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.

"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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