Published in DRI's For the Defense, March 2015 Issue

It sounds like something from a Law-and-Order episode: a circuit court judge in his mid-50s texts a nearly nude picture of himself to his bailiff. When a reporter asks the judge about the picture, the judge responds, “Hot dog, there’s no shame in my game.”  While this may seem like a story invented for television drama, it was very much a reality for Judge Wade McCree from Wayne County, Michigan. As it turns out, there should have been some shame in Judge McCree’s game because the Michigan Supreme Court and Judicial Tenure Commission agreed to remove him from office in March 2014 for his “poor judgment.”  See The Strange Testimony of Judge Wade McCree, (May 22, 2013), (last visited Nov. 5, 2014); Paul Egan, Wayne County Judge Wade McCree Removed in Wake of Affair, Courtroom Scandal, The Detroit Free Press (March 27, 2014)

This is just one example of the number of unforeseen and unexpected situations that can surprise even the most well-prepared trial lawyer during a trial. In addition to judges and clients, courtroom surprises also come from opposing counsel and other witnesses. This article will address common types of courtroom surprises, as well as several different strategic tools you can use to maintain control of your case.

While it is necessary to understand the evidentiary and procedural remedies available to you, it is equally if not more important to familiarize yourself with the strategic value of employing them. Sometimes the best response is no response and knowing how and when to object (or to refrain from doing so) can be the most powerful tool of all. Accordingly, even though you cannot predict surprise at trial, your overall demeanor and response to those surprises can help control and minimize their impact on the jury.

During a trial, any question and answer could easily go unnoticed by the jury. However, a question that is objected to and potentially argued about, simply draws attention to the issue, places a spotlight on it, and highlights its importance to the jury. Accordingly, even when your objection has merit, you should carefully weigh the benefit of potentially excluding the evidence with the sure cost of bringing it to the jury’s attention.

Unfortunately, these decisions must be made quickly and do not always turn out in your favor. With time and experience, this process becomes second nature. While honing those skills, it is important for all trial attorneys to employ their most powerful tool: their demeanor. Regardless of what happens—whether your client testifies incorrectly or opposing counsel introduces evidence of the felony your client did not disclose—you must always remain stoic.

A good trial lawyer will control their reaction to unforeseen issues and make it impossible for a jury to read them. Juries are curious. Juries are perceptive. Juries will look to you when evidence is introduced to see your reaction. If you gasp or become indignant, the jury will see the evidence is important and understand it is harmful to you and your client. If you remain stoic and unaffected, the jury will likely pick up on your non-verbal cues and be as dismissive of the evidence as you are. These same principles apply to your client, who must also carefully control their behavior during trial.

Trial tactics are an art form. Rooted in the substantive and procedural rules in your jurisdiction, the trial lawyer’s toolkit is vast and evolving. To develop the proper intuition for dealing with surprises, it is first necessary to understand where they can come from, including the judge, opposing counsel, your client, and other witnesses.

Surprises from a Judge

While the examples of judicial misconduct may not always be as egregious as Judge Wade McCree’s, other surprises from the bench are not uncommon. For example, what if your case is assigned to a new judge on the eve of trial, and you learn the judge previously worked in private practice with opposing counsel or has a financial interest in the opposing side’s corporation? In some jurisdictions, these issues may constitute grounds to challenge the judge for cause. In other jurisdictions, these relationships can be common and unavoidable. Although judges have distinct ethical duties to recuse themselves if they cannot be impartial, there are certainly situations where self-enforcement is not effective or sufficient.

So, what can a trial lawyer do to remedy surprises from the bench? Specific remedies and procedures vary among jurisdictions. However, attorneys generally have a few tools to respond with, including peremptory and for cause challenges, requests for a mistrial, motions to set aside the judgment, and motions for new trial.

A peremptory challenge is perhaps the simplest remedial measure. Such challenges can be made based merely on a good faith belief the judge is prejudiced against the attorney or his client. This measure is not typically available in federal courts but is provided for by statute in a number of state jurisdictions. For example, in California, each party is entitled to one peremptory challenge. Cal. Civ. Proc. § 170.6. If this remedy is available at the time of trial and the judge appears to have a type of bias or prejudice against one party, a peremptory challenge would be a quick solution.

