• April 14, 2015
Drawing of Anger, made possible by Creative Commons, http://goo.gl/pYeceX

Drawing of Anger, made possible by Creative Commons, http://goo.gl/pYeceX

Last week, the Minneapolis powerhouse of Faegre Baker Daniels hosted an HCBA CLE: Civil Litigation and Bench & Bar: Things that Lawyers Do that Drive Judges Crazy and Vice-Versa. The following Hennepin judges generously gave their time to this bench/bar get-together: Judges Diane Bratvold, John McShane, Tom Fraser, James Moore, Daniel Mabley, Margaret “Peg” Daly, Bill Fisher and Ivy Bernhardson (in the order they sat).

I attended the CLE with interest but I left before a bounteous reception of delicious appetizers, beer, wine, and non-alcoholic drinks.

Here is my take-away in a nutshell:

1. Judges are driven crazy by stupid idiot lawyers;

2. Lawyers are driven crazy by stupid idiot judges;

3. Because of scarcity of resources and time, I would submit that even fairly smart lawyers and fairly smart judges come across to one another from time to time as stupid idiots because, let’s face it, many problems we deal with are complex and we don’t have all the time in the world to figure them out perfectly (also many of us are human, meaning that we’re all stupid idiots from time to time);

4. And, finally, the lowly and envious solo scrappy lawyer (yours truly) must add an insecurity that rich and successful law firms might have a subtle and immeasurable edge with some judges. The firms can host events like this event, which might raise the firm’s lawyers’ stature in the minds of judges to some degree if only by virtue of the opulence of their offices and their spread. (Hard to ignore the contrast between Faegre’s offices and Hennepin County Government Center.)

This final point is maybe cynical and is undoubtedly vigorously contested by the large firm lawyers who moan with resentment about how courts bend over backwards to help “the little guy.” There’s some truth to that too.

Having said that, what, more specifically, did the judges and lawyers discuss?

Advice to lawyers: Do not make arguments personal. Do not say, for example, “Attorney Jones refuses to produce a single __ document…'” Instead, say, “Plaintiff (or Defendant) has failed to produce a single __ document.” (A point made by Judge Moore.) (Note this advice and others are not “verbatim” quotes but the gist of the advice.)

More advice to lawyers: Do not launch into diatribes against other lawyers when you retire to the judge’s chambers to discuss a case. (A point made by Judge Daly.)

More advice to lawyers: Do not miscite cases.  You risk damaging your credibility with the judge. Keep in mind that our justice system is a collaboration between the bench and the bar and, if you are an unreliable resource for information, you’re useless. (A point made by Judge Bernhardson.)

More advice to lawyers: At trial, going through experts’ resumés is boring and ineffective. Juries do not care whether your expert is a member of some professional society or if she chaired some subcommittee on some industry council or the like. They really don’t care. You are wasting everyone’s time. (A point made by Judge Fraser.)

Advice to judges: Recognizing that sometimes it is simply required and outside of anyone’s control, but when you move trial dates particularly on short notice (under 30 days, say) you might not appreciate but you really should appreciate how costly and disruptive that is for lawyers and, more importantly, for clients and third parties, who might have made travel plans, personal/professional scheduling plans, etc. (Anonymous.)

Advice to judges: When you sit on summary judgment motions for months as the trial date approaches, you might inflict terrible costs on litigants who must prepare for trial while, at the same time, feeling quite confident about their summary judgment motions. (Anonymous.)

On a final related point to the penultimate point, I think the most interesting “disconnect” between the bench and the bar was the following: Lawyers would like judges to signal how they are going to rule on motions as soon as possible. Judges at the CLE seemed to think that it would be difficult or humiliating to lawyers if, immediately after hearing a motion, judges quickly said that they were inclined to deny (or to grant) the motion. There seemed a broad consensus in the room among lawyers, however, that lawyers and their clients would strongly prefer a speedy answer (good or bad) over a “kinder gentler” let-down weeks or months later.


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