Judge William Griesbach: "Pick your arguments, and throw out the ones that distract from the better points."
Judge Lisa Stark: "I don't always see attorneys giving a lot of thought to the legal issues and scheduling deadlines before a scheduling conference."
Judge Richard Brown: Judge Brown surveys court of appeals' judges; report that lawyers sometimes fail to provide sufficient background on the case.
April 6, 2011 – Tardiness or unpreparedness will obviously unnerve the most patient of judges. But lawyers, experienced and inexperienced alike, may be interested in learning the not-so-obvious behaviors or practices that aggravate or impress judges in general.
Lawyers will have an opportunity to hear first-hand from judges on “How to Impress or Annoy a Judge” at PINNACLE’s Litigation, Dispute Resolution, and Appellate Practice Section Institute, May 5-6, at the Frontier Airlines Center in Milwaukee.
The Hon. William Griesbach (U.S. District Court for the Eastern District of Wisconsin), the Hon. Lisa Stark (Eau Claire County Circuit Court), and the Hon. Donald Hassin (Waukesha County Circuit Court) will serve as panelists discussing their preferences and pet peeves. New Richmond attorney Timothy O’Brien, chair-elect of the State Bar’s Litigation Section, will serve as moderator.
“I want lawyers and judges to talk about improving the legal process and communication between lawyers and judges,” O’Brien said. “Knowing what judges like and dislike makes it easier for lawyers as the case moves through the court.”
Case management and scheduling
Judge Stark, a former litigator, will focus on case management and the issues that commonly arise in her courtroom. For instance, she believes lawyers often do not prepare enough for scheduling conferences at the outset of a case.
“My impression is that attorneys view scheduling conferences as relatively unimportant,” Judge Stark said. “I don’t always see attorneys giving a lot of thought to the legal issues and scheduling deadlines before a scheduling conference, which can lead to issues down the road.
“I don’t think attorneys are always realistic about how long it takes to get things accomplished. My philosophy is, tell me what you need and we will schedule accordingly, but then we need to live with what we’ve set. More preparation allows attorneys to set and meet realistic deadlines.”
Judge Stark’s other pet peeves? She dislikes when attorneys file court documents without giving her enough time to read them, or fail to make timely requests on issues that should have been foreseen. She and the other judges will also likely discuss issues involving discovery and trial practice, persuasive arguments and professionalism, and would appreciate questions and input from the attorneys present on these issues.
Impressing the federal district judge
Judge Griesbach, a U.S. district court judge the last nine years and a Brown County Circuit Court judge for five, plans to discuss effective and ineffective lawyering strategies. He said lawyers are generally very diligent in their representation of clients and their dealings with the court, but issues still come up.
Attorneys should know the substantive law and the rules governing jurisdiction before drafting the complaint, rather than waiting to respond to a motion for summary judgment, Judge Griesbach says. He also says following local rules are very important to judges.
“Check to see if the court has special instructions, general information, or other policies,” said Judge Griesbach, who maintains “special instructions for litigants.”
Filing “shotgun” or “kitchen-sink” complaints that make numerous claims when the focal point is just one or two claims is a practice Judge Griesbach dislikes, although he recognizes that lawyers are sometimes compelled to make all possible arguments.
“Pick your good arguments, and throw out the ones that distract from the better points,” he said. “However, I imagine attorneys are nervous about being selective because they don’t know what the judge is going to do. What looks like a strange argument today may become the law tomorrow.”
As the case proceeds, Judge Griesbach says he expects lawyers to be prepared for scheduling conferences, especially when it comes to time and scope of discovery requests. In addition, he says discovery is not a time for fishing expeditions, and judges aren’t impressed by requests that seem motivated by something other than a good-faith desire for legitimate information.
Lawyers should not abuse motions for summary judgment where the facts are clearly in dispute, Judge Griesbach says, and they should not create factual disputes where none exist.
At trial, Judge Griesbach says most judges don’t like to keep juries waiting. Notifying the court before filing motions in limine is also good practice, he says, as a way to warn the court of crucial issues before it sends for a jury.
