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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