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Judge Marshall's Fifteen Ways To Lose a Case

Judge Prentice H. Marshall was drawn to the law after reading Clarence Darrow's autobiography when Judge Marshall was 11 years old. A native of Oak Park, Illinois, and a graduate of the University of Illinois at Urbana-Champaign and the University of Illinois College of Law, Judge Marshall went on to become a partner at the law firm of what is now Jenner & Block, and to teach law at the University of Illinois College of Law. From 1973 to 1996, he served with great distinction as a U.S. District Judge for the Northern District of Illinois, presiding over many high-profile civil and criminal trials. In 1996, after 20 years as a trial lawyer and 25 years as a federal judge, Judge Marshall presented the following "Fifteen Ways To Lose a Case" at a seminar at the IIT-Chicago Kent College of Law:

  1. If you are a defendant, always educate your adversary by a motion to dismiss and thereafter a motion for summary judgment.
  2. Take no discovery and resist all discovery sought by your opponent. Present all discovery disputes to the trial judge, or:
    1. Over-do all discovery and be sure to overuse and misuse it at trial.
  3. Do not consider jury instructions in advance of trial. Pattern instructions are quite adequate, and the judge can just read them out of the book.
  4. During jury selection, if you are permitted to question the prospective jurors, try them: Cross-examine them and doubt their answers. If you are not permitted to question the prospective jurors, act aloof and disinterested when the judge questions them, and submit no supplemental questions.
  5. Do not prepare an opening statement -- either wing it or waive it.
  6. Show who is in charge during the trial. Be tough. Object frequently, request sidebars or request that the jury be sent out of the courtroom. Never make pretrial evidence motions in limine. After all, this is an adversary proceeding.
  7. Don't prepare your witnesses. All you want from them is the facts. And don't listen to their answers -- get on with it. And don't rehearse any experiment or demonstration you intend to present in the courtroom.
  8. Lead on direct but not on cross. Never waive cross and always argue with the witness on cross. And don't listen to the answers on cross.
  9. If you are going to offer a deposition, read it to the jury yourself.
  10. Always have at least three persons with you at counsel table and a couple of more in the audience pews. Consult with them frequently, asking the court, "May I have a few moments, Your Honor, to consult my colleagues?"
  11. Do not publish exhibits to the jury as they are offered. Hide them.
  12. Do not prepare your closing argument -- make it spontaneous and long.
  13. Do not wait while the jury is deliberating. Go back to the office or the bar.
  14. If it is a bench trial, pressure the judge to decide the case quickly, and if the judge decides the case from the bench, object and interrupt during the decision if it is going against you.
  15. When you lose, blame it on the client.



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