The following is a transcript of Episode 5 of Championing Justice. You can listen to the full episode here, or watch it on YouTube.

Darl: Welcome to the Championing Justice podcast. My name is Darel Champion and I’m honored to have David Darden as our guest today. I refer to him as Judge Darden. He is a retired judge who has senior status. When he was a full-time judge, he was in Cobb State Court. I actually had the privilege of appearing before him. But now he works also as a mediator and will occasionally sit as a judge in various counties around the state. And we’ll talk a little bit about that today. 

So a lot of what we’re going to be discussing is how to present your case effectively in court with some advice from a judge and kind of what Judge Darden’s seen over the years, both pre-trial and in trial itself. And then we’ll also talk some about his mediation practice and how to be effective at mediation. Thanks for joining us.

Judge Darden: Glad to be here.

Darl: So tell us a little bit about your practice before you became a judge.

JD: Okay, so I practiced law in Marietta for about 18 years, general civil practice. Back when that was more possible. And I enjoyed the fact that I got to do a little bit of everything. I did everything from adoptions, to governmental law, to personal injury, representing small companies, that sort of thing. So it was a very general civil practice with more focus on litigation.

Darl: And what year did you become a judge? 

JD: 2003. I think I was sworn in first part of 2003.

Darl: Okay. It’s going on 20 years now. 

JD: That’s right. 

Darl: And was that directly to the Cobb State Court?

JD: It was. It was an open seat. The chief judge, Robert McDuff, retired, which was rare then. Most judges resigned and let the governor appoint, but he retired and left an open seat, so I ran for it.

Darl: You know—helpful advice for anybody who’s practicing law in front of a new judge—do you have any tips for what you remember seeing for example—like you’re going from practicing law to being a judge, you may feel a little bit lost or not really knowing—how should a lawyer approach a new judge like that and any specific tips for that versus maybe a more seasoned judge?

JD: Right, someone who’s appearing in front of a new judge. I think one of the things that I always thought was a good idea was, if you’re in trial with a new judge, take the time ahead of time to do a two-page trial brief on pretty much the hot issues in your trial.

Darl: Okay. Is that something that the attorney should file or just have handy?

JD: Have ready. And when the issue comes up—maybe there’s a directed verdict issue, maybe there’s whatever a cause issue, maybe there’s a particularly troublesome piece of evidence you think there may be some contest about—have a two-page trial brief and just say, “Well, Your Honor,” when it’s your turn to respond or whatever say, “We’ve prepared a trial brief on this matter.” 

Make it readable in two minutes and I think that’s a great way to work with a new judge. Because they want to do the right thing and it’s going to bog down if they have to step off the bench and do the research that you could hand them.

Darl: Sure, yeah. And I think that’s something I’ve experienced, you know, when having a trial before a relatively inexperienced judge, is the kind of paralysis by analysis. I mean, the judges want to get it right.

JD: That’s right.

Darl: And I think they’re, you know, “Which of these attorneys is leading us astray here?”

JD: Right.

Darl: You know, “What’s the,” quote, “right answer?” So that’s very helpful advice.

Now, when you got appointed to the bench—were you appointed or elected?

JD: Elected.

Darl: When you got elected, were you—you started in 2003?

JD: Right. 

Darl: Did you start hearing civil and criminal at the same time? 

JD: Yes, I actually started before I was elected because Judge McDuff was ill. And I just was appointed to sit pro hack for him for two or three months, but yeah, civil and criminal. 

Darl: Over the years, how many civil trials do you think you presided over? 

JD: Oh man,100, maybe. 

Darl: Wow, one of the things, and you know—so I graduated from law school in 2007, I did a clerkship after, started practicing plaintiff’s personal injury law in 2010—so my kind of perspective of things is limited to that period of time. Have you seen anything change in terms of the number of people who have been in law? Of civil cases going to trial, either an increase or a decrease? 

Because, you know, like from my perspective, it seems like for several years there were just a lot of car wreck cases going to trial because we were getting lowballed. And I could never figure out, you know, if that was a relatively new development, or if that’s just the way that it had always been. 

JD: Right. And I’m setting aside the whole COVID backlog thing, but yeah. There was a time when there were some companies that, it appeared, took on the posture of, “We’re going to try them all.” 

And so we saw that. But I would say overall, it just sort of comes and goes. It seems like the cases that I saw that tried were either really big or really small.

Darl: Not a lot in between, yeah.

JD: And some of that I think was just maybe—my theory was—that the ones in the middle were more, to coin the phrase, “settlable” you know. But the smaller ones you know just couldn’t take what they’re offering so to speak, and on the big ones they were too big to just try to settle so let’s see what the jury will do.

Darl: Interesting, yeah. One of the things that I experienced, and still do, is the car wreck case where you take it, you know, obviously, you don’t know right away what the medical bills are going to be and what the injuries are going to be and what the treatment’s going to be, and then, you know, the medical bills end up being, let’s say, $15,000, $20,000, and the adjuster offers less than the medical bills. 

That was a lot of what I was seeing. You know, and that falls in the small category. But even cases where maybe the bills were $50,000 or $60,000, which again is still on the small side, but you’re getting a $30,000 offer… And it’s like, “Wait, what is going on here?” 

You mentioned one company in particular. I think anybody listening probably knows who that company was. I’ve seen a shift: it’s not as much that company anymore as there’s a new—

JD: There is.

Darl: —offender in town who’s essentially taking a hard-line stance. Any insight on what’s going on behind the scenes to cause that to happen? Maybe from your mediation practice? 

JD: Yeah, I don’t know. I don’t know from the judicial side, you know, it was sort of like, “We try whatever they bring in.” And it would be more of just like, “Seems like there’s a lot of cases.” And, of course, when the case comes in we don’t know who the company is. 

Darl: Sure.

JD: But gradually you figure it out by defense counsel, you know. They do that type of work, or they have those carriers, or they’re a captured firm, whatever. But it’s hard to really know. I think it just becomes the strategy, you know, “Let’s try and see if this returns a better value to our shareholders,” or whatever. But we definitely noticed it on the bench.