Of course, most surprises are not so straightforward or easily cured. In situations where peremptory challenges are not available or where there is a more contentious issue involved, an attorney can challenge the judge for cause. See e.g., Cal. Civ. Proc. §§ 170.1–170.5. Again, the procedural and evidentiary requirements for substantiating for cause challenge vary among state and federal courts. Nevertheless, for cause challenge is typically appropriate when there is sufficient evidence of any of the following: prior relationships to the parties or attorneys, personal knowledge of disputed facts in the case, significant financial interests, physical impairment, bias, and prejudice.

In instances where there is evidence of judicial misconduct, a party may request a mistrial. Like attorneys, the judiciary is guided by ethical codes, which generally require them to adhere to certain professional conduct. For example, under the California Code of Judicial Ethics, Canon 3B (4), a trial judge is required to be “patient, dignified, and courteous to litigants, jurors, witnesses, lawyers, and others,” whom he or she deals with in “an official capacity.” Failure to meet these standards constitutes judicial misconduct.

That said, because concerns of judicial efficiency and resources are weighed against issues dealing with impartiality and misconduct, isolated incidents are often not sufficient to warrant a mistrial without other evidence the misconduct resulted in irreparable prejudice. For example, a judge laughing during plaintiff’s closing argument may not warrant a mistrial,

Even though you cannot predict surprise at trial, your overall demeanor and response to those surprises can help control and minimize their impact on the jury.

but a judge standing up, walking out of the court room during that argument, and essentially ending the attorney’s presentation of evidence might. Marriage of Carlson (2008) 163 Cal. App. 4th 281, 294.  If, however, misconduct is prejudicial and not appropriately remedied during trial, then the attorney can still move for a new trial at the conclusion of the case.

Certainly, any trial lawyer should deal with surprises from the bench with the utmost care and discretion. Although issues might arise during trial, the remedial measures outlined are not always readily granted. If requested and denied, the trial lawyer risks disfavor with the judge, ostracizing his or her client from the judge or jury, and ultimately negatively impacting the outcome of the case.

Surprises from a Client

Trial lawyers see it all: from the client with bad breath and wrinkled clothes to the client who suddenly “remembers” key facts on the stand, to the client who acts out when evidence is introduced against him—there are no limits to the surprises our own clients present. Unfortunately, they are sometimes the surprises you least expect. After all, you have likely spent months or years with that client, worked with them on the case, and specifically prepared them for their day in court. Nevertheless, trial is a unique experience for your client. It is not their job to try cases, and they certainly do not have the same experience as you. They are individuals with their own agendas, mindsets, and perspectives. Because surprises from clients can occur just when you least expect, it is particularly important to be prepared to address them before and during trial.

Just as you can send non-verbal cues to the jury, so can your client.

In advance of trial, remember to inform your client about the importance of controlling their behavior in court. Educate them on the value of remaining stoic. Just as you can send non-verbal cues to the jury, so can your client. Even when extremely harmful evidence is introduced, remind them they should not react. They cannot make a face, whisper to you, or, worse, shout out at the witness or attorney speaking. Again, doing so only highlights the harmful evidence and does their case a grave disservice.

Once trial commences, a client’s nerves and anxiety can manifest in several different ways. If the client is testifying and happens to forget information, there are a several avenues to rehabilitate their testimony and help them remember without improperly coaching or telling them what to say. To begin, you can help calm your client down by switching to simple or routine parts of the examination, such as their education or employment background. If their nervousness persists and they still cannot recall their testimony, you can ask them about their nervousness. Sometimes, simply admitting they are nervous can help relax your client and even help the jury relate to them.

If putting the client at ease does not do the trick, then you can use a leading question or two to help remind them about their expected testimony. This should be done with care and only with relatively straightforward matters since using leading questions with your client is permitted only within the discretion of the court. Alternatively, as with all witnesses, you can try to refresh your client’s memory using a writing or demonstrative aid. Should these techniques still fail to help your client recall their testimony, you can ask the judge for a recess to allow your client time to calm their nerves and prepare to testify.

