West Virginia Record

Tuesday, July 23, 2019

ALL THINGS JURY: Hey, don't forget the bench!

By Mark C. Blankenship | Aug 17, 2007


CHARLESTON -- From the moment a case is placed on a judge's docket, an attorney may begin to think about how the judge might affect the outcome of the case.

Though a judge attempts to make rulings that are impartial and unbiased, every human is influenced by previous experience, upbringing and education.

The great American legal system is open to much interpretation. Each law and statute carries many shades of gray. We rely on judges and their vast experience to determine a fair interpretation of the law in legal cases. Does this mean an attorney should simply ignore the bench, preparing a case without thought of the man or woman presiding over the legal proceedings?

Just as a jury is an important variable in a case, it may seem that the judge is simply "luck of the draw." However, by examining past rulings and decisions, a clearer portrait of a judge can be formed, allowing an attorney to tailor his or her presentation with the judge in mind. One way to examine a judge's perspective is through Venue and Verdict Analysis.

Through Venue and Verdict Analysis, more can be learned than just the basic make-up of a jury panel in a venue. Trends in similar cases that pertain to the case at hand are important to analyze. There may be patterns in the way certain judges rule on motions brought before the bench. Using the information gathered during Venue and Verdict Analysis, an attorney may be able to craft motions in a way that may be more informative and clear for the presiding judge.

Another way for an attorney to benefit from the experience of a judge is to conduct a mock bench trial. A mock bench trial is frequently a little more informal than a mock jury trial. Also, because an attorney does not need to be as concerned about explaining points of law as in a jury trial, the real questions and themes at issue can be more deeply explored.

During a mock bench trial, a panel of retired judges will listen to a presentation by the attorneys. The judges, who are selected with and prepared to adopt, a similar psychographic profile to the sitting judge, can make "rulings" on specific motions and provide opinions on those motions. A mock bench trial allows an attorney the opportunity to explore the deeper legal ramifications of his or her case.

The judges participating in a mock bench trial have a dual role. In addition to adopting the presiding judge's stance on legal issues, he or she also takes part in consulting on important issues in the case. One of their tasks is to provide feedback that will help the attorney bring balance to his or her presentation. The consulting judge assists in fine tuning the case law portion of an attorney's case.

In preparing for trial, an attorney has to use every resource available to ensure success for his or her client. By taking steps to do research on the habits of the bench, an attorney will help alleviate one of the stress points caused by unknowable elements of a trial.

Blankenship is a senior vice president with RMS Strategies, a communications and opinion research agency headquartered in Charleston. RMS Strategies has executed extensive public relations plans and litigation research projects for clients throughout the nation during the last 20 years. They can be contacted at 304.343.7655 or www.rmsstrategies.com.

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