April 2011 • Volume 99 • Number 4 • Page 174
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What judges want
You'll make your judge happy - or at least less unhappy - if you learn some of the unwritten rules that vary by type of case presented and by region.
Even the youngest and most inexperienced of lawyers should know that it's important to behave respectfully toward judges. But new lawyers may not realize that there are more nuanced, unwritten rules of behavior toward the bench that, like other rules of courtroom and courthouse practice (see this month's cover story), vary with the sort of case presented and from region to region within the state. Being aware of those rules is integral to successful courtroom practice.
Procedural versus people-oriented cases
Chicago lawyer Thomas W. Williams says recognizing what sort of case you're bringing before the judge is one key to proper behavior. Williams finds it helpful to think of cases as falling into one of two broad categories: those involving the resolution of disputes and those involving the protection of people under disability, including children in custody matters, persons alleged to be disabled in guardianship proceedings, and persons seeking social security disability.
In his experience, judges presiding over hearings in cases involving the former category focus on the cases' procedural posture, including the progress and management of discovery. Judges presiding over hearings in the latter category of cases, he says, will be likely to have the current welfare of the ward or respondent at the forefront of their concerns, along with the progress of pending matters. And in those cases, he says, judges may be more likely to take action based on their views of their independent judicial responsibilities to make sure wards or respondents receive the protection needed.
Williams advises lawyers handling the former type of case not to volunteer argument on the merits of the matter unless the hearing calls for such argument. Instead, at a status hearing on a case involving a disputed contract, for example, lawyers should advise the judge of the case's procedural posture, including whether discovery is completed, whether extensions are needed and whether disputes exist, whether either party anticipates filing a motion, and whether the matter is ready to be set for trial. At a status hearing in a matter involving the latter type of case, such as a guardianship, Williams suggests advising the judge of the respondent's or ward's condition and what required filings (such as accountings) or other matters remain.
"In either type of case," says Williams, "the court will generally only rule on issues presented that have been placed in dispute by proper motions, including due notice, time to respond and reply, and so on." Occasionally, however, courts may issue orders sua sponte, which, he says, generally involve discovery issues.
Downtown versus down-home
Williams adds that the two types of cases sometimes merge, resulting in "cases within cases." Parties may initiate supplementary proceedings within probate matters, for example, to resolve disputes. In that event, consider whether the purpose of a given hearing is to advance the resolution of a dispute or to further the protection of a person under a disability, and address the court accordingly.
When in doubt, Williams says, "Don't hesitate to ask other lawyers and the judge's clerks questions about how a particular matter should proceed." Ask them in what format the judge prefers to have you present the matter to resolve the issue at hand, Williams says.
In addition to recognizing the sort of case you're bringing, consider also in what circuit you're bringing it in formulating your approach to the judge. Individual circuits in the state have different rules of etiquette. For example, as a general rule, the smaller the county and the further from Chicago, the more likely it is that judges will expect or welcome new lawyers' introducing themselves.
In Cook County, on the other hand, lawyers should proceed with more caution, for judges there may view any attempts on the part of a lawyer to communicate anything, even as innocuous as an introduction, as potential ex parte communications that carry the appearance of impropriety.
Cook County judges, whether state or federal, will also be likely to expect lawyers to have extra copies of pleadings and other papers, known as "courtesy copies," delivered to their chambers in advance of hearings. Downstate judges, on the other hand, may be very happy for new lawyers to knock on their office doors and introduce themselves. They may also view "courtesy copies" as silly and consign them to recycling boxes.
Williams and other lawyers reiterate the wisdom of reading the local rules, checking for general orders, and talking to the clerks and other court personnel about what behavior judges expect from lawyers. In whatever county you're practicing, ask the judge's clerk or secretary whether it's all right to go up to the judge's bench during a recess or before or after a court call or to knock on the judge's office door to introduce yourself. Ask the clerk or secretary whether the judge has a policy or standing order on courtesy copies.
Follow those cues, and you'll enhance your chances of making a good impression on the judge.