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Inside a Judge's Head

By Charles S. Fax, Litigation News Associate Editor

 

In preparing for your next trial, wouldn’t it be great if you could gaze inside your judge’s head? You would know exactly what to do in court—and what not to do—to maximize your case. Hon. Mark Drummond has been on the trial bench in Illinois for over 16 years, having litigated for the preceding 20 years. He teaches trial advocacy all over the world and has authored a column on trial advocacy for Litigation News since 2003. A collection of Judge Drummond’s noteworthy columns has been organized topically and published by the ABA Section of Litigation as Practice Points for Trial Lawyers.


This is much more than a “how-to” manual. Only one of the essays is captioned “What Judges Want,” but that would be an apt title for the entire collection. Taken as a whole, these essays, in addition to imparting trial skills, illuminate the view of a seasoned trial judge and senior practitioner in assessing the professionalism, skill, and advocacy of the attorneys appearing before him. While his insights and opinions may not be shared universally by the bench, they reflect the sensibilities of a thoughtful, fair-minded judge striving to achieve justice for the litigants before him.


The book’s organization follows the chronology of a case, with chapters captioned, in sequence, “Trial Preparation,” “Jury Selection,” “Trial Presentation,” “Witness Examination,” and “Professionalism.” Each chapter contains five or six essays pertinent to the chapter heading. The essays are not comprehensive; rather, Judge Drummond writes about those aspects of a given topic, e.g., jury selection, that interest him. His selections are part of what makes this book so valuable, disclosing the priorities of an exemplary jurist whom you are trying to persuade.


Another feature of this text that distinguishes it from many trial practice narratives is the accessibility of the information. While it is a delight to read Irving Younger, how many of us believe that we can really perform to his standards? Judge Drummond, however, offers guidance that can easily be followed by any practitioner. For example:


    I like the phrase, “Tell us, Doctor, what is a comminuted fracture?” as opposed to, “Doctor, would you please tell the jury, what is a comminuted fracture?” The later version has the veiled message of, “Doctor, you and I know what a comminuted fracture is since we have many years of college after high school where we, by the way, did very well, but please Doctor, enlighten these poor schmucks!” Never underestimate a jury or even imply you are talking down to the jurors. “Tell us” is better than “Tell them.”


Every page in this collection contains three or more practical illustrations of comparable utility. Here is another that makes the judge’s point more effectively than other teaching texts I have read. Judge Drummond is illustrating the virtues of moderation in cross examination.


    The attorney wants to show that the witness (plaintiff) did not seek medical treatment after the accident. The aggressive attorney would do something like this:


    Attorney: “After the accident, you didn’t ask for an ambulance?”

    Witness: “Well I didn’t feel hurt at that time.”

    Attorney (loud and dripping with sarcasm): “Ms. Smith, I didn’t ask you how you felt, I asked whether you asked for an ambulance. Yes or no. Now can you answer that?”
    The contrast is for the attorney to simply repeat the question slower and softer until the attorney gets the answer he or she wants.

    Attorney: “You didn’t ask for an ambulance?”

    Witness: “Well I didn’t feel hurt at that time.”

    Attorney (softer): “You didn’t ask for an ambulance?”

    Witness: “Well, like I said I didn’t feel hurt at the time.”

    Attorney (even softer and slower): “You didn’t ask for an ambulance?”

    Witness: “No.”


    By simply repeating the question to which the attorney is entitled to a “yes or no” answer, the jury is soon sitting there siding with the attorney and looking at the witness screaming in their minds, “Oh, just answer the question!”


Read Judge Drummond’s book. Not every essay will speak to you. For example, some of his suggestions for trial preparation and organization are not applicable to the federal courts. But at least once on every page, you will find a helpful suggestion that will make you a better advocate the next time you are in court. And if you are appearing before Judge Drummond, you will be the best.


Keywords: judge, practice points, young lawyer, tips, trial lawyer, jury selection, trial preparation


Practice Points for Trial Lawyers: A View from Both Sides of the Bench (ABA 2015) is available at the ABA Web Store or by calling 1-800-285-2221.


 
 
Copyright © 2017, American Bar Association. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or downloaded or stored in an electronic database or retrieval system without the express written consent of the American Bar Association. The views expressed in this article are those of the author(s) and do not necessarily reflect the positions or policies of the American Bar Association, the Section of Litigation, this committee, or the employer(s) of the author(s).


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