Ethics: Fix It Fast or Hit It Head On

• Pages: 30-31
• Date: 01 July 2025
• Published date: 01 July 2025
• Author: Hon. Mark A. Drummond (Ret.)
• Subject Matter: Administrative & Public Law

Published i n Litigation News Volu me 50, Number 4 , Summer 2025. © 2 025 by the Americ an Bar Associa tion. Reprodu ced with permiss ion. All rights r eserved. Thi s information or any p ortion

thereof may not b e copied or dis seminated in a ny form or by any mea ns or stored in a n electroni c database or r etrieval syst em without the ex press writt en consent of th e American B ar Associa tion.

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

he smart TV in my hotel room boasted “500+”

channels. Only one worked. Titanic was on. The

ship was about to hit the iceberg.

In litigation, civil jury trials are the tip of the iceberg.

Ninety percent of an iceberg is underwater. Less than

1 percent of civil cases in state courts are decided by a jury.

So, 98+ percent of our work is with judges or perhaps former

judges who became arbitrators. What helps with judges?

Ethics = Persuasion

Over the past 45 years I have given talks on advocacy hun-

dreds of times. Many CLE providers want a dened hour of

ethics…at the end of the day. This is a mistake. Ethics should

not be an afterthought. It should not be relegated to the end of

the day when the audience is wondering, “When is he going to

stop talking?” I build “ethical moments” into the presentation.

Why? Ethics equals persuasion.

One CLE provider (which will remain nameless) did not trust

Ethics: Fix It Fast or Hit It Head On

that my “ethical moments” truly added up to an hour. They sent

a staff member. He sat in the front row. He brought a stopwatch.

I would turn to him and say, “Herb (not his real name), this is an

ethical moment.” He would hit the stopwatch. During the day-

long presentation, I would turn to him, “Herb, how’m I doin’?”

And he would announce the cumulative time. Fortunately, Herb

had a sense of humor. The audience loved the back and forth.

Candor to th e Court

I have done advocacy skills training since 1986, mainly

through the National Institute for Trial Advocacy (NITA).

Many times young attorneys ask for career advice from a

judge’s perspective.

I tell them that the shortest distance from the doors of their

law school to earning the respect of judges is a strict adherence

to the rule requiring candor to the court. I also add that if they

are weighing zealous representation versus candor, most disci-

plinary decisions I have read say candor wins.

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