Wisconsin Appeals Court Judge Michael Fitzpatrick, a trial judge for a decade, unsealed a bounty of tips to persuade both judges and juries in the opening plenary at the recent and well-attended 2019 Wisconsin Solo and Small Firm Conference, From compelling trial advocacy to brief writing, Judge Fitzpatrick let attendees peek inside the mind of a judge, which is what it takes. “Think like a judge,” he said.
But first on his list: credibility. “If you are asking the judge to take a leap of faith in your client’s direction, give them confidence you that they are taking a leap in the right direction,” said Judge Fitzpatrick. “Be a straight shooter on the facts and law.”
Remember, judges are generalists. “They are looking for help in your area of expertise,” he said. “Don’t assume the judge knows the substantive or procedural framework.”
In other words, do everything you can make the judge’s job easier. Be the reliable lawyer who cites the right precedents and face, head-on, the law that may be against you. Explain the burden of proof and persuasion. Know your facts. Be prepared.
“If a judge doesn’t think you are prepared, they will stop listening to you,” said Judge Fitzpatrick, who also discussed how lawyers can better persuade juries.
“Have an overarching theme for the jurors to see the case through,” he said. “We as attorneys have a construct to understand something. For instance, in a tort case, its duty, breach of duty, cause and damages. The jury doesn’t have that coming in.”
“If you can explain the case, not in legal terms necessarily, but in factual terms on why your client did something, the jury with have empathy for your client and understand the framework that you want to put the question in. That’s the first part of it.”
“The second part is you have to have the facts to fill in that framework. If you don’t have both, you are not going to do well with the jury,” said Judge Fitzpatrick, who discussed more than 20 topics, providing knowledge and insight only judges can give.
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