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If Only [Lawyers]
[Judges] Would ...
"I understand the psychology of this," McCormack
says. "Oftentimes (the parties) don't face reality
until it hits them in the face the morning of the trial. But
if we could get a lot of these cases settled without using court
time to do it, I think we'd all be better off."
"As a lawyer, I never knew about the circuitous route
correspondence can take. It's important for lawyers to build
that into their lead times." Joseph McCormack, Ozaukee County
circuit court judge |
Charles Senn, an attorney from Thorp, agrees that settling
a case on the trial date wastes time for both attorneys and judges.
That might be avoided, Senn says, if opposing counsel were to
communicate better from the outset. "Sit down early in the
process," he advises, "and ask, 'What are the
real issues here?' We're all busy, but we need to do
that at some point earlier than the day of trial or the day before
trial."
7) Help set a respectful tone in the courtroom. Lawyers
often believe the judge is the one to set the overall courtroom
atmosphere. But attorneys may forget how much impact their behavior
has, judges say. Maxine White, Milwaukee County circuit court
judge, notes that lawyers have enormous power in assisting judges
to control their courts.
"Sometimes I'll tell lawyers at sidebar," White
says, "that they're raising the level of agitation
for everyone (in the courtroom). One of them hollers, the clients
start acting the same way, and soon no one is nice. They're
setting a tone out there. I think the biggest impact lawyers
and judges can have is to restore a level of respect in the courtroom.
In this society everyone is in a hurry. But it doesn't take
that much more time to be respectful."
Pointers for Judges
1) Be on time; stick to your court schedule. Just as
lawyers are expected to appear in court on time, they want judges
to do the same. Some judges still seem to subscribe to the old
attitude of "they can't start until I get there,"
and thus they're cavalier about showing up at a set time.
Some, in fact, habitually are late for their first hearing of
the morning. Every late start eventually ripples through the
entire day, throwing off lawyers' and other courts'
schedules, and also inconveniencing parties and witnesses.
Another reason court schedules break down is that hearings
run overtime. Judges could remedy that by sticking to their schedules,
lawyers say. If the hearing is set for two hours, give it two
hours.
"I think the biggest impact lawyers and judges can have
is to restore a level of respect in the courtroom. In this society
everyone is in a hurry. But it doesn't take that much more
time to be respectful." Maxine White, Milwaukee County circuit
court judge |
Sometimes, however, overruns are unavoidable, judges contend.
Taking an additional 20 minutes to wrap up a matter usually is
preferable to having everyone come back another day. Also, judges
may grant parties and attorneys appearing in court a few minutes
to try to reach a stipulation, as McCormack mentioned above.
"I suppose I could put my foot down," he notes, "and
say we're going to try this case because I'm sick of
waiting. But I'm disinclined to do that because, especially
in a divorce case, a settlement is almost always better than
a judgment. If you can get the case settled, it's less likely
to come back than if the judge ends up making a bunch of decisions
and crams them down everybody's throat."
Thus, both lawyers and judges play a role: Judges can strive
to adhere to their court schedules. Lawyers can help judges do
that by settling cases long before the day of trial, and by being
realistic in requesting time allotments on the court calendar.
As for other-time related issues, reserve judge and Rhinelander
attorney Timothy Vocke, points out that both judges and lawyers
need to be aware of the time pressures on the other. One factor
that devours attorneys' time is waiting, perhaps for hours,
for hearings that may last only minutes. "On those busy
days when there are lots of initial appearances, traffic returns,
and so on, one thing judges should do is put the attorneys'
cases first," Vocke suggests. "Many of those hearings
take two minutes. There's no reason you can't get the
attorneys out of there quickly and save their clients some money."
"Settling a case on the trial date wastes time for both
attorneys and judges. That might be avoided if opposing counsel
were to communicate better from the outset." Charles Senn,
Thorp attorney |
Finally, Judge VanDeHey passes along a tip that's helped
him get more out of his court calendar. He begins his court about
45 minutes earlier than the traditional 9 a.m. start in Grant
County. "We take care of a lot of the shorter hearings before
9 a.m., and that seems to really clear up the calendar,"
VanDeHey says. "It's like adding another day to your
work week." He adds he's encountered no resistance
from lawyers, many of whom start their day early anyway, and
who would much rather be in court at 8:30 a.m. than 5:30 p.m.
