Convincing the Skeptical Judge: Think Different

• Author: Mark A. Drummond
• Pages: 30-31

Published in Litigation News Volume 47, Number 1, Fall 2021. © 2021 by the Ameri can Bar Association. Re produced with per mission. All rights re served. This info rmation or any porti on thereof may not be c opied or disseminated in any f orm or

by any means or stored in an el ectronic database or r etrieval system w ithout the expre ss written cons ent of the American Bar A ssociation.

By Hon. Mark A . Drummond (Ret.), Litigatio n News Associate Editor

“The most effec tive way to do it, is to do it.”

—Amelia Earhart

“The most precious res ource we have is time.”

—St eve Jobs

hat connects A melia Earhart and Steve

Jobs? How does this conn ection apply to

the practice of law? On Augus t 8, 1997,

Steve Jobs introduced Apple’snew sloga n,

“Think d ifferent.”Apple’s campaign combine d

the slogan with pic tures of people such as Albert Ein stein,

Bob Dylan, and A melia Earhart. Years later, I thin k Nike

just shortened Ms. E arhart’s advice to “Just do it.”

Given the post-pandem ic landscape, it is time to “thin k

different” about both ti me and just doing it. Courts around

the country have overwh elming backlogs. Try ne w ap-

proaches that save time and m ay be more effective. I f there

were ever a time to throw away the ma ntra “But we have al-

ways done it that way!,” this is the time .

In the rst pa rt of this series, I will addre ss creative ways

to convince a skeptica l judge.

Convincing the Skeptical Judge:

Think Different

Change Judges

When faced with a skep tical judge, you must ask whet her

you are wasting your ti me, the judge’s time, and your client’s

time and money in t rying that case before that judge. You

have an ethical obl igation to inform the clie nt of your con-

cerns and the option s available, including  ling a motion for

change of judge.

When I star ted practicing, I ra rely considered this option

because I didn’t want to make t he judge “mad.” A fter 20

years on the bench , I realize how wrong I was.

I will admit th at when I received my rst change of judge

motion, I did wonder why they wante d to get rid of me.

Did I know any of the part ies? Did they think I was biased?

Soon, however, I stopped specu lating. I wanted out of any

case where there mig ht be a hint of bias on my part. In addi-

tion, I did not mind havi ng one less case to decide.

A change of judge can bene t attorneys and their clients

as well. There is a value to attor neys being able to predict,

and tell their cli ents, what a judge is likely to ru le given a

certain se t of facts. A good judge wi ll respect that.

For example, in divorce ca ses, I usually allocated the ta x

deductions for child ren in a certain manner. However, I

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PRACTICE POINTS