CBA Record January-February 2023

dramatic flourishes.” Another complained about lawyers “sniping with the other side” and presenting “overly dramatic arguments and crosses.” “We have seen it all before,” he added, “and it is a waste of our time.” Ignore pretrial and standing orders Some would put this one at the front of the list instead of at the end. Many judges have standing orders that set out trial requirements. Nearly all judges issue a specific final pretrial order for each trial. Those orders typically require certain pre trial materials (exhibit lists, witness lists, trial briefs, and so on), and say when they must be filed. The orders address every thing from the use of depositions at trial to the filing of joint stipulations. Judges don’t issue these orders for their health, nor do they issue them to make lawyers do needless paperwork. They issue them because they have concluded – often after long experience – that they prefer to run trials a particular way, and

these orders give them the tools to do it. Because pretrial orders matter, many also prescribe sanctions for their violation. (Mine, for example, demands trial briefs from each side and bars a party who fails to file one from putting on any evidence at trial.) It’s not hard to detect when a lawyer has ignored one of these orders. The lawyer files materials late, files them incorrectly, or fails to file them at all. The lawyer marks exhibits one way (with let ters) when the order says to mark them another (with numbers). Even if you don’t get sanctioned, violating a standing or final pretrial order suggests to the judge that you aren’t taking the trial seriously. That’s not the signal to send the person who will decide your case. Parting words This article has described some of the ways lawyers can botch a bench trial. It hasn’t described them all. As with any human endeavor, the list of potential errors is

endless, and no trial goes off without a hitch. Still, the overall lesson should be clear: approach a bench trial with the same care you would a jury trial. Prepare meticulously. Don’t back off, relax, cut corners, or decide to wing it because the factfinder isn’t a lay person but an experi enced professional. Be organized and tell a story, one with a beginning, a middle, and an end. Above all, take every bench trial seriously – because the judge will. And the judge will expect the same from you. A. Benjamin Goldgar is Chief Judge of the U.S. Bankruptcy Court for the Northern Dis trict of Illinois. He thanks the following for their contributions to this article: U.S. District Judges Edmond E. Chang, Thomas M. Durkin, and John J. Tharp, Jr. (N.D. Ill.); U.S. Magistrate Judges Sheila M. Finnegan and Geraldine Soat Brown (ret.) (N.D. Ill.); U.S. Bankruptcy Judges Eugene R. Wedoff (ret.) (N.D. Ill.) and Susan V. Kelley (ret.) (E.D. Wis.); and Cook County Associate Judges Michael F. Otto and Randye A. Kogan (ret.).

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