• In one case I was the first witness in the case (obviously for the plaintiff) about the negligence of his state court public defender. Before I testified, the parties had agreed that the defense could read the entire trial transcript from the underlying jury trial to the eight-person jury. Boring, boring, boring, especially because an individual copy wasn’t available to each juror. They had to try and remember the trial transcript from memory – an utterly impossible task. It was not an exhibit in the trial. The judge should have given each juror a copy to follow along to help with their comprehension while the transcript was read. The transcripts then could have been collected, or better yet, allow each juror the use of their transcript during the evidence presentation. I and the opposing expert frequently referred to matters in the transcript as did other witnesses.

• After I was sworn in and about 30 minutes into my testimony I was asked about several exhibits. Unfortunately, there was no final pre-trial conference to admit the exhibits and the lawyers were quibbling about them right in front of me and in the presence of the jury. The exhibits were admitted but that should have obviously been done earlier.

• There were no preliminary instructions so the jurors had no idea what they would need to find. I always put the verdict form in every civil and criminal case up on a large screen and told the potential jurors that if they were selected at the end of the case this is what they would be asked to find. The purpose was to see if any of the potential jurors would have unusual difficulty in making the findings.

• One of the judges gave all of us quick stretch breaks about every hour, which I did as a judge, and it was much appreciated by all in the courtroom. The 30-second to a minute stretch break in place adds little to the length of trial and makes absorbing the testimony much easier for the jurors. They were attentive during my full day of direct and cross.

• Neither judge used time limits negotiated with the lawyers at a final pre-trial conference, so the jurors had no idea when the trial evidence was going to end. We were all there voluntarily – the jurors were not. Reasonable time limits negotiated with the lawyers, in addition to many other benefits, are a huge courtesy to jurors.

• Both judges generally treated the jurors with respect, except one was not in the courtroom when the jurors were brought in after breaks. So, the judge was not standing for the jurors when they entered, which I always thought was important as a sign of respect. As a judge, I never wanted to make a grand entrance. One judge was seldom on time so the jurors and counsel usually waited beyond the time the judge told everyone court would resume.

• Both courtrooms had lawyer podiums on wheels but were not set up so witnesses could see both the lawyers asking questions and the jurors - so my head spun like a top.

• Both trials would have benefited from final instructions prior to opening statements, or at least preliminary instructions including the elements of legal malpractice which were not in dispute under Iowa law. Moreover, for the last 20 years of my judging I gave the jurors a final set of instructions before opening statements. In only one out of every fifty or so trials would I have to delete an instruction or give a supplement instruction and they were told at the beginning that might happen. It was never, ever a problem. ² Also, each juror would have benefited from having an individual set of final or preliminary instructions with them during the trial. They also would have benefited from time limits, especially on opening and closing arguments, if not the entire trial; allowing jurors to ask questions of witnesses; judges just saying no to side bars; starting and ending on time for each break and for each trial day; and more creature comforts for jurors. Juror feedback on the trial would help each lawyer and the trial judges improve on their craft. The trial judges had not yet developed a jury-centered approach to jury trials. The central feature of this outlook is WWJW, What Would Jurors Want. While it’s not always possible to give jurors what they want, it usually is!!!!

• One lawyer did a great job of dribbling out my qualifications during my direct to not bore the jurors with the usual lengthy qualifications first, but highlighted them as they related to my opinions.

• Neither lawyer did a good job of “previewing” my testimony. I always encouraged lawyers at the final pre-trial conference to preview their witnesses, especially their experts, by asking very early in the examination why they were being called to testify. It is much easier for jurors to be interested in the expert’s opinion if they know early on why they are being called. Often an expert spends a ton of time on their qualifications and the jurors have little understanding of why they are testifying until they get to their opinions. For example, a preview of my testimony might look like this: “Is it your understanding you have been called to testify today why, in your expert opinion, the defendant lawyer was negligent and committed legal malpractice?” If you think that is too leading (even though it is foundational) you can always ask: “Please tell the jury why you have been called to testify?”