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Vol. 73, No. 4, April 2000 |
If Only [Lawyers]
[Judges] Would ...
Thought-provoking panel discussions at the State Bar's
Midwinter Bench and Bar Conference identified steps judges and
lawyers can take to make courtroom proceedings more effective,
efficient, and even pleasant.
by Dianne Molvig
hances are a day seldom goes
by without judges and lawyers having at least one episode of If Only's.
Lawyers think to themselves, "If judges would only ... ,"
while judges ponder, "If lawyers would only ... ." Each can
identify steps the other could take to make courtroom proceedings more
effective, efficient, and even pleasant. But rarely do judges and attorneys
sit down together to communicate such thoughts to those on the other
side of the bench.
Some had the opportunity
to do just that during panel discussions at the State Bar Midwinter
Convention. If you missed the sessions, here's your chance to listen
in on the exchange of ideas. Space doesn't allow inclusion of all
topics discussed. But the following are some of the major points gleaned
from the panelists' presentations, as well as from conversations
with a few others.
Pointers for Lawyers
1) Use more visual aids and summary exhibits. In a
jury trial, a lawyer functions both as a salesperson and a teacher,
points out John Franke, Milwaukee County circuit court judge.
"It's the teaching function that requires some kind
of visual aids for the jury," he says. "Jurors often
don't 'get it,' and it's not their fault."
Franke likens what too often happens in the courtroom to a classroom
where the teacher fails to use so much as a chalkboard or picture,
and yet expects students to learn. But we all learn in large
part by seeing, not by hearing alone.
Visual aids can be as simple as enlarged diagrams or as high-tech
as laser point presentations. Even passing out 12 copies of a
summary exhibit to individual jurors gives them something to
follow while listening to testimony. The idea is to put information
before jurors' eyes that helps them understand what they're
hearing during proceedings.
"I've had cases involving complicated accidents
that get to the rebuttal evidence stage before the jurors were
given a good diagram of the accident," Franke says. "That
may sound strange, but it's true. And the same kind of thing
happens to a lesser degree all the time."
"If (lawyers) were going to drive out (for the hearing),
they'd take a few minutes to look at the file and know what
it's about. When they call in, they don't have a clue."
John Storck, Dodge County circuit court judge |
Visual aids also can be effective in opening and closing statements,
although attorneys report sometimes encountering obstacles. "I've
tried to use exhibits (during openings)," reports Madison
attorney Nancy Wettersten, "and have had opposing counsel
object on the grounds of hearsay. Lots of times judges haven't
thought about it and will sustain the objection."
That may be an area needing judicial education, suggests Franke.
"If you can describe an accident in words to a jury during
an opening," he notes, "it's beyond me why you
can't draw it out for the jury."
2) Be prepared. This bit of advice is perhaps obvious,
but no less important, judges say. Have your documents in order,
your exhibits lined up for marking, and be sure your witnesses
know what to expect. "It simply impresses the trier of fact,
whether that's a judge or a jury, if the lawyer comes in
and is able to present his or her case in an efficient manner,"
says Robert VanDeHey, Grant County circuit court judge.
What's more, lack of lawyer preparedness makes it difficult
for a judge to do his or her job effectively, points out John
Damon, Trempealeau County circuit court judge. "It's
always disappointing on this side of the bench," Damon says,
"when attorneys come in and throw some facts out there,
and then expect us to apply the law. We're probably the
least knowledgeable of anyone in the courtroom about that specific
case. We don't get to interview the clients. We only know
what you present."
3) Know the local rules. A sure-fire way for lawyers
to irritate court officials is to walk into a courtroom and assume
that another county's procedures apply. It shows you haven't
bothered to do your homework. Local rules are available online,
and if you have any questions, a call to the court is appropriate,
says Ann Krummel, Columbia County judicial commissioner. "If
you come into Columbia County and tell us how they do it elsewhere,
we'll listen," Krummel says, "but we'll quickly
conclude you didn't take the opportunity to call us and
ask how we do things in our county."
