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Litigation News | 2022

Convincing the Skeptical Judge: Think Different

Mark Drummond


  • In the post-pandemic era, it's important for lawyers to adopt new approaches to save time and improve effectiveness in court proceedings.
  • Consider changing judges if faced with a skeptical judge who may not be receptive to your case. Informing the client about the option of filing a motion for a change of judge is essential.
  • Capturing the judge's attention and differentiating your arguments can be achieved by avoiding unnecessary repetition and getting to the point quickly.
Convincing the Skeptical Judge: Think Different
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“The most effective way to do it, is to do it.” —Amelia Earhart
“The most precious resource we have is time.” —Steve Jobs

What connects Amelia Earhart and Steve Jobs? How does this connection apply to the practice of law? On August 8, 1997, Steve Jobs introduced Apple’s new slogan, “Think different.” Apple’s campaign combined the slogan with pictures of people such as Albert Einstein, Bob Dylan, and Amelia Earhart. Years later, I think Nike just shortened Ms. Earhart’s advice to “Just do it.”

Given the post-pandemic landscape, it is time to “think different” about both time and just doing it. Courts around the country have overwhelming backlogs. Try new approaches that save time and may be more effective. If there were ever a time to throw away the mantra “But we have always done it that way!,” this is the time.

In the first part of this series, I will address creative ways to convince a skeptical judge.

Change Judges

When faced with a skeptical judge, you must ask whether you are wasting your time, the judge’s time, and your client’s time and money in trying that case before that judge. You have an ethical obligation to inform the client of your concerns and the options available, including filing a motion for change of judge.

When I started practicing, I rarely considered this option because I didn’t want to make the judge “mad.” After 20 years on the bench, I realize how wrong I was.

I will admit that when I received my first change of judge motion, I did wonder why they wanted to get rid of me. Did I know any of the parties? Did they think I was biased? Soon, however, I stopped speculating. I wanted out of any case where there might be a hint of bias on my part. In addition, I did not mind having one less case to decide.

A change of judge can benefit attorneys and their clients as well. There is a value to attorneys being able to predict, and tell their clients, what a judge is likely to rule given a certain set of facts. A good judge will respect that.

For example, in divorce cases, I usually allocated the tax deductions for children in a certain manner. However, I made it clear to the attorneys that I would consider arguments asking me to deviate from my usual practice. I did not reject agreed settlements that varied the allocation unless the settlement was clearly unconscionable. And I honored requests for a change of judge.

In the right case, just do it. It will save you time fighting an uphill battle, time arguing a motion to reconsider, and time arguing an appeal. Think different. You may not be making the judge mad. You may be doing the judge—and your client—a favor.

Primacy: Just Say It

Let’s say you do not want a new judge. How do you approach a judge who might be skeptical? Do not hide the ball. Come right out and tell the judge what you want, why you want it, and why the judge should deviate from typical practice.

We sit up and listen to counsel who begin with “Your honor, we know this court has a long-standing practice of allocating deductions. We are asking for a change. We know the court will listen and consider our position. This case is different for these reasons . . .” We admire frankness. Don’t bury this in the middle of your opening statement.

Do the same in your written work. I cannot count the number of times that a motion for summary judgment crossed my desk that began with “This is a motion for summary judgment on behalf of Defendant XYZ which should be granted because there are no issues of material fact, which is the standard the court is to apply under the cases of . . . [string cite from the turn of the century forward].”

I know it’s a motion for summary judgment. I’ve read the title. I know who is bringing the motion. I know the standard. The first paragraph is a waste of time for you to write—and a waste of time for me to read. Capture my attention. Differentiate your motion from the others sitting on my desk. Give me a motion I want to read.

Kick Footnotes and String Cites to the Back

This is a slightly altered anecdote from an appellate court judge. In his view, footnotes were like the experience of having your popcorn popped, your favorite beverage in hand, and climbing a long spiral staircase to sit down in your favorite chair to watch a favorite movie or sporting match—only to hear the doorbell ring. If the information in the footnote is important, it needs to be in the main body of the brief. If not, make it an endnote instead.

Unnecessary footnoting and endless string citations are layers of insulation burying your important points. Put the string cites in the appendix. You want the skeptical judge to concentrate on why an exception should be made in your case. Separate the wheat from the chaff for your judge.

Write the Opinion

This is a great gift for judges. Just attach it to your brief or hand it up to the court and give the other side a copy. Also, send it in a format that the judge can modify. Put in findings of facts, the law supporting the decision, and the relief you are requesting. You may be surprised. The judge may just sign it.

Pareto Rules!

I can think of two times an appellate court commended my decision at the trial level. In both cases I did something different than the usual rote paragraph-after-paragraph recitation of facts followed by cases followed by reasoning. I used the Pareto Principle: 20 percent (or less) of my opinion revealed the basis for 80 percent of my ruling.

The first involved a litigant who tried to hide an asset. In my order, I made a timeline. I outlined the date with each and every omission of the truth or commission of a lie. The entire opinion was 12 pages. The timeline was one page. The appellate court set forth the complete timeline in its opinion.

The second was an asbestos case. I made a chart comparing the facts of the controlling case next to my case on one axis. On the other axis were the four factors that the controlling case told me I should apply. The entire opinion was 16 pages. The chart was a third of a page.

In both cases, the reader could simply look at the timeline or the chart and know quickly what the case was about and the reasoning for my decision.

Think of different ways to get the most information to your judge, in the most compelling way, using the fewest words. Think timelines, think charts, think visuals. Think different—then do it.


  • In re Marriage of Bradley, 961 N.E.2d 980, 2011 Ill. App. LEXIS 1236, 2011 IL App (4th) 110392, 356 Ill. Dec. 591.
  • Bowles v. Owens-Illinois, Inc., 2013 IL App (4th) 121072, 996 N.E.2d 1267, 2013 Ill. App. LEXIS 718, 375 Ill. Dec. 211, 2013 WL 5593672.


Mark Drummond, “Death Penalty Cases in a Traffic Court Setting”: Lessons from the Front Lines of Today’s Immigration Courts,” Litigation News (Jan. 15, 2019).

Note to Readers

The idea for this series of columns arose out of a video I did for the South Texas Pro Bono Asylum Representation Project (ProBAR) on convincing a skeptical judge. ProBAR is an ABA entity comprised of dedicated attorneys and paralegals who provide immigration help to detained adults and children along the border in the Rio Grande Valley. The Litigation Section’s Pro Bono Task Force is assisting ProBAR and is asking for volunteers to do short videos on general litigation topics, longer webinars, and to mentor individual ProBAR attorneys.

Immigration attorneys handle many cases, where the stakes are always high and there is a limited amount of time. The lessons and techniques used in this setting are valuable for all trial attorneys practicing in post-pandemic court systems. If you are interested in assisting with the ProBAR Project, please click on the Task Force link above.