Darl: Yeah. As a judge being on the bench, is there anything that judges can do to try to encourage settlement among the parties? 

Because I mean, there were certainly times where I went to trial—I had one in DeKalb County where the judge asked us before the trial, “Where are you at as a plaintiff? Where are you at as a defendant?” And we were really far apart. And he didn’t really make any effort of like telling them, you know, “Hey, I’ve seen the facts of this case,” because he kind of knew what was going on and so we ended up trying the case and it ended up being a really good result.

JD: Right. We talk about that in judges conferences a lot and I think it goes to the personal preference of the judge. Personally, I would never do that. I never got involved because I didn’t ever want either side to feel that I had put my thumb on the scale. So I would never—I don’t want to know about offers. I just—if you’re here, you’re good lawyers, I assume you’ve done what you want to do to try to get it resolved. My job is to try it. 

And the other thing is, you know, even clients that you go back to chambers, meet with the lawyers or you talk about that kind of stuff and then you come back out—I just, I don’t want there to be any hint that I have a thumb on the scale. 

Darl: Sure. And that’s a good point. Now, some judges do order mediation. 

JD: Yes. 

Darl: Is that something that you would always order? 

JD: Not always. After a while, I felt like that I sort of got a feel for cases that might do well in mediation: mid-sized car wreck case, sometimes cases in which I could tell they weren’t standard and they had a lot of emotion, you know, “This might be good for mediation,” that sort of thing. 

I did not send many med mal cases to mediation. I just didn’t think—I’ve tried enough of them, great lawyers on both sides, they know the case, the record is clear—you know, the ability to have a medical professional approve of a settlement in mediation extremely difficult. So I just didn’t do it. 

I did not feel that it was good to say, “I have an automatic mediation order.” It adds transactional cost to the case, which sometimes is not necessary. Why put people through that? It adds delay. So I would just sort of pick and choose. 

And, of course, in motions hearings, when the clients are not present, I would offer the attorneys, maybe after the record had closed on our hearing, I’d say, “If one of you wants me to order mediation, I will do it.” In other words, you don’t want your client to know that you volunteered because it makes you look weak or they think it makes you weaker, but if you just tell me, I’ll just order it. And I would not do that with the clients present.

Darl: How many trials a year are you currently presiding over as a senior judge?

JD: Well, I am sitting a lot in Fayette County, do a good bit of work down there. And I am primarily working on the criminal side. And so that’s about the volume, on the criminal side.

Darl: Most of those trials, because they’re misdemeanors and state court?

JD: They are, they’re all misdemeanors.

Darl: One-day trials? 

JD: Mostly one-day trials. So Judge Thompson, for instance, will call in—I mean, he sent me 25 cases on a particular day—and they plead or they work out a negotiated plea or some other type of disposition, and so most of the work I’m doing now is criminal work. So, I don’t know, I’ve probably done 10 or 15 criminal trials. 

Darl: One of the topics I wanted to cover with you because—I think this is something when I talk to other attorneys, it’s always a big issue—is, you know, when we’re dealing with obstructive defense counsel. 

And yeah, it really doesn’t happen in car wreck cases because it’s kind of a limited universe in your routine car wreck case. Now, I’m not talking about a trucking case or one that involves a corporate defendant. 

But like your premises liability cases, for example, or any kind of just other personal injury case that isn’t involving those routine discovery issues you’d see in a car wreck case. It seems like it’s very difficult for us to get full and complete discovery responses the first time. 

JD: Right.

Darl: And then we send a good call faith letter, then we don’t get a response, or they ask for an extension, and then what they send isn’t complete. 

What is the best way to get that in front of the judge? Because the concern that I always have is I don’t want to file a 25-page Motion to Compel with all of my interrogatories cited that they haven’t responded to or objected to.

JD: That’s good because they don’t want to read it. 

Darl: Exactly. And it’s going to sit there for four months and it’s just going to delay the case. What advice do you have for lawyers on how to efficiently get that before the court?

JD: Yeah, I think you’re right: You don’t want to write it, and judges don’t want to read it. And some of what I’ll say here it comes from my experience, and some comes from discussions with other judges. 

We talk about it all the time, across the state court judges. They don’t like discovery disputes, and they want to get them handled quickly and efficiently as well. So I have a couple of suggestions. 

One of the—again from my experience, you know—we would have attorneys call and say, “We’re stuck on a discovery issue, we think it can be resolved quickly and efficiently.” Talk to the staff attorney and say, “Will you ask the judge to schedule us a 15-minute phone call at 8:30? 8:30, before he or she takes the bench? We promise it’ll be 15 minutes. We just need to get off the dime.” And that sounds very attractive to a judge, rather than having to wade through 40 pages and write a big decision and everything and take all the time on that. And then if you do that, whittle it down: “Judge here’s four interrogatories and the key dispute are these things right here and we need to get that resolved.” 

And you know, generally speaking, wasting time being overly passionate? Not a good idea.

Darl: Accusatory, yes. Hyperbole. 

JD: Look, we’re here for a 15-minute phone call, all that stuff I’m not paying attention to. Just tell me what you want. And the other thing is a lot of times I think on some of the discovery disputes—this may not be your experience—but on some of the discovery disputes, it can be a question of reasonableness. 

Like, you know, “We’re asking for records for 10 years and they’re saying no,” or “We’re asking for records,” you know, this type of thing. And it’s not a bright line, it’s discretionary. And I think, in those situations, just suggest to the judge, “Judge, we’ve asked for 10 years, they’ve said no, we think it would be appropriate if, given the dispute, if you said six years, I think that’d be appropriate,” something like that. 

So tell them what you want, tell them the other side is gonna say what they want, and then suggest a resolution. Because a lot of it is kind of squishy. Some of those discovery disputes are, you know, you’re just trying to figure out “How do we get there?” 

On documents, I think, you know, the other thing I would suggest, in a limited manner, if they’re objecting to documents being—let’s say in a really, really big case and they’re objecting to disclosure documents for confidentiality or, you know, proprietary and everything, is in-camera review by a special master. 