In addition, Judge Griesbach encourages opening statements that are meaningful and concise to help the jurors understand the case, and urges objections to be strategic. That is, he urges lawyers not to object for the sake of objecting. He said counsel should avoid personally vouching for witnesses and excessive leading on direct exam.
“I appreciate leading on small issues that just get you to the point, but excessive leading is not the proper way to elicit information on direct examination,” Judge Griesbach said.
Judge Griesbach stressed the importance of structure when presenting expert witnesses, and preparing witnesses to testify when needed. Overall, he says preparation is a key component to impress a judge, or at least to avoid annoying one.
“Be prepared, know your case, and educate the judge about the facts,” he said. “Sometimes attorneys are uncertain about how much of the law to go into during argument. In the less common areas of law, it’s a good idea to ask the judge how much detail to cover.”
In addition, Judge Griesbach hopes attorneys who attend the institute session will be candid about their experiences with the legal process.
“I think we should have more conferences where judges hear from attorneys,” Judge Griesbach said. “A panel like this gives lawyers an opportunity to speak candidly.”
Finally, Judge Griesbach urges all attorneys to treat opposing counsel and court staff with respect, and to uphold the duty of honesty and integrity at all times.
Pet peeves from appeals court judges
The Hon. Richard Brown, chief judge of Wisconsin’s appeals courts, asked all appeals court judges to identify their top 10 pet peeves. He presented the most common pet peeves listed at the State Bar’s Annual Convention in 2008. Judge Brown says the list is still relevant today. The following list includes quotes from appellate judges around the state:
Misrepresentation to the court. The most common pet peeve listed by judges was conduct related to misrepresentation. “Misrepresenting what the trial court did or said,” or “citing a case for something it can’t be reasonably interpreted as holding,” were some comments from judges.
One judge said his or her top pet peeve is when a lawyer does not accurately represent the record. Others said “shading or omitting important facts” or stating the wrong standard of review will not score points with the judge.
Omitting record citations. “Omitting record cites so we have to go searching through the record to find out if the brief accurately represents the record” is another common pet peeve listed by judges. One dislikes when lawyers fail to use pinpoint cites.
Disparaging the trial court or opponent. “I am really put off when counsel attacks the personal integrity of opposing counsel in letters, which they copy to the court or in briefs,” one judge said. Other judges said they dislike personal attacks, snide remarks, innuendo, or sarcasm. One judge said his or her biggest pet peeve is “the growing tendency to wax personal in responding to arguments.”
Unorganized briefs. Some judges noted a dislike for repeated arguments, shotgun briefs, or “using acronyms for everything under the sun in one brief.” Lawyers should also avoid long sentences, long paragraphs, and passive writing.
Incomplete appendices. Lawyers should be diligent in filing documents with complete and accurate appendices, judges noted. “When the appendix does not tell me what I need to know, that bothers me,” one judge said. In addition, judges say every appendix should contain a copy of the trial court’s decision whether written or oral.
Insufficient background. Judges say lawyers sometimes fail to provide sufficient background on the case. “Some lawyers believe I know all the facts and jump right into the argument without giving [judges] any understanding of the case. Tell us the story first,” one judge said.
Ignoring or misunderstanding the standard of review. “If they don’t have the standard of review in [the brief], chances are they don’t know what it is and that will lead to a hopelessly disorganized brief that is wrong from the get-go,” a judge noted. Another judge said lawyers can benefit from noting the correct standard of review in briefs as a “reminder to the lawyer about how the argument needs to be framed.”
Typeface and density that makes documents harder to read. Judges noted a preference for Ariel font over Courier, but that may depend on the judge. “When the issue is whether a lawyer can ‘save paper’ as opposed to making for easier reading, think of the audience,” one judge said. Another judge said, “I dislike it when [a brief] is single spaced and crowded. What’s wrong with having a little space?”
Staples that aren’t strong enough.Sounds easy enough, but one judge noted, “I hate getting stabbed. Some lawyers must think that judges don’t actually put their hands on the briefs.”
Not quoting the statute verbatim or at least in pertinent part. Lawyers should not make judges go to the statute books, according to the judges. One judge said, “I dislike having to scrounge around looking for my statute book, especially if the issue is statutory construction!” Another judge dislikes when lawyers string cite to statutes without telling the judge what the statute refers to.