Surprises from Opposing Counsel

Misconduct from opposing counsel is another type of surprise that can come up during trial. Attorney misconduct can include improper opening statements, direct examination, and cross-examination. Additional examples are improper voir dire questions, improper argument on objections, bringing inadmissible evidence before jurors, improper closing argument, willfully concealing evidence, improper communication with jurors, and improper eavesdropping on confidential attorney-client communications.

What are your available remedies when opposing counsel presents you with one of these surprises? Again, a thorough understanding of the relevant substantive and procedural authority will provide the basis for any type of response. As a preliminary matter, you can try to preempt those surprises through motions in limine. Indeed, to the extent you can accurately anticipate what the other side will try, a motion in limine can be an effective tool to forestall surprises at trial. That said, it is impossible to anticipate every type of issue which can arise. Some judges are also reluctant to grant pretrial motions as they prefer to defer the ruling until trial.

Accordingly, once trial begins, you need to pay careful attention to your opponent’s case and trial techniques. Be familiar with the evidence, prior evidentiary rulings, and be prepared to make appropriate objections. In addition to motions in limine, you can object to specific questions or tactics and you can request the court admonish the jury and instruct them to disregard specific statements. However, because you cannot “unring the bell,” other remedies are often preferred. This may include requesting to be heard outside the presence of the jury, requesting a sidebar, or asking the court to take an early break.

For more egregious or prejudicial offenses, you may want to request a mistrial. However, doing so is not always the preferred remedy, even if warranted. You need to consider your jury and the overall status of the case. For instance, do you believe your jury understands the issues and merits of the case, and in turn would be able to see through the prejudice? If so, you may not want to risk trying the case again before a different jury panel.

Additionally, the manner and timing by which you request a mistrial is almost as important as the request itself. Standing up and demanding a mistrial in the middle of opening arguments is certainly not effective or prudent. You would also be ill-advised to ever mention the request in the presence of a jury. The prepared, experienced trial lawyer may make an appropriate objection at the time of the offense but raise the issue of a mistrial in more detail later. Time permitting, you should request the court take a break so you can call your office and have the issue briefed. Only then, once the court has had an opportunity to review the relevant authority, should you argue the issue. If you truly feel compelled to request a mistrial in the presence of the jury, it would be prudent to be familiar with the relevant rules of evidence. Stating, “Your Honor, I would like to make a request under Evidence Code section 703” is meaningless to a jury, whereas “Your Honor, I demand a mistrial,” tells the jury you think your case is in trouble. In the event your request is denied, you have limited its impact on the jury by simply stating the code section.

As another word of caution, it is prudent to refrain from making too many objections or taking issue with misconduct which is otherwise inconsequential. Indeed, not all misconduct is prejudicial or sufficient to warrant the above remedies. As one California court highlighted in Continental Dairy Equipment Company v. Lawrence, improper and gratuitous objections like, “Your honor, I have been very patient,” or, “I object Your Honor. I have allowed counsel wide latitude, but…” might constitute misconduct, but are not sufficiently serious to warrant sanctions or mistrials. Continental Dairy Equipment Company v. Lawrence (1971) 17 Cal.App.3d 378, 891.

Accordingly, unless you feel the misconduct will prejudice your client or your client’s case, you should carefully evaluate whether you want to object and request remedial measures. Doing so unnecessarily may simply highlight the misconduct or ostracize you and your client from the jury or judge. Moreover, if opposing counsel’s misconduct is particularly blatant like it was in Lawrence, then opposing counsel may ostracize him or herself in the process, obviating your need to object.

Surprises from Others

Finally, surprises at trial can also come from the jury and other witnesses. These types of surprises can come in a few different forms. Imagine the reactions in the courtroom when, during jury selection, one prospective juror starts clutching his chest, heaving, and breathing heavily. Stacey Sager, Judge Keeps Man Having Heart Attack in Jury, WABC-TV Channel 7 Eyewitness News (Feb. 27, 2014), archived at What was perhaps even more surprising than the unexpected heart attack in a New York courtroom was the judge’s reaction: “There’s [sic] a few minutes left. They [sic] can wait,” said Justice Joel Blumenfeld when a court officer informed him what was happening. Christina Carrega-Woodby and Erin Calabrese, Judge Says Juror Having Heart Attack ‘Can Wait’: Witness, New York Post (Feb. 27, 2014), Luckily, the court officer determined 39-year-old Nyima Dorjee’s emergency could not wait for the attorney to complete his questioning, and he removed Mr. Dorjee from the jury pool and called an ambulance. Id.