It’s expensive, but if it’s a big case, judge likes that: “Judge, we’d be happy to present you an order that appoints a special master for an in-camera review of these documents.” Probably should take about, you know, 15 hours. And, you know, you could appoint a special master just to review these documents and give you a suggestion of what should be done.

Darl: I’ve done that too, yeah, that’s very helpful.

JD: Suggesting quick, efficient resolutions if you can get in front of the judge over a phone call. If you can’t, one other thing is we like a status conference. We really want to get to trial or to get this case settled, but we like a status conference with you at your next motions calendar, and we’ll take about 10 minutes.

Darl: One of the things that I used to do when I started, because this is—you know, in law school, they teach you to be thorough and spot every issue, and I would file those super long Motions to Compel with interrogatory quota, because I think the uniform superior court rules mention that, but you can also just attach it instead—so what I think is a much better practice is for attorneys to make the brief itself as short right possible. And so you know one of the things that I’ll have in a premises case, for example, is I may have six interrogatories about inspection and maintenance, so that could just be one of category.

JD: Right.

Darl: “Documents related to inspection and maintenance. We asked for these and interrogatories, such and such, see attached.” That way the court isn’t overwhelmed because I can imagine, you know, getting a brief that’s 20, 30 pages long and just kind of, you know—

JD: And we get a lot of them.

Darl: Yeah. But if it’s maybe five pages…

JD: Yeah.

Darl: And it’s like, “Hey,” you know, “we’re asking, did anybody else fall in this area?” Like that’s something we’re clearly entitled to. That’s what we want to know.

JD: It’s very efficient. Plain language: “This is what we want, this is why it’s reasonable.” 

Darl: The one thing that I used to always do too, and I’ve moved far away from this practice, is I would always wait until I had all the documents before doing the deposition. And that delays the case and I think plays into the hands of the defense. 

But one of the things that I started doing was, I’m going to send my discovery requests, I’m going to find out who has relevant knowledge, I’m just going to start taking depositions. But part of what I ask in the deposition is about things I could use to lay the foundation for a motion: “Did y ‘all send any emails about this incident?”

“Oh yeah, we sent emails.” And then you’ve got the foundation for it to the court—

JD: To make it reasonable.

Darl: Yeah, to say like, “Well they admitted in their deposition, they did this,” or “They admitted there was a safety committee where they talked about this issue.” 

The one concern that I’ve had is, well, once I get those documents, I may want to re-depose that person. What is the kind of general belief among judges about getting a second deposition when something is produced later that should have been produced before that first deposition?

JD: I wouldn’t have a problem with that under that scenario. If it should have been produced, you didn’t get it, you had to dig it out, and now you’re gonna have to do a second deposition, again, what I would suggest is, “Judge, don’t worry. It’s gonna be on these limited terms. We don’t mind having a boundary on this deposition. We’re not we’re gonna open up everything. We need to talk about these documents they didn’t turn over to us.” 

Darl: I had a federal case pending as a products liability case in Georgia and I had to go to Pennsylvania for depositions. And it involved a particular defect; we had asked for all information related to the defect, and they said, “There’s no documents related to it. None at all.” 

I go and I start the deposition and literally, you know, I’m going through the initial comments and the stipulations and the defense attorney stops me. He goes, “Oh wait a second. I have something for you.” He hands me a stack of documents which included a recall for the specific defect we had claimed existed that they had never—

JD: “Is that important? Should you…?”

Darl: Yeah. Like this is what we’ve been saying all along. And then, you know, some attorneys may say, “Well, I’m just gonna call the deposition off.” I just went ahead and plowed ahead, established there was a lot of other stuff. 

We filed a motion, the federal judge agreed to let us do a second deposition, they had to pay all our costs, too: The attorney’s fees for having to do it, the travel time, pay for the hotel. And so, to me, in that scenario, going forward and just pushing forward full steam ahead has really, you know, in my experience produced a lot more than just sitting around and waiting.

The next thing I wanted to ask you about when we’re talking about difficult opposing counsel is obstructive deposition conduct. And you know, there’s some people who think, “Well, you know, I’m just going to call the court in the deposition.” Another school of thought is to call the deposition off and say, “We’re gonna stop the deposition now, we’re gonna file a motion.” Other people just say, “I’m just gonna go forward, make my record, and then file a motion later.” 

When you’re in that situation as the judge, how do you want it brought to your attention? Do you want them calling you from the deposition?

JD: I personally did not. I mean, it’s out of the blue. I could be on the bench, I could be—

Darl: And you know nothing about the case.

JD: I don’t know anything about the case. And I’m busy with something else, I get an emergency phone call: “They’re in a deposition. They want to talk.” That’s probably not gonna go well. 

First of all, the chances of me making a mistake are a lot higher. So I would always say you know, “Maybe I can talk to them briefly,” but when I did I would always encourage: “Work around it if you can, go forward in the deposition. If it’s absolutely a roadblock, if the dispute means we can’t do anything else, or we’re just not going to question this area, if it means we can’t do anything else, I would say, “Well, it sounds like you’re going to have to suspend.” It’s going to be costly to somebody. You know, “We’ll have a motion, we’ll have a hearing. Bring your wallet,” you know. And try to encourage them to get it worked out. 

And in that case, yeah, I think suspending and resuming is an appropriate solution. And it’s probably the best way to get it right. That’s personal. I did not like the phone calls from the deposition. I was probably not smart enough to know how to handle it. I definitely don’t know the case. I don’t know the history of the discovery. I don’t know what’s going forward.

Darl: Sure. And a lot of times, you know, I think there’s a lot of back heat because everybody’s heated, you know. The plaintiff’s attorney’s heated, defense attorney’s heated, and there’s just a lot of accusations being thrown back and forth. 

JD: Yeah.

Darl: It’s the children bickering, right? And when my children fight, I just get mad at both of them. And tell them to stop it. And they’re like “It was the other person’s fault.” I don’t care. I just don’t want to hear it. 

JD: Yeah. That sounds familiar.

