The newsletter of the ISBA’s Standing Committee on Government Lawyers
Judge Wayne Andersen shares practice tips with government attorneys
On December 2, 2008, the Office of the Attorney General was honored to have the Honorable Wayne Andersen of the United States District Court for the Northern District of Illinois speak as part of the Office’s Distinguished Speakers Program. Judge Andersen has been on the District Court bench since 1997. Prior to his appointment to the Federal bench, he was a Cook County Circuit Court judge, and he served as the Supervising Judge in the Chicago Traffic Court. Before rising to the bench, Judge Andersen was a Deputy Illinois Secretary of State and the administrative assistant to Henry Hyde when he was the majority leader of the Illinois House of Representative. He also was appointed as a Special Assistant Attorney General in several condemnation cases.
Judge Andersen is in a unique position to comment on the work of public service attorneys. He has both worked for the public and presided over many cases prosecuted or defended by governmental attorneys. Judge Andersen commented that though the rewards of public service can be great, financial wealth is not among them. He elicited several groans of longing from the crowd when he mentioned one of his former law clerks received a $50,000 signing bonus from a private firm upon leaving the clerkship.
Judge Andersen presented several practice tips for governmental attorneys. He suggested that when we first appear before a new judge, sit up front, listen, and get to know how the judge works. Our knowledge of the judges is part of our profession. Some judges may treat governmental attorneys differently than private attorneys, for good or ill, but all judges are different. Judge Andersen mentioned that in spite of the differences, all judges believe they are doing the job the right way. Because we cannot change a judge’s personality, we should get to know them and work with what we learn about them. Some judges are frustrated by governmental attorneys because we do not have large staffs or resources to meet quick deadlines. Judge Andersen suggested that we calmly explain our situation to these judges, but do not complain or get upset. Even if the judge does not accept our explanation, it is on the record. We can only do the best with what we have, and eventually most judges will accept this.
Judge Andersen is one of a handful of judges that will let jurors ask questions during a trial. He tells the jury that they may submit any question they want in writing, but if the question is not asked, they will not be told why the question was not asked until after the trial. After the questions are submitted, any objections by counsel are argued outside the presence of the jury. Sometimes he may change the language of the question but leaves the spirit of the question intact. Both parties’ attorneys are permitted to ask follow-up questions after the witness answers the jury’s question. Judge Andersen mentioned that attorneys can be frustrated by jury questions because the jurors can disrupt a plaintiff or defense theory of the case by getting to the actual truth of the matter.
The Judge provided a few practice tips to keep attorneys from aggravating the judge or jury: (1) after 3:00 p.m., do not ask the same question more than twice; (2) understatement is more powerful than overstatement for both juries and judges; and (3) jurors do not like it when an attorney “dings” a witness. Judge Andersen also does not like it when an attorney does this. Again, understatement is more powerful than a forceful accusation.
Judge Andersen spoke about the differences between bench and jury trials. He stated that with a bench trial, the judge is often more interactive, asking questions of the witnesses. Judge Andersen stressed that opening statements in a bench trial should almost always be under five minutes long. The judge already knows the issues through motions in limine, settlement conferences, etc. Also, Judge Andersen indicated that jurors notice more irrelevant things during trial than a judge notices. After one case, a juror mentioned to Judge Andersen that he saw one of the attorneys start the trial with a wedding ring but by closing, the ring was gone. The juror was wondering why, even though it had nothing to do with the issues in the lawsuit.
When opposing a pro se plaintiff, as many public sector attorneys do, Judge Andersen suggests whittling the case down legally as much as possible and quickly advising the court which defendants do not belong in the case. Judges, in general, do not like to see governmental attorneys beat up on pro se individuals. We should always be professional, but an extra dose of professionalism and civility in pro se matters may raise our credibility with the judge.
Judge Andersen listed what he often sees as lawyers’ biggest mistakes. First, lawyers usually advise their clients to not say they are sorry. Many lawsuits would likely never see the light of day with only an apology. In some situations, this is the right thing to do, and attorneys should not be fearful of it. Second, Judge Andersen sees lawyers get caught up in the daily litigation struggle so much that they take their focus off the reason for the litigation, i.e., to resolve the dispute. Parties sometimes refuse to settle because they “want justice.” Judge Andersen will pointedly ask, “If the jury decides against you, is that justice? The opposing party certainly will think so.” This can give a party pause, and the case can proceed to settlement.
Finally, when bringing a post-trial motion or raising an issue when a case has been off the judge’s radar for some time, feel free to use a sentence or two to refresh the judge’s recollection of the case. According to Judge Andersen, judges have “erasure brain,” meaning that once a case is over, or an issue is decided, the judge forgets the matter. This allows the judge to remain neutral in the next case involving similar issues or the same attorneys. A sentence or two mentioning the main issue or something that occurred during the case is all is generally required to bring the case to the forefront of the judge’s mind.
The Office of the Attorney General very much enjoyed Judge Andersen’s program, and the crowd appreciated his willingness to answer a variety of questions, from general legal issues to specific matters. Judge Andersen concluded his remarks reminding all governmental attorneys that we have a high moral calling, and we need to conduct our business with a sense of humility. We have extremely important jobs, and we should always remember to keep the public good at the forefront of our practice.