July 22, 2019 Substantive Law

What Judges Want

By Hon. Mark A. Drummond

Reprinted with permission from Litigation, Spring 2019 (45:3) at 17-20. ©2019 by the American Bar Association. All rights reserved. This information or any or portion thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.

I want you to know that as a trial lawyer I violated most of the following rules—sometimes several of them in the same trial. But after trying cases for 20 years, and being a trial judge for six, I can reduce what judges want to a Top 10 list.

1. We Want the Exhibit

Since judges are individuals, each has idiosyncrasies. Some judges have so many idiosyncrasies they feel it necessary to have written rules for the lawyers to follow in their courtrooms. Although the lawyers in my court may tell you something different, I believe I have only one idiosyncrasy: I want the exhibit. I want you to let me see the exhibit at the same time the lawyer is questioning the witness about it.

I applaud attorneys who are trying to save our natural resources, but nothing frustrates me more than what I call the “one-exhibit trial.” What usually happens is that the lawyer has only one exhibit and gives it to the witness. A direct examination is then conducted over the right shoulder of the witness while the other lawyer stands over the left shoulder to see what they are talking about. The following is an actual exchange that occurred in my court:

Lawyer 1: Would you read that line of the contract for the court?

(Witness reads)

Lawyer 2: Objection, Your Honor, rule of completeness.

Me: May I see the exhibit?

Lawyer 1: No.

Me: Why?

Lawyer 1: I have not introduced it into evidence.

Me (slightly exasperated): Yes, but I’m the one who admits it into evidence.

Lawyer 1: Oh.

Did I mention this was a bench trial?

I don’t know how many times a lawyer has examined a witness concerning a multipart contract, a tax return, or a line-item budget without my having the benefit of a copy. Even if the judge had been a stenographic court reporter in a former life, it simply is much easier to follow along with the exhibit in front of you. If you give the judge a courtesy copy, you are more likely to get the correct result for your client in the shortest period of time. Many of my fellow judges and I keep various colored highlighters and sticky notes on our benches to mark the courtesy copy of the exhibit. For example, I may highlight income in green and deductions in yellow on a tax return. I write the questions I want to ask next to the relevant part of the exhibit. Nothing is more frustrating for a judge than not being able to see what everybody else sees in the courtroom.

2. We Want the Law

What is the shortest distance between leaving the doors of your law school and winning the respect of judges? It’s knowing to follow Model Rule of Professional Conduct 3.3(a)(2), which reads, “A lawyer shall not knowingly fail to disclose to the tribunal authority in the controlling jurisdiction known to the lawyer to be directly adverse to the position of the client and not disclosed by opposing counsel.”

In fact, I tell new attorneys to take the words “directly adverse” and change them to “arguably adverse.” Why? There is nothing more impressive than the advocate who comes into court and says, for example, “Your Honor, this is our position. However, there are three cases that are arguably against us. We have cited those to you, but we believe two of those cases are distinguishable on their facts and one is just bad law. We also have two cases in our favor.”

Judges learn very quickly on whom they can rely to tell them the current state of the law. Citing contrary authority builds your reputation as an ethical advocate. For judges who may be dealing with hundreds of files covering many legal issues, nothing is more powerful than being known as the advocate a judge can always count on for accurate statements as to the law.

There also is a persuasive power to citing contrary authority: It appears that you are less concerned about it when you admit its existence—and it is even more devastating for the other side when you cite cases that are against you that they have not found. No less an advocate than Cicero said that the perfect advocate is one who could argue both sides of any case.

3. We Want Objections That Matter

Judges become frustrated with what I will call “sport objections”—those made merely for the sport of it. Recently, we were at the end of a trial that had to be continued. One of the parties had not shown up in court, and I asked the representative of an agency to explain the efforts that had been made to notify this party. The representative started to tell me that the party that was in court had told the representative that she had called the other party to advise him of the date. There was a hearsay objection. Now, the fact that this attorney’s client had tried to notify the absent party of the hearing date didn’t make a hill of beans’ worth of difference to his client’s case. Moreover, the fact that she took the time and effort to try to call the other party put her in a better light. The opportunity to object does not translate into actually objecting.

Every so often an objection actually hurts your case. In this case the lawyer who objected wanted the party to be making more money. The following exchange occurred:

Lawyer 1: Now, do you have any chance to move up in the organization [from his vocal intonation, he assumes the answer will be no]?