Darl: Yeah, you know, I think the deposition conduct falls in a few areas. I mean, in the one where it’s like, “Hey, we’re not going to let you get into this area,” that one I think should be able to be worked out among the attorneys and say, “Hey, let’s just ask about these other things.” If we need to bring it before the court, everybody can kind of have cooler heads about it. 

JD: Right, more calm about it.

Darl: Right. The one that does get a little difficult is the speaking objections, where they just object to form to everything and then give them the answer in their objection. “Wait, he already testified that blah, blah, blah, blah, blah.” And that’s the one where you’re like, “Well, if I keep going forward, that’s the way it’s gonna be in the deposition.”

But, you know, at the same time, I always think of it from the standpoint of: how is that gonna look to a jury when you play that deposition at trial? And it’s not going to look good for them if the defense attorney is objecting and essentially giving them the answer. 

Let’s talk about trial. Voir dire. I’ve had other guests talk about this topic, and this is one where I sometimes get conflicting advice. 

JD: Oh yeah.

Darl: As a judge who’s sat through a lot of jury selections, what are some tips you can give to attorneys who are going through that process? 

And you can talk about it from the standpoint of how to approach the questioning, the types of questions to ask, how to get your strikes for cause. 

JD: Yeah, so it’s interesting because my perspective on voir dire in terms of tips for lawyers: be tough. Because I had a philosophy about voir dire as a judge. And I was pretty well known for very, very short, voir dire. 

I look at the role of the judge as almost a protector of the jury and the jury pool. So I would tell the lawyers ahead of time, first: bias judgment and pre. You know, “Do they have an interest, are they biased, or do they have a pre-judgment? Those are the three lodestones of what we’re gonna talk about.”

And I understand you want to plant the seed and I understand you want to get a commitment, but that’s not the same thing. And so I want you to know, if I feel like that you’re going too far in that direction, I don’t want to embarrass anybody, I may just ask you to approach and say, “That’s too much.” You know, “You need to go back to the three things we’re talking about.” 

Because one reason I would be proactive about that is, I understand neither council wants to object during opening. I mean, during that those voir dire questions, because they want to do it too. 

Darl: Sure.

JD: You know, it’s sort of like mutually assured destruction. And so I would just say I would be proactive, but not to interrupt or embarrass, but just call them up, you know, so you approach and just say, “I think that goes beyond bias judgment or pre,” you know. “Do you have any kind of pre judgment in the case or interest?”

Darl: What are—and let me ask you about that—what were some questions that you heard lawyers routinely ask where you’re like, just rolling your eyes? Llike, “Gosh, this is so…” like “This question is…” 

I have some in my mind that I can think of and I’ll get your thoughts on them, but you’re just like, “Why are you asking that?”

JD: Well, the one that I guess—and I just happened to think of it this morning when I was thinking about it—but I mean, a lot of them are obvious and way out there. And commitment and all that sort of thing.

But the one that I thought was asked a lot that irritated me a little bit was, “Well, this is a car wreck case” and you go into it and a little bit. “And your sister was in a car wreck. Would that make it difficult to serve as a juror?” 

And they would say, “Well, yeah, I guess.” Here’s the thing: It’s always difficult to serve as a juror. 

Darl: Right. 

JD: And so I would have a lawyer say, “Well, judge, we moved to strike for cause because she said it would be difficult to serve in this case.” 

I’m like, “All 12 of them over there would be—it’s always difficult.” It’s too squishy a question. So I usually would not grant a strike for cause if all they said was, “Sure, it would be difficult.” 

Darl: What would be a better question? “Would that prevent you from being fair based on your…”

JD: Well, I think the fairest way would be, “Given your experience, all of these things that happened to you, the moment we begin trial, do they have a head start? Are they way ahead before you hear anything?”

Darl: Sure.

JD: It’s prejudgment. And if they said, “Yeah, they really would,” that’s better. That’s a clearer question to me than, “Would it be difficult?” Hey, it’s difficult for everybody here. You know, it’s emotional. 

Darl: The question that used to be asked a lot—and this was more in the ’90s when tort reform was a big topic, and I was not practicing law in the ’90s, but I’ve read books and have heard about this from other lawyers—you’d ask about “What radio talk shows are you listening to?” or “Do you listen to Rush Limbaugh or Fox News?” And I always felt like that made it seem like there was something wrong with doing that, and so it would potentially alienate the jurors. Like, “Oh, there’s this lawyer who does this.” 

And the other thing that I think I’ve heard a lot of advice from trial consultants about lately is whatever you thought you could predict 10, 15, 20 years ago from a demographic standpoint and from a political affiliation standpoint, you can’t do it anymore. Because, you know, you’ve got, for example, it used to be that, well, you don’t want a conservative juror on your jury because they may not award them as much money. But the other thought is, well, they may feel like they’re getting screwed by the system or whatever, you know.

JD: Politics is not going to give you anything on the jury. 

Darl: Yeah. 

JD: And the thing I would say about Rush Limbaugh and everything like that is, I didn’t permit those. And the background on the law on that is if you really go back and research it, probably, well, a large section of questions that lawyers might want to ask in voir dire, they fall within the discretion of the trial judge. 

The trial judge is given tremendous discretion on what voir dire questions to allow. And so I used it and I would say, “That has nothing to do with it.” That might be one where I’d say, “Counsel approach.” But generally, it wasn’t necessary because I tried to be fair to the attorneys to tell them that ahead of time, you know? 

I didn’t want to have to call them up or do all that sort of thing. I’d just say, “Look, I use a lot of discretion. I’m gonna get involved because I know neither one of you are gonna object. And my job is to protect the jury.”

The other thing I would say is—and you’re experienced enough to know this—but, “Don’t taint the pool. Do not taint the pool.” That drives judges crazy. From an administrative standpoint, I only have so many jurors. Everybody else in this courthouse wants jurors. And if you taint them, you know… 

So if you ever got to a point, or just before a point where you’re sensing that one of your potential jurors has got a hill he wants to stand on or a soapbox he wants to stand on, back off, approach. Ask the judge, “Judge, I’m a little worried about this line of questioning. If we go too far with juror number six, may I suggest that I just skip that, go around it, and that we have him come back privately? And I just don’t wanna taint the pool.” And I would say that is the third rail for judges.

