The full article will be available to read soon in the forthcoming 43:2 issue of the American Journal of Trial Advocacy.
We begin this Article with the fundamental premise that persuading a judge is different than persuading a jury, and is different from persuading a group of judges. Advocacy is the art of persuasion. Law schools and other organizations teach skills associated with trial advocacy, with a presumption that the decision-maker is a jury. Law schools teach appellate advocacy, with a focus on arguing fine legal points in a formal setting within time limits to a panel of judges. Very little time or attention is devoted, however, to teaching the skills involved with advocacy to a district judge—judicial advocacy, if you will. The skills taught in trial advocacy and appellate advocacy classes have limited application to advocating to a district court judge, particularly when that judge is serving in a fact-finding capacity. What is effective with a jury is not always effective with a judge, and indeed may be quite ineffective. What could be very persuasive when arguing to a judge, on the other hand, could constitute impermissible argument before a jury. In practice, though, most attorneys argue to judges as they would to juries. And they do so unpersuasively in many instances.
The ability to effectively advocate to a district judge has never been more important. Jury trials are becoming more and more rare. Less than 1% of all federal civil cases proceed to jury trial and less than 5% of criminal cases do so. The number of federal bench trials, however, are also decreasing. The number of federal civil cases resolved by bench trials in the last decade have decreased from 1.05% to .26%, and the number of criminal bench trials has decreased from .46% to .27% of cases.
Although the number of both jury and bench trials, then, are decreasing, cases are increasingly decided by judges ruling on a wide variety of motions. Judges dispose of criminal cases when ruling on motions to suppress evidence and to dismiss indictments, while in civil cases judges grant dispositive motions to dismiss or for summary judgment. Importantly, attorneys also frequently advocate to judges in connection with a wide variety of non-dispositive motions and other proceedings. Judges often hold hearings on motions, while in other instances rule on the pleadings. Some hearings involve the presentation of evidence and judicial fact-finding, such as with motions to suppress evidence or sentencing hearings in criminal cases. Other hearings may involve purely legal arguments. The reality, then, is that attorneys spend much more time advocating to judges than they ever do advocating to jurors or appellate judges. Yet, there has been a glaring lack of attention devoted to effective judicial advocacy.
We endeavor here to at least partially fill the gaping hole in the discussion of judicial advocacy. In the first part of this Article we set the stage for discussing advocacy skills when arguing to judges by examining the context of judicial advocacy. We begin by identifying and describing the circumstances when attorneys advocate to judges. Then we discuss the applicability of the rules of evidence when judges are fact-finders, before turning to the fundamental similarities and differences between judges and juries as decision-makers. Finally, we examine the theories of classical advocacy. In the second part of this Article, we explore and discuss the skills attorneys should use when advocating to judges. We divide this part into two sections. The first section focuses on advocacy to district judges in hearings and the second section focuses on advocacy to judges in bench trials, recognizing that there is some overlap in the two sections. In our conclusion we synthesize our analysis and ultimately provide ten practice pointers for attorneys who want to be effective and persuasive advocates when arguing to judges.