Write the Judge's Opinion: Start with the End in Mind

• Author: Mark A. Drummond
• Pages: 28-29

Published in Litigation News Volume 47, Number 2, Winter 2022. © 20 22 by the American Bar A ssociation. Repro duced with permissio n. All rights reser ved. This informati on or any portion the reof may not be copie d or disseminated in any

form or by any means or sto red in an electronic da tabase or retrieval sy stem without the ex press writt en consent of the Amer ican Bar Associatio n.

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

Let’s start at the very beginning,

a very good place to start.

When you read you begin with ABC.

When you sing you begin with Do, Re, Mi…

—Rodgers & Hammerstein,

The Sound of Music, “Do-Re-Mi”

While starting at the beginning is great advice for reading and

singing, it is terrible advice for trying cases. In court, begin-

ning with the end in mind is the way to go.

Work Backward s

What the trial court can giveth, the appellate court can taketh

away. I understand that you may practice exclusively in one

Write the Judge’s Opinion: Start with

the End in Mind

area of the law where the case law is settled. You know what

will hold up on appeal. You know the terminology the trial

judge will be looking at for both motions and jury instruc-

tions.

However, if you are just starting out in your practice or

venturing into uncharted legal territory, some legal research

in the area—including the search term “reversed”—is well

worth the effort. This advance work provides the framework

for your case.

With jury trials especially, you must know what jury

instructions are approved on appeal and what instructions

resulted in a “do over.” You must know the last words the

jury will hear from the judge before retiring to the jury room.

Great trial lawyers will try to weave those words from the

© Getty Image s

28 | LITIGATION SECTI ON

PRACTICE POINTS