Darl: Right.

JD: And what happens is I think some lawyers want to really just continue to drill into that, hoping that this juror will be persuasive to the others. And usually it just ends up tainting the pool. 

Darl: Yeah. I mean, I will be the first to admit, I never feel comfortable doing voir dire. I mean, I’ve always felt uncomfortable. 

JD: It’s a great unknown. You don’t know who you’re dealing with. 

Darl: Yeah. This list of people with names that I don’t know. I’ve got to keep track of them. I’ve got my chart here. And I have an associate normally helping me, but it’s just, it’s a lot. And it’s difficult. And the lawyer’s sitting there, everybody’s staring at you.

JD: Yeah. And you’re trying to build rapport.

Darl: Exactly. You’re trying to build rapport. You’re trying not to say something stupid. And it is a very nerve-wracking thing for lawyers. But I appreciate that insight. 

Now let’s talk about opening statements. And for me I’ve always felt like opening statements are the most important part of the trial because it’s the lens that sort of sets the stage and is the lens through which the jurors view all the facts. What tips can you give to lawyers on that? 

JD: Alright. Well I always thought what would be effective is it’s not necessarily chronology, you know: “On June 6th my client was driving to the grocery store,” whatever. Because what happens is the jury—and I’ll come back to this principle when I talk about opening statements and closing arguments—you’ve got to think like a juror. You have to put yourself in their shoes. 

This is not their arena, but they know it’s important. And so they want to do a good job. Most jurors want to do a good job. And they’re attuned and could be cynical, could be skeptical, whatever. So they’re very sharp, they’re very attentive. And we want to use that attentiveness to our advantage. That’s what I think. And so when you start with a dull chronology, you’re turning down the knob, whereas you’d like to keep the knob all the way up on their attentiveness. 

And so I think the best thing to do on an opening is figure out—of course you know the theme of your case—but I would present the theme of the case in a visual way or some way that is going to take advantage of the fact that they’re super attentive and hold their attention. If you have a picture of the injury that you’ve gotten cleared with the opposing counsel and attorney, put it up first.  

Darl: I will tell you, I like showing photographs.

JD: Absolutely. People are visual. I think you think like a juror: “Why am I here? What is this about?” If you start telling a long story—and I’m not counting all those attorneys to do chronology—but I just think it’s be visual. Be visual early in the opening. Be vivid early in the opening. 

And then of course the question is whether to mention damages. You know, and there’s theories both ways about what you want to do. One thing I heard—and this is just a little anecdote—but one thing I heard, and this might have been even in voir dire, it was a medium-sized case, say $50,000 in meds or something like that. And the plaintiff’s lawyer actually said, “Who here has heard about all these runaway verdicts and all that kind of stuff?” and they raise their hand and you know like flags are going up in their minds and he’s, “Don’t worry about it. This isn’t that case. Under no circumstances will I ask for more than $400,000. You’ve heard about caps on damages. I’ll cap it myself. Just relax.”

Darl: That’s good, yeah.

JD: And you could see the jury like, “Oh, okay. I don’t have to worry about what they’re gonna try to get me to do.” And of course he multiplied it a good bit, but they relaxed. And you even could do that in an opening. They’re wary. They’re attentive, but they’re wary. 

And I think if you can just say, “Look, it’s relaxed. You know, he’s gonna tell you the law, we’re gonna tell you the facts. You’re here to do justice and, and this is, this is it.” And then it showed them the picture. “This is what we’re here about.” 

Darl: I had a trial last year. We ultimately got a really good result in the case, but I had photos of my client’s injuries and some other photographs I wanted to show in the opening, including the property damage and the judge was like, “Can’t show that. Can’t show that.” And I assume that’s probably a discretionary thing, right?

JD: It is.

Darl: But I’m like, “They’re coming into evidence anyway.”

JD: Yeah, you’re gonna see it.

Darl: What’s the harm, you know? So it kind of took a lot of the wind out of my sails.

JD: Yeah, that’s tough. I mean, I agree. If it’s coming into evidence and the other side  says, “Yeah, it’s coming in.” I’d show it to them. That’s what—opening is to tell them what the evidence is gonna be.

Darl: Exactly, and that’s what I thought too. 

One of the things I like to do, too, is I like to have in my opening presentation, which I do as a slideshow, a photograph of the witness. “You’re gonna hear from so-and-so,” put a picture. “
This is what they’re gonna say.” And then kind of have a summary there. Show the doctor. “You’re gonna hear from Dr. So-and-so. He went to Harvard Medical School.” 

JD: Basically, you’re trying the case. It’’s an outline.

Darl: Yeah and my goal—and again this isn’t anything I made up, I’ve heard this from other lawyers—is to, I mean, you’ve essentially won the case because then everything is gonna be viewed through that lens if the framework you’ve given them is something that’s more reliable.

JD: You show the defense witnesses?

Darl: I don’t because, you know, a lot of trials I don’t know who they’re gonna call. 

The one thing, you know—and I don’t know if any defense attorneys ever listen to this podcast—but one of the things that I think is just the worst thing a defense attorney can do when they get up there and they just say, “There’s two sides to every story.” You know, whatever. And it’s like, “What are you doing, man?”

JD: They already know that. 

Darl: Give your theory or theme of the case. I mean, I had one trial where the defense attorney got up and he was clearly pandering to the jury. He stands in front of them. He smiles. And then starts giving this biographical information of his defendant who caused a car wreck, which has absolutely nothing to do—”He’s engaged to be married,” and this and that—and the jurors are like, “O my god. This is what’s going on.” 

So opening statement: anything else you want to add that you think would be helpful for lawyers? 

JD: Well, no, I just think, as most people do, you start with the closing and then work your way back to the opening. But I think just be vivid, be visual early. I don’t see any need to build in the opening.

Darl: Sure. Just come out. 

JD: Come out, man. Tell them what this is all about. Where’s the dispute? “Here this is the injury. There’s what the car looks like, and they say that one there fault.” You know. 