Witness: Yes, they told me—

Lawyer 2: Objection—hearsay.

Me: I would sustain that objection, but the bigger question is why would you object since she started with yes?

Lawyer 2: Objection withdrawn.

Witness: Yes, they told me I would be in line for the manager’s job, which ranges from $40,000 to $60,000 per year [a factor two to three times what she earned].

These are knee-jerk objections. Any time these lawyers hear the word “said,” they make a hearsay objection without asking themselves, will this hurt me, will this help me? or does this matter?.

4. We Want Good Jury Instructions

Lawyers work more hours than judges. Any judge who disagrees is either a rare exception or did not work many hours as an attorney. Therefore, I always try to accommodate the attorneys’ schedules and try to save attorneys time. However, there is one group of people whose time I value more than the attorneys’: jurors.

Nothing frustrates a judge more than having jurors twiddle their thumbs while we try to craft a usable set of jury instructions. Ninety percent of the jury instructions should be completed before trial and given to the judge. Alternate instructions based upon how the evidence may shake out should be typed and ready to go for the instruction conference. If you don’t do many jury trials, ask someone who does, such as a state’s attorney, how to do this. They’ll know what I mean.

5. We Want You to Know Us

Most people know the Greek maxim “Know thyself.” Experienced trial attorneys will tell you to “know thy judge.” As I said before, I would like to think that I have only the one-exhibit trial peeve, but I know many judges have more than one. (I know, you’re shocked.) How do you ethically find out about the judge’s preferences? Here are some suggestions: Call the judge. I have no problem with an out-of-town attorney calling me to ask about procedure in my courtroom.

Call the judge’s clerk. Some lawyers are uncomfortable contacting the judge directly or know that a particular judge does not want to talk to any attorney without the other attorneys being present, even on matters of procedure. Many judges’ clerks or secretaries know the procedure.

Ask for the written rules. Many judges have a list of the procedures they like in their courtrooms.

Call another attorney who has tried a case in front of that judge. Start the conversation with, “Hey, I heard you got a good result in the Smith case.” After the attorney talks for about 15 minutes, say, “Tell me about Judge Jones.”

6. We Want to Be Affirmed on Appeal

For the most part, our biggest fear is having a jury trial overturned and having to do it all over again. In a perfect world, every judge would have a law professor’s encyclopedic knowledge on the particular area of the law. Some judges do become specialists and have the luxury of knowing everything there is to know about a certain narrow area of the law. However, most of us rotate assignments, and, especially in rural counties, the jury trials may be few and far between. I remember when I was in practice, a judge thanked me for taking a civil case to jury trial. He had been a judge for eight years in that county and had never heard one civil jury trial.

If you are taking a jury case to trial, you probably have lived with that case for up to a year or longer. Probably the only person in the courtroom who knows as much about the case as you do is opposing counsel. We judges sometimes do not track why a particular piece of evidence is relevant, and we need time either to digest your argument or to have some law on the point. What do you do? Make liberal use of offers of proof, and don’t be afraid to ask the judge to reconsider a prior ruling during a break in the jury trial. An offer of proof made outside the presence of the jury preserves the issue for appeal. It also gives the judge more time to think about it without the pressure of 24 staring eyes expecting a split-second decision. I may need time to do some quick research on the law or a particular evidentiary point during the break. Don’t assume that objection sustained is the end of it. I don’t want to have to do this again, and if I can trust you on issues of law or evidence, I will always give you a second chance.

7. We Want Civility

I once told a young attorney during a trial training course, “You can’t treat witnesses as if they were born on this earth for the sole purpose of messing with your case.” Some attorneys just can’t help themselves and really emphasize the word “cross” in cross-examination. On a couple of occasions when I was practicing, I lost clients to attorneys whom the clients thought were more “aggressive.” I know that aggressive attorneys may give clients a certain dose of psychic gratification, especially in divorce cases, by the use of confrontational tactics. But as a judge and from juror feedback questionnaires, I can tell you that the people who decide the cases do not appreciate posturing or, put another way, “the show” put on for the client.

The question the attorney must ask is whether aggression is persuasive. To illustrate: The attorney wants to show that the witness (plaintiff) did not seek medical treatment after the accident. The aggressive attorney would do something like this:

Attorney: After the accident, you didn’t ask for an ambulance?

