In an article for the American Bar Association, Illinois trial judge Mark Drummond published a “Top Ten” list of things judges want. Judge Drummond offers several guidelines that are extremely helpful in being an effective advocate. Moreover, following these principles will enhance the chances of success in the event of an appeal.
Trial Judges Want To Be Affirmed On Appeal
Judge Drummond wrote that that a judge’s “biggest fear is having a jury trial overturned and having to do it all over again.” However, because a judge is not as familiar with the case as the attorneys, a judge may need time or more information in order to fully analyze the admissibility of a particular piece of evidence.
Thus, Judge Drummond recommends that attorneys make liberal use of offers of proof. In addition to preserving issues for appeal, an offer of proof gives a judge more time to think about an issue without the pressure of making a split-second decision in front of a packed courtroom. An offer of proof or a request for reconsideration likewise allows the trial judge the opportunity to conduct quick legal research during a break.
Therefore, Judge Drummond advises attorneys to not “assume that objection sustained is the end of it. I don’t want to have to do this again, and if I can trust you on issues of law or evidence, I will always give you a second chance.”
Judges Want Attorneys to Disclose Contrary Authority
Judge Drummond writes that “there is nothing more impressive” than the advocate who discloses cases that are arguably adverse to the lawyer’s position. Judge Drummond recommends going beyond the minimum requirement found in most states’ professionalism rules to disclose cases that are directly adverse to a party’s position.
Because judges have large caseloads, and must often make quick decisions, it is extremely powerful to be known as an attorney that a judge can always count on to provide accurate statements of the law.
Furthermore, the disclosure of contrary cases has strong persuasive power, because it demonstrates to the court that the attorney is less concerned about the contrary authority when its existence is admitted.
Judges Want Good Jury Instructions
Judge Drummond writes that judges value juror’s time more than any other trial participant. Thus, nothing frustrates a judge more than requiring jurors to wait while the court and counsel try to craft a useable set of jury instructions.
Under most circumstances, proposed jury instructions can be completed before trial. Likewise, alternate jury instructions that depend on how the evidence may shake out should also be prepared in advance, so they are ready to be presented at the instruction conference.
In addition to the points raised by Judge Drummond, thoughtful advance preparation of proposed jury instructions reduces the chances of the jury being erroneously instructed, as well as properly preserves for appeal any disputes in the instructions.