Darl: One of the questions that I wanted to cover with you—and maybe you do or don’t have anything to add on this—but direct examination I’ve found can be incredibly boring. And I’ve struggled with that. Cross-examination is exciting. You’re getting the witness to admit to this and deny this, you can impeach them—redirect’s even exciting. You can get back up and point out all the things the defense attorney got wrong in cross. 

You got any advice for direct exam on how to maybe make that a little more engaging? 

JD: Yeah, I think you have to work with the witness, and you’ve really already said that in your opening visual. Whatever you can to make it visual—if they’re talking about whatever, their symptoms, whatever—when they talk about it, put it up on the screen. 

And one of the reasons I think that’s important is one of the things that happens with jurors, which everybody probably notices, is they tend to write down what they see more than they write down what they hear. This is my assessment. And they love lists. And if they see a list, they’ll write it down. 

So I’d say stay visual as much as you can. Is there any way to have a tangible exhibit in the courtroom? 

Darl: Maybe like a walking boot, for example, if they injure their foot. 

JD: Yeah. And don’t overdo that, you know. Wouldn’t overdo it but just say, “Is this the kind of walking boot they had?” 

And then, “Yeah.” 

“Okay, well, I’m gonna put it up on your table.” But just those kinds of things. I think stay visual. Again, I’m not sure I’d do chronology. You know, if you can find a better way to present it that again keeps the knob turned up because the minute a witness takes the oath and sits down is your prime time with the jury. That’s the best time you have with the jury, with this witness. You know, it’s gonna erode from there, particularly on direct. So do the most important first and then go back if you need to.

Darl: Sure. What advice can you give on cross-exam? Things that you’ve seen that are effective or not particularly effective?

JD: Yeah, I think the best thing I think I’ve seen on cross is to be prepared, of course,  but again you want to talk about when the jury is really attentive? It’s when you finish direct and the other side is gonna come up there. Jurors know enough about cross-examination to know, “All right. This is a hot moment.” Take advantage of that. 

So what I always thought was effective is you’ve got your depo, you have your points, you have some ironclad impeachment generally speaking. When the judge turns and says “Cross-examination,” stand up and hit them with that question: “You said in your deposition da da da da da, but on direct you said this.” 

And the thing about “We want to see the deposition,” tear it open, show it to him, you may have to do that, but don’t start with that. 

“You said in your deposition…” Don’t say “Do you remember when we took your deposition?” Just say, “You said in your deposition that you were going 40 miles an hour.” My suggestion is when the judge says, “Cross-examination” stand up but don’t even go to the podium yet and hit them with that question. Hit them with your best question, your most unassailable cross question. 

And some people say, “Oh you know, the witness is going to be so defensive that they are gonna…” They’re defensive anyway. You’re cross-examining. They know what cross is. They’re gonna be defensive. 

You’re never gonna win them over and be sweet to them enough—“Oh, I’m so glad you’re here. You and your lovely family,” and everything. They’re gonna be, “Yeah, yeah, yeah, but you’re about skewer me.” Go ahead and skewer them then. Go ahead and make your first, and then go to the podium and start. 

I just think, again, think like a juror. And the juror—if you got something that you can hit this witness with right off the bat, do it and be ready. Don’t fumble through your notebook. Don’t do anything, you know, don’t go back and look for the folder. They’ve been testifying. You should be ready anyway. I mean the defense lawyer may not even be sitting down yet. Hit him with that question.

Darl: That’s good advice.

JD: So I think that’s good on a cross and, you know, be efficient with that. Oh the other thing I think sometimes works this is—sort of a funny way to say it—if you get a point, if you score points, put it on the board. I did it when I was trying cases. If you score a big point, I mean, for me I would go put it on the whiteboard if they have it. Something that they can see. 

And the defense lawyer’s got to erase it if he wants it to go away. And one way to put points on the board I think is very important is to be a little dramatic about it. You know, let’s say I’m cross-examining a witness and they make a great concession and I’m gonna be talking about it in closing. I stop, look at my watch, it’s three to eleven. I go over to the board, I write “10:57, Tuesday morning, Mr. Smith’s quote.” Write it down right then. I mean you got to be quick or the judge is like, “Let’s go, let’s go,” but you know, it’s an anchor point. 

And you get back to your closing, “You said this happened. 10:57 on Tuesday morning, he said this. It was so important, I wrote it down.” And that’s what I call if you score points, put it on the board. 

Darl: That’s good. I like that.

Tell us your thoughts about closing argument. I mean, I think a lot of lawyers think that, well, that’s the time to win your case. But I think the school of thought now is that’s not the time to win your case. And, you know, I think of I’ve read books like the Clarence Darrow biography, for example, where they would have a multi-day—

JD: Attorney for the Damned

Darl: Multi-day summations. You know, people would come from all around town and watch these dramatic closing arguments. What’s your kind of thought on closing argument and how the lawyers should present that? 

JD: Well, it won’t surprise you when I tell you this: Think like a juror. What do we know about these jurors? They’re not—and this is over generalization—they’re not lawyers. They don’t know the law. They don’t know each other. They want probably to do the right thing, but they don’t know how. They don’t know how. 

If you read a book on surgery, you’re not ready. If somebody says, “Here’s what you do, you cut this, you give them this,” you’re like, “I don’t want to do that.” So there’s a sense of that with jurors. 

I’ve talked to a lot of jurors and they wanted to do a good job. They were worried they didn’t do a good job. “Did we do the right thing?” And so taking that into account when you think like a juror—they don’t know the law, they don’t know each other, and they want to do a good job basically—and they don’t know what to do. 

And what do we do? We send them back into probably a windowless, crowded room and say, ‘Everything depends on you.” That’s intimidating. 

Darl: Sure. 

JD: So I think one thing to do when you think like a juror in the closing argument is tell them what to do. I don’t see lawyers do this near enough. Let’s say you’ve got a med mal case and there’s some documents in the record—probably a joint record and it’s probably bates stamped—that are very important. 

