trial.

"Well, this is blah, blah, blah, blah,

blah. "And they're prepared to

say that. And you say," Why?

"And then you really get the answer.

You really get what they're thinking.

Yes.

100%. It's so critical.

Absolutely.

My goodness, this has gone so fast.

I could do this again. You know what?

I'm going to break my rule of three and

just add one more. I'm going to add,

one of your interests is why

deposing experts as a waste of time

and money. Tell us about

that, Judge Bennett.

When I say I rarely depose

the other side's expert,

I mean rarely.

Now, just to be clear,

this is in federal court where you've got

the report that is supposed to lay out

all the opinions, right? That's

what we're talking about.

Because some state courts, as you

know, don't have that anyways.

We don't have reports,

but you can require the

other side to give all of the

opinions of the expert, even

though there may not be a report,

I think in most states that I'm

familiar with. So here's my point.

You need to pin down what the expert

is going to testify through discovery,

but you don't need to

take their deposition.

The problem with taking the

deposition is most lawyers give

away how they're going to approach

that witness on cross-examination.

That's the last thing you want to ever do.

And so I required experts

to fully disclose.

I would lock them in through

the interrogatories. Now,

I did take an expert witness

one time in New York City,

and I told the other lawyer," I'd like

to take the deposition of this expert.

"He wasn't from New York either.

I said," But only if we do it at

the expert's office. "He said," Why?

"I said," That's just my rule.

"He said," Okay. "We went in,

went into the expert's office, I

introduced myself. I said," Now,

I've read your report. Do you have

anything you want to add to your report?

""No." "Do you understand that if you

decide to add or delete anything from

your report, you have an obligation to

supplement your interrogatory answers,

so I know that. ""Do you

understand that? " "Yes.

""And do you think that's fair to

require you to do that? " "Absolutely.

"I said," Well, it's very

nice to meet you. I'm done.

"It lasted less than seven minutes. Now,

here's what I did during

those seven minutes.

That was back then I was much

younger. I had a good memory.

I memorized the name of every single

treatise he had within arm's reach.

I then went on and bought those treatises.

When it came time to cross-examine

him,

he thought," Who is this goofball that

came all the way to Iowa to New York and

didn't ask me anything about my

opinions? This guy must be a flake.

"So I pull out of my second brief bag,

the books of these treatises and I

go through them and ask them if he

recognizes them as an authoritative

treatise and he would say yes.

And then I said," As a matter of fact,

don't you have these within arm's

length in your office? ""Yes, I do.

" And you have them within arm's length

because they're important to you and you

like to be able to

consult with them quickly.

And I did the bolstering

and the accrediting of him.

And then I proceeded to tear them

apart with things in the treatises

that he had recognized,

but that was one of the very few times

I deposed an expert. I didn't see any

value in it. It cost the

clients a lot of time and money.

I just didn't need to do it.

Now, I would be loaded for bear.

I would read everything the expert wrote.

I would try and find other cases

where the expert had testified to.

Now it's so easy with the

internet and you get access.

I don't understand the reason

to take opposing party's expert.

I just don't get it.

Yeah. You got to save the

good stuff for trial 100%.

I never understood these five hour depths

of the expert to try to filet them.

What do you show your good stuff

for, man? Save it for the jury.

When you don't impose the other side

expert and they're used to having their

deposition, it makes them kind of nervous.

Either they totally underestimate you and

they just think you're a flake or they

think, "What is this guy up to that

he doesn't have to depose me? ".

It totally does. Yep.

Right?

100%.

About either one, right?

100%. He's either a totally

incompetent or a genius,

flew by the half hour.

Any final words to younger trial

attorneys trying to figure out how to get

better in this profession, Judge?

Yeah. You learn more from your

failures than your successes.

It's really good to watch other lawyers,

but it's really important to do a

postmortem after everything you do to try

and think of how you could do better.

I have a mantra that I say

every morning when I wake up,

"What can I do better today that I've

never done before?" And I'm a lifelong

learner. I'm always

trying to prove my craft.

I had a very difficult

mediation on Saturday.

It went better than it probably

should have, great lawyers,

and my postmortem was very short,

but sometimes my postportem

can be pretty long.

Why did I make that mistake?

I've made that mistake before.

Why do I keep making it?

And so don't beat yourself up

too bad if you make a mistake,

but always try and learn from your

mistakes and try and learn from others. If

you have a spare moment and you know

there's some really good lawyers at your

local courthouse trying a case, go watch

them. When I would hire law clerks,

I hired great law clerks,

but I would tell them,

"You're really going to learn more what

not to do than you're going to learn

what to do because we're going

to see a few great lawyers,

but a lot of pretty marginal lawyers,

but it's a great learning

experience either way.".

Incredible. Judge Mark W. Bennett,

it's been a pleasure and an honor

to have you on Verdict Academy.

Thank you for your time, sir.

Thank you so much for having

me. I really enjoyed it, Kevin.

Thank you for listening

to Verdict Academy.

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