Jury surprises are not always so serious. Take, for example, a juror who fell asleep during trial, and the Ohio judge who declared a mistrial after an observer brought it to his attention. Mistrial Declared After Juror Is Seen Sleeping, Los Angeles Times (April 17, 2003). In explaining why he did so, Judge Robert Ruehlman simply informed the defendant, “You have a right to 12 jurors who are awake.” Id.

Moreover, in an era obsessed with Google and social media, it is foreseeable and likely some jurors will take matters into their own hands and conduct research outside of the trial. For instance, a jury foreman in a Michigan trial decided his time would be better spent updating his Facebook friends about the case. Christina Hall, Jurors’ Facebook Posts Could Lead to New Trial in Macomb Co. Murder Case, The Detroit Free Press (Jun. 9, 2014), (last visited Nov. 6, 2014). “‘This is interesting and also boring—at Macomb County Circuit Court,’” Harvey Labadie posted to his account. Id.

So, what can the trial lawyer do when faced with surprises from the jury or other witnesses? Because a trial by jury is one of the most fundamental rights afforded to defendants, it is not surprising the remedies for juror misconduct are quite sweeping. If misconduct is discovered before a verdict is rendered, you can move to admonish or replace the juror, or move for a mistrial. If it is discovered after the verdict, the remedial measure is simply to move for a new trial or appeal the verdict. Again, the trial lawyer should employ these remedies with caution and only when doing so will materially impact their case.

Responding to surprises from other witnesses, including percipient and expert witnesses, is not as cut and dry. Oftentimes, even the most straightforward witness examinations can become muddled if a witness changes his or her story or comes up with completely new information. It is then that trial preparation and a thorough understanding of the evidentiary rules will be most useful. By carefully reviewing pertinent exhibits and deposition testimony, the trial lawyer can easily respond to such surprises with traditional impeachment techniques.

Similarly, if your otherwise beneficial witness becomes adverse, you can follow up during redirect or cross examination with questions evaluating their credibility. For instance, if your witness suddenly has a selective memory and recalls only that your client was at the scene of the incident, then you can flesh out their recollection to evaluate what else they do or do not “remember.”

Again, a thorough knowledge of your rules of evidence is key here, as you can limit the impact of your interjection by simply citing a code section. Stating, “Your Honor, I would like to question the witness under Evidence Code section 776,” is much more obscure than stating, “Your Honor, I would like to question the witness as an adverse witness.” If the witness then becomes evasive or refuses to answer your specific questions, you can object and move to admonish the witness or strike the testimony as non-responsive.

The prepared, experienced trial lawyer may make an appropriate objection at the time of the offense but raise the issue of a mistrial in more detail later.

Other times, surprises from your witnesses will not necessarily be malicious or intentional. You could very well be faced with a witness who has forgotten facts or issues to which they previously testified. In those instances, you can simply refresh their memory with exhibits or writings and attempt to rehabilitate their testimony. Accordingly, as with all other remedial measures discussed in this article, responding to surprises from the jury or other witnesses should be handled with care.


In preparing for trial, it is imperative to have a thorough, working understanding of both substantive and procedural law. It not only enables you to tune in to when an objection is necessary, but also helps you quickly evaluate whether an objection is worth it, or whether it would be prudent to let it go. Trial skills are an art form. There is no single “right” method to trying a case. By remembering the basic tools available to you and properly evaluating the potential costs and benefits of utilizing them, you can try your case more effectively, maintain better control over the issues, and hopefully attain a favorable result for your client.

Clark R. Hudson is a shareholder at Neil Dymott Hudson in San Diego, California. Mr. Hudson specializes in civil litigation with emphasis in medical malpractice, professional liability, product liability and personal injury. He may be reached at (619) 238-1712.