I think you should say in the closing something like, “Ladies and gentlemen,” you know, “da da da da da, I appreciate your service. It’s hard to know what to do. The judge is gonna tell you the law in a few minutes, and I’m gonna discuss that with you. But I’d like to tell you four things that I think you should do,” and it should be on the screen. 

“When you go back to the jury room,” and there’s nothing wrong with this, “and you elect your foreperson, these are the first four things that I think you should do: Number one, go to page 238 in the medical record and look at this sentence,” and put that up on the board.

“The second thing I think you should do is review the testimony of my client when he said this. This is what he said.” Put it on the board. 

“The next thing I think you should do is to look at this bill for medical expenses. And then the fourth thing I think you should do is….” 

Probably keep it at about four. “Those are the first four things I think you should do.” Make it a list because they love lists, make it easily transcribable, you know, don’t make it a five sentence—number one shouldn’t be five sentences. It should be “Page 238 medical record.” Number two: “Review this part of the testimony, review your notes with regard to this testimony…” 

And then I think you go from there. What you’re trying to do is put them at ease. Give them a game plan in the jury room. Because you’re talking about voir dires: ”What do we do?” Same thing in the jury room. They don’t know. They don’t know each other. And they’ve got to work through those dynamics. 

So if you give them something to agree about at the start—that “This is what I think would be reasonable in what you need to look at to get started on your deliberations, are these four things”—one of them could be a charge. You could say, “The judge is going to charge you that pain and suffering is a recognized item of damages. He’s going to say that. He’s going to tell you that. And so, I think for your third point, what you should do is consider pain and suffering in this context.” Make it short. 

So take the things you want them to do, be reasonable about it—that is not the time for a screed—that’s the time to teach. To teach them how to be jurors. And of course, you’re trying to teach them what you think is important to look at. So I think that’s really important.

Darl: What do you think about some effective strategies for asking for pain and suffering damages? You know, the medical bills, the lost wages, jurors have an easy time with that. That’s economic damages.

Where they really struggle is with pain and suffering. They don’t know how to put a dollar figure on this. What are some effective strategies that you’ve seen lawyers use? 

JD: Yeah, well, one of the first effective strategies is to tell them it is difficult. You’ve got to put them at ease because they’re nervous about it and they want to do the right thing and they don’t know what the right thing is. 

So I think you take advantage of that. The first thing you do is say, “I know it’s tough. You’re wishing that we would give you a formula. We just are all doing the best we can. That is in your laps and it is an open issue. We cannot tell you how. You wish there was a formula that everybody agreed on but there isn’t. And so be at ease, understand that.” 

And you know, I think if you can put them at ease about the fact—they’re worried, they’re frustrated. They’re frustrated about “How do we…? What are we doing?” I mean, “How are we gonna do this?” 

And then I think you use some of the standard things. You can say—I never thought the employment thing was very strong. It’s just my personal opinion—

Darl: The wanted ad? Yeah, I’ve struggled with that. I mean, I’ve never done a per diem argument, per se. My kind of go-to has been to put up the jury instruction for pain and suffering. “You’ve got nine categories of pain and suffering,” walk through the evidence on each, and then put a dollar figure on it. And I found that to be effective. 

And then even within those nine categories, you could maybe make a per diem type argument. For example, you could say, “Well, past and future mental anguish, $500,000. That’s for the next 50 years. That’s X number of hours. That’s only this.” I found that’s better than “Give them 25 cents a minute for whatever,” because I just don’t think people think that way. 

JD: No, they don’t.

Darl: And it also just doesn’t seem to fit. But you know somebody came up with that and it’s been around for a while, so maybe it works.

JD: No, you can think about too: what would you pay to undo it? 

Darl: So you know there’s the traditional wanted ad where people put this up and they ask for a dollar amount per hour, whatever. One of the things that—and I can’t remember where I read this because again, we’re all borrowing from other people. There’s not a lot of original thought for a lot of these things—it’s taking an ad and essentially putting everything your plaintiff went through, similar to a wanted ad. 

But it’s not a job, it’s like a human experiment. “We wanna see what the effect of this is on a person. So, what would it cost for somebody to raise their hand and say, you know, ‘I’m willing to go through that experiment,’ right?” 

JD: “You can break my leg.” 

Darl: Yeah. Yeah, and and it’s not asking for a per diem necessarily, you know, $7.50 an hour or whatever. 

I think also what I like to do is give the number and—whether it’s through the pain and suffering categories or something else—and then talk about how, “Well that equals only…” you know. “That’s $7.25. That’s minimum wage for the next 50 years.” Is anybody gonna say that’s too much money? 

JD: Right, not to award it that way but to evaluate it using that. That’s a good point. 

Did you ever use photos of the injury when you’re talking about pain and suffering? 

Darl: 100%. Yeah. I’ve done that; I’ll tell you the other thing that I found to be really effective is I always do medical illustrations when my client’s had any kind of—even if it’s just an injection—because as lawyers, we know what an epidural steroid injection is. We all talk about it. But nobody on the jury knows what one is. They think, “Oh, they just stick this needle in.”

JD: Do you ever bring the needle into court?

Darl: I have not, but that is something that I do plan to do at some point, is to do that. What I do is I have—I either use a 2D or a 3D animation for certain medical procedures. Radio frequency ablations are a great example, you know, they’re sticking a probe in, heating up the nerve and basically, you know, killing it for a period of time.

JD: Yeah, sounds like the Middle Ages.

Darl: Exactly. And you know, I’ve got one where it zooms in and it shows the nerve essentially frying like bacon. And I had a juror tell me one time after the verdict—and we didn’t use a 3D animation in that case, it was just my client had some injections and we showed the needle sticking in their back, how close they were to the spinal cord—and they were like, “I knew your client was really hurt when they were willing to undergo that procedure.”

So it’s some objective evidence of pain and suffering. The other thing that I like to do—and this is, I know there’s conflicting advice on whether to introduce the medical records—but my thought is if you don’t introduce the medical records, you can’t pull the stuff from it that you want to pull. 

And so when you’re asking your client in direct, for example, “Well, you know, on this day you reported you had a panic attack when driving because of the wreck.” And you put it up and you blow it up. I want to use that in closing, right? So I’ll do that. I’ll blow up parts of the medical records in there.