2) Be prepared. This advice appeared among judges'
pointers for lawyers, and it surfaces again here. For lawyers,
"it's frustrating when you come into court and it's
obvious the judge doesn't know why you're there,"
says Maria Dixon of the Milwaukee County district attorney's
office. Lack of preparation also leads to a poor court record,
Dixon notes. That can result in appeals and, she says, "more
work down the road at the next level."
Wettersten found similar sentiments reflected when she surveyed
several colleagues via an electronic list before participating
in the convention panel discussion. Lawyers want judges to read
motions and know the law. "One of my favorite suggestions,"
Wettersten adds, "came from someone who said, '(Judicial)
discretion does not mean make it up as you go.'"
3) Enforce civility. Just as judges want lawyers to
remember their role in keeping courtroom proceedings congenial
and respectful, attorneys want judges to act when lawyers cross
the line. "Judges have a responsibility to enforce the new
standards of professional civility," says Vocke, noting
that some judges have taken strong steps, either through verbal
warnings or sanctions, to get out the message to attorneys that
they must take the standards seriously.
"Give (attorneys) a fair chance to present their arguments,
and then it's (the judge's) time. Failing to take control
sends a message to attorneys that whoever gets in the last word
is more likely to win." Timothy Vocke, reserve judge and
Rhinelander attorney |
4) Look interested; get names right. It matters a great
deal to attorneys and clients that judges look interested and
attentive. "Clients really care about what's going
on in court," Wettersten points out. "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."
A related issue is getting clients' names right. Take
pains to learn the proper pronunciation because, again, this
conveys to clients that judges care and are listening. Write
the name down phonetically to help you remember how to pronounce
it throughout the proceedings, and ask people to correct you
should you mispronounce later.
Do the same with lawyers' names. "It's not
so much that I care if my name is mispronounced," Wettersten
says. "But what that says to my client is that the judge
doesn't know who I am and hasn't seen me in court before."
5) Ask questions sparingly during a jury trial. Should
judges ask questions of witnesses during jury trials? That issue
stirred considerable discussion at the convention session. Judges
asking questions can be problematic for lawyers, notes Timothy
O'Brien, who describes a scene familiar to many of his colleagues.
"The opposing side hasn't laid a hand on your witness,"
he notes, "and then all of a sudden the judge says, 'Just
a second. I have a couple questions.' You feel your heart
dropping into your shoes because you know the judge used to be
a prosecutor - and a better prosecutor than the one you're
going against."
Many lawyers contend that in jury trials, judges should leave
the questions to the lawyers, period. Many judges would agree,
arguing that when judges question witnesses before a jury, it
creates an impression of bias on the judge's part. But others
believe judges' questions, of a limited nature, have their
place in jury trials.
"Judges asking questions can be problematic for lawyers.
The opposing side hasn't laid a hand on your witness, and then
all of a sudden the judge says, 'I have a couple questions.'
You feel your heart dropping into your shoes." Timothy O'Brien,
New Richmond attorney |
"I've struggled with this issue since I became a
judge," Franke says, "and I tend to ask questions more
than most. I think clarification questions are important. If
you see that the jurors' faces are blank slates and they
have no clue about what just happened, I think it's appropriate
for the judge to ask questions" that help jurors understand
what they heard.
Attorney Dixon agrees that those kinds of questions coming
from a judge can be useful. "They may clarify something
that an attorney has asked, but maybe in a jumbled question,"
she says. "I've seen that work." But overall,
Dixon remains wary of the practice. "Sometimes the judge
will ask questions the attorney purposefully didn't ask,"
she notes. "It may take things down a path the attorney
didn't want to travel."
Remedies suggested among convention session participants were
to encourage more questions from jurors. Also, if a judge wants
to question a witness but feels the attorneys may have concerns,
the judge ought to ask for a sidebar. That keeps the question
and any concerns it raises from coming out in front of the jury.
And, if one or the other of the attorneys feels it's a valid
question, he or she can offer to ask it, rather than the judge
doing so.
6) Stick to your decisions. One quality all lawyers
look for in judges is the ability to take charge of the courtroom,
says Vocke, and that includes firm decision-making. He's
seen instances when both sides have presented their arguments,
the judge has begun delivering a decision, and the attorney whom
the decision is going against begins to resume argument. "Don't
let attorneys do that," Vocke advises. "Give them a
fair chance to present their arguments, and then it's your
time." Failing to take control in that way, he adds, sends
a message to attorneys that whoever gets in the last word is
more likely to win.
Dianne Molvig operates Access Information
Service, a Madison research, writing, and editing service. She
is a frequent contributor to area publications.
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