"If you come into Columbia County and tell us how they
do it elsewhere, we'll listen. But we'll quickly conclude
you didn't take the opportunity to call us and ask how we do
things in our county." Ann Krummel, Columbia County judicial
commissioner |
Being uninformed sets you up for unpleasant surprises, Krummel
warns. For instance, in her court she'll allow up to four
hours for a temporary order hearing in the early stages of a
divorce, if warranted. Local attorneys already know that, but
out-of-county attorneys often assume the hearing will last 20
minutes - and come prepared accordingly. "You can call
and ask how much time the court has allocated for a hearing,"
Krummel says. "That's a reasonable question. I'd
rather you gave me the opportunity to control my calendar in
that way than to have a mess (later)." She adds that if
there are ex parte concerns, a lawyer should set up a conference
call with a judge and include opposing counsel.
4) Take telephone hearings seriously. Many judges allow
telephone appearances at hearings as a way to save lawyers'
time and their clients' money, especially when the attorney
has to drive many miles to appear in person. But too often attorneys
abuse the convenience of telephone hearings, judges report. Lawyers
call in later than the designated time, or fail to call at all.
"Sometimes they don't even look at the file before
they call," says John Storck, Dodge County circuit court
judge, "because it's so easy. If they were going to
drive out (for the hearing), they'd take a few minutes to
look at the file and know what it's about. When they call
in, they don't have a clue." Another annoyance: Attorneys
call from their car phones, going in and out of dead zones as
they speak.
Such abuses leave many judges wondering whether to continue
to allow telephone hearings. New Richmond attorney Timothy O'Brien
is among those lawyers who appreciate the time and cost savings
of appearing by phone. "I would encourage judges to use
the telephone more," O'Brien says, "but to crack
down on the abusers. Put on your scheduling order that you allow
appearances by phone, and if lawyers abuse it, they should understand
they'll have to appear in person."
On the flip side, lawyers complain about calling in long distance
for a telephone hearing only to be put on hold while the judge
wraps up another hearing. This occurs because many judges try
to avoid calling attorneys back to save their counties money.
Thus, keeping attorneys waiting on the phone may be unavoidable,
judges say. Still, the cost to the attorney of waiting on hold
is minor compared to the expense of driving 40 miles to attend
in person.
5) Make sure letters to judges are informative and appropriate.
Letters waste judicial time if they lack basic information, such
as: What case does the letter pertain to? When is the matter
scheduled for a hearing or trial? What is the status of the case?
What is the purpose of the letter? What are you asking of the
judge? Presenting such information in the letter spares judges
from having to wade through files before they can respond.
Furthermore, resist the urge to "cc" a judge on
letters to opposing counsel. It multiplies the judge's incoming
mail, all the more so because opposing counsel then feels obligated
to "cc" the judge when responding to the original letter.
"So now I'm reading all these letters, and I don't
know why in the world I got the first one to begin with,"
Storck says.
"Clients really care about what's going on in court.
They're getting divorced, or their kid's in trouble, or
they're accused of a crime. It's one of the most important,
horrible things that's ever happened to them. And I've
had judges fall asleep." Nancy Wettersten, Madison attorney |
Be aware, too, that correspondence may be slower than you
think in reaching judges' desks. By the time mail is sorted,
routed, and docketed, it may be days before it lands in a judge's
in-basket. "As a lawyer, I never knew about the circuitous
route correspondence can take," says Joseph McCormack, Ozaukee
County circuit court judge (working in the same courthouse today
in which he appeared as a lawyer). "It's important
for lawyers to build that into their lead times" in sending
documents they want a judge to see before a hearing.
Also, bear in mind that a fax usually ends up in a judge's
incoming correspondence pile and will be reviewed no sooner than
a letter. Send faxes only when there's a genuine urgency.
6) Avoid using trial time to settle a case. Perhaps
it's only human nature: Parties go along for months failing
to agree. Then the trial date arrives, and at the last minute
the attorneys manage to hammer out an agreement. McCormack sees
this particularly in divorce cases in his court. The parties
and attorneys show up for trial, and the attorneys ask for a
few minutes to talk with their clients in the hallway to make
one last attempt at reaching a stipulation. Half an hour or more
goes by, while court personnel wait.
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