The one thing that I’ve never understood is—and maybe the defense attorneys just can’t help themselves, but—the kind of standard defense attack is, “Your client’s a liar.” And even when they don’t say it, they’re saying it. It’s not like, “Hey look, you know, she was hurt, we agree with it, whatever. You know, we just disagree on the value of the pain and suffering. Here’s what it is. Here’s what we think is a more fair number.” 

It’s always like, “She’s lying, you know, this and…” trying to point out the inconsistencies, and if the jury likes your client and thinks that they’re likable and credible, they’re not going to go with what you’re saying on the defense side. 

JD: Yeah. And that’s what you can use on your second part of the closing. You know, like, “I don’t really want to get too agitated here, but—and he didn’t use the word liar—but to take his argument, there’s no other way to look at it but that she’s come in here, gone through all of this, raised her hand—come into the courtroom, raised her hand under a penalty of perjury—and has told you something that’s not true.” 

Darl: Mmhm. There’s a lawyer named Rick Friedman. He’s a well-known national trial lawyer, and he’s written a book called Polarizing the Case

And that’s kind of his strategy, is he actually takes that and uses it to polarize the jury by saying, “They’re saying my client’s a liar. Let’s, you know, call it for what it is. If she’s a liar, you don’t give her a dime. This isn’t like you give her half of what she’s asking for. If she came into court and raised her hand and lied to y ‘all? Don’t give her anythihng.”

JD: That reminds me of—I did this when I was trying cases—this is one thing I thought of and didn’t steal from another lawyer. I would say, you know—and we sort of can get away with this here in the Bible Belt, but we say—you know, “The phrase that people always say is, ‘Solomon-like wisdom, wise like Solomon.’ And it’s because that’s what Solomon asked God for, was wisdom, God gave him wisdom. Wisest man who ever lived,” whatever, however you want to look at it. 

“And the story that the phrase comes from, of spliting the baby, came from Solomon. And where that came from is that two women came in they said, ‘This baby’s mine,’ the other one said, ‘This baby is mine,’ and one of them wasn’t telling the truth. And and so the phrase came: ‘split the baby.’ And we’re afraid that that’s what you’re going to do, ladies and gentlemen. We’re afraid you’re going to split the baby.” 

“But what Solomon did, he didn’t split the baby. He listened to them, he evaluated their stories, he figured out which one was was lying and he gave the other one everything she asked for.” 

Darl: I like that. 

JD: “He didn’t split the baby. He figured out who was telling the truth and he gave her what she was asking for. And that’s what we’re asking you to do.” 

Darl: That’s interesting. That’ll play well in a lot of counties around here, for sure. 

JD: They’ll know the story. And they’ll know that no, he didn’t split the baby, that’s right. And so that’s not what we should do. The wisest thing to do is not split the baby.

Darl: Right, yeah, I like that a lot. That’s a good strategy. 

JD: It’s stealable.

Darl: Yeah, copyright: Judge Darden. 

Before we wrap up, any parting words of wisdom? For a long-tenured trial judge who’s seen it all, for lawyers? You know, whether it has to do with civility, professionalism, tactics, strategy, anything that’s just, you know, “I really wish lawyers knew this thing?” 

JD: Staff attorneys can get black robe disease, and that’s a difficult thing for attorneys to deal with. And it’s hard to know how to deal with that, where you know you feel like this staff attorney is really running everything. And I think the only thing you can do about that sometimes is to put it in writing and and hope to get it past the gatekeeper to the judge. 

That was my number one rule when I hired staff attorneys. “I don’t have black robe disease, I don’t want you to have black robe disease because I’m gonna get some authority here, and I want you to run everything by me.” Any of those kind of things. 

If an attorney is abusive to the judge’s staff, guarantee the judge will know about it. The judge will know about it. And there’s either a formal or informal list on the judicial administrative specialist’s desk and they don’t forget. They don’t forget. And it doesn’t help—you know, I don’t want to get involved, but if I do—and now you’re all sweet, it doesn’t matter. I know what you did. 

And I’ve had a few cases where I actually called the lawyer up—and it was a criminal case or a civil case—and I’d say, “Defense lawyer, can you approach?” 

And the plaintiff’s—”Do we need to both approach?” 

I’m like, “Nah, you don’t need to approach. We’re off the record.” And just say, “You know, that’s inappropriate. And I know about it. And it doesn’t help your case.”

Darl: I can imagine.

JD: And not that that’s going to change how I rule, but it certainly didn’t help. It doesn’t hurt, but it didn’t help. There was no reason to do it. You know? And tell them to step back.

Darl: Right. 

JD: So I think that, and I think making use of ways to creatively contact the judge for phone conferences. Most of the judges I know are very much in favor of that.

Darl: Yeah, I think that’s something that I like to do. Sometimes it is hard getting past the gatekeeper, where we’ve asked for them and they just keep saying no. And it’s like, “Ah, what are we going to do?” And then you file a motion, and they’re like, “I got too many motions.” 

It’s like, “Well this is kind of a self-inflicted wound. You could avoid most of these motions by doing a 15-minute telephone conference.”

JD: I think you can ask for that and that’s not ex parte. So If you’re in a county like Cobb or Fulton or Gwynette, just go to the judge’s chambers. It’s not ex parte to ask for a phone conference. 

And then this gatekeeper’s over here, and with the judge it’s just, “Hey, I just want to come by and say ‘hey, ’and wondered if we could set up a 10-minute phone call on this case. I think it’d be helpful.”

Darl: Status conference.

JD: Yeah and “We could just resolve a lot of stuff and not have to file motions and clog up your calendar.”

Darl: Excellent. 

Well, thank you for joining us, Judge Darden. 

JD: Sure, I enjoyed it.

Darl: This has been very helpful; I hope it’s been helpful to our listeners. Really appreciate your time and your wisdom, as always. 

I know this will be very helpful to us and, as always, I learned a lot from just participating in it. So thank you. 

JD: Great. Thank you. I’m honored to have been asked. 

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