Witness: Well, I didn’t feel hurt at that time.

Attorney (in a loud voice dripping with sarcasm): Ms. Smith, I didn’t ask you how you felt. I asked whether you asked for an ambulance, yes or no? Now, can you answer that?

 

In contrast, another lawyer might simply repeat the question slowly and softly until getting the answer he or she wants:

 

Attorney: You didn’t ask for an ambulance?

Witnesses: Well, I didn’t feel hurt at that time.

Attorney (softer): You didn’t ask for an ambulance?

Witness: Well, like I said, I didn’t feel hurt at the time.

Attorney (even softer and slower): You didn’t ask for an ambulance?

Witness: No.

By listening to the lawyer repeat the simple question and knowing that the lawyer is entitled to a yes or no answer, the jurors are soon siding with the attorney—looking at the witness and screaming in their minds, Oh, just answer the question! The longer it takes the witness to answer this simple question, the better it is for the attorney. The non-aggressive technique of repetition emphasizes to the jury how the witness is avoiding the question. Attorneys must realize that naked aggression, for the most part, is solely for their own gratification or that of their client. It rarely persuades the people who count.

8. We Want a Trial Notebook

I already have talked about having the exhibit in front of me. If you really want to impress a judge, make a trial notebook. In fact, make four of them: one for you and one for opposing counsel, the witness, and the judge. The original exhibits go in the witness’s trial notebook.

Once the exhibit is admitted in a jury trial, it is shown to the jurors, either by their being instructed to turn to the exhibit in their own notebooks (in a document-heavy case) or by the exhibit’s being projected on a screen. The jurors need to follow along with the witness’s testimony. A judge’s frustration at not seeing the exhibit does not even approach a juror’s frustration at not being able to follow along. Believe me, they’ve told me.

At the front of the trial notebook, insert various items that will be useful to the judge. Many of my trial notebooks included the following: a chronology of the case; a list of witnesses, including their titles, if applicable; a request to admit facts and the response to that request; cites to the applicable statutory or case law; proposed judgment (on paper and disk).

My notebooks included my opponent’s exhibits. Many times my opponents would tell me that we could just use my trial notebook since it had all the exhibits. That allowed me to put the exhibits in the order that I wanted the judge to see them. I am not sure this is any great tactical advantage, but when you take a case to trial that, by definition, should be a close call, you should seek any advantage.

The trial notebook system eliminates the exhibit dance in the courtroom. It eliminates the attorney’s having to ask permission to approach the witness, state for the record that she is now showing the exhibit to opposing counsel, and going back to her chair. The process becomes, simply, “Would you please turn to Exhibit 24,” and everyone turns the page. It is so elegant. It is so surgical. It is so persuasive.

9. We Want the Judgment

You might want to ask the judge, with opposing counsel present, whether or not she would like the judgment you proposed on a computer disk so she can alter it as she sees fit. I heard of one judge who took this to the extreme: He would have both attorneys prepare a judgment, and he would sign whichever one he agreed with—no additions, no corrections, no deletions—or so legend has it.

There certainly is nothing improper in saying to the judge at the end of your closing argument, “Your Honor, this is our position in the case, and for your convenience I have drafted an order citing the underlying law that we believe is applicable, certain findings of fact, and a judgment based upon our argument. It is on this computer disk, and I also will give a copy to counsel.” If a judge practices in a particular area for any length of time, she probably already has a skeleton form on her computer that she uses all the time. However, if you are in front of a judge who deals with many cases or is on special assignment, providing a copy of a proposed judgment on a disk that the judge can edit is a real help.

10. We Want to Talk about the Cases

The problem is we can’t. In some of the counties in our circuit, there is only one judge. It must be lonely. I have the benefit of being able to talk to six other judges in my courthouse. We would really love to be able to talk to the attorneys about the cases, but it becomes a slippery slope. We could possibly talk to the attorneys after appeals have been exhausted, yet we are still concerned about post-judgment matters. Most of us loved being trial attorneys, and not being able to talk to attorneys about particular cases, witnesses, or strategies is the biggest loss for us in taking the bench.

So, after we retire, regale us with stories. Until then, we former trial lawyers must live vicariously.

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Hon. Mark A. Drummond

The author is a judge on the Eighth Circuit Court of the State of Illinois.