Trial Techniques: First, We Piss Off the Judge

One day before a motions hearing, I sit my client down for a chat about strategy.

“OK, so, tomorrow, I’m going to make this motion, but the judge probably won’t like it. After listening to each side, he’ll probably rule in favor of the prosecutors,” I begin.

“So, what do we do then,” client inquires.

“Well, that’s when I’ll make the same motion again. Except, I’ll act miffed.”

“You’ll act miffed?”

“Yes,” I respond. “I’ll get a little red in the face and ask for reconsideration, restating everything that I already stated.”

“OK, then what will the judge do?”

“Well, he’ll rule against us again, but that’s when the fun starts.”

“Oh?” stammers the client.

“Yep, then I’ll get pissed. I’ll make the motion again. The judge will try to say something, but I’ll talk over him, stating why his conclusion is wrong and why we should win.”

“Will that work?”

“Well, the judge will be pissed at this point, but I’ll keep hammering away at him. Expect me to raise my voice significantly, maybe even screaming, yelling, smacking the table, and tossing paperwork and pens. I might even accuse the judge of ruling against us because of your ethnic background. Then, I’ll top it off by demanding that he recuse himself, simultaneously removing my jacket and tie for dramatic effect.”


“Yeah, where he quits as the judge and another judge is appointed to your case.”

“Will that happen?”

“No, probably not, mainly because it is me that’s kicking up the stink, not him.”

“So, what is all of this going to do for me?” he finally inquires.

“It will show you that I’m working hard and earning my fee.”


I’ve never understood the purpose of arguing like this with the judge. I’m not talking about tacit disagreement while ensuring that all facts and arguments are reasonably articulated for the appellate record. I’m talking about all-out courtroom battles with the judge that result in nothing but ill-will and the judge firmly entrenching himself into his decisions.

Some lawyers see such skirmishes as points of pride, notching a record of each into the leather of their briefcase. Later, they brag about their brush with contempt of court.

I never understood this for one reason, summarized in a question. What does this do for the client?

Sometimes, we take chances in an effort to score a big win for a client. These are usually calculated. In doing so, we weigh the pros, cons, and possible outcomes in order to derive the best course of action. I get that.

However, when it comes to making a motion, or stating an objection, I’ve always followed this format.

A. Object/Make Motion

B. State Reason

C. Listen to other side

D. Clarify reason in light of what other side said.

E. Go back and forth until judge directs a halt.

F. Listen to ruling from judge.

G1: If the ruling is in your favor. SHUT UP.

G2: If the ruling is not in your favor, ask for reconsideration based on clearly articulated factors and state any points that seem necessary to complete and clarify the appellate record. Done and done.

At this point, I view any further discussion as unnecessary and more likely to create ill-will toward my client. Therefore, I stop. Some want to push further than G2, turning the disagreement with the opposing side into an argument with the judge. I fail to see where this could, in any stretch, be calculated to bring a favorable result to the client. All it creates is bad blood in the courtroom, and the lawyer loses credibility with those who matter the most. Though, I’m sure those who use this technique have a reason for doing so.

Maybe it is because the attorney is passionate. You know how I feel about this. Let me summarize. If you’re passionate about your case and/or client, you ain’t capable of being an effective lawyer for them.

Maybe it is because the lawyer thinks this is the right thing to do because of what they’ve seen on TV or heard in exaggerated war stories told at the bar. This person desperately needs a mentor.

Maybe it is because the lawyer wants to show that they are working hard for the fee they charged. In this case, I feel sorry for the client. It’s going to be a bumpy ride.


H/T this by Jamison Koehler and various by SHG


Azimuth Check: Giving You the Willies When You’re Well-Off

It’s October–Halloween time. Time to give you the willies.

“I just gave the copy a wet Willy.”Compass

Let’s just get straight to the story, via the Mankato Free Press.

Armed with two freshly licked fingers, a former Kiester man home on leave from the Air Force thought it would be funny to give the officer the Willies. Riley Louis Swearingen, 24, of Goldsboro, N.C., was getting on the “drunk bus” after the downtown bars closed early Saturday morning when he allegedly licked a finger on each hand and stuck them into the ears of a police sergeant.

The officer was not amused and Swearingen was immediately arrested, said Cmdr. Jeremy Clifton of the Mankato Department of Public Safety. The sergeant was on the bus talking to the driver when Swearingen boarded at about 2:20 a.m. After feeling two fingers “wet with saliva being pushed into his right and left ear canals, which caused pressure and discomfort,” the officer turned around to see Swearingen walking away.

Swearingen then sat down with a group of friends and said, “I just gave the cop a wet Willy” the officer reported.


I’ll start with my most trivial concern.

Why is “Willy” capitalized in this article? Why not also the word “wet?” These things are important to me.

Next concern is with the charging. Nobody would ever charge a drunk idiot, with no other intent than trying to be funny, with a felony, right? This is clearly, at worst, a case of first degree dipshittery, punishable by a bit of pepper spray and then we call it a day. (Normally, I wouldn’t condone random use of pepper spray by law enforcement as summary punishment, but the more primitive side of me thinks it to be closer to quit pro quo than a permanent criminal record.)

No matter, I’m sure they aren’t going to charge the kid with a felony. That would be really harsh considering his intent and the fact that he was, after all, getting on the “drunk bus” and his later BAC of .18.

Swearingen was still in jail Monday afternoon awaiting a court appearance after prosecutors charged him with a felony for assaulting a police officer with bodily fluids. That is the worst charge that was requested by the officer, who didn’t go through any testing to see if he might have been infected by the saliva that was left in his ears as a result of the double wet Willy. Lesser charges of fifth-degree assault and disruptive intoxication were also filed by the Blue Earth County attorney’s office.

Um. OK. I see. Well, as soon as he sobered, I’m sure they released him to face whatever consequences on another day. After all, no reasonable public policy is served by keeping him in jail.

When Swearingen appeared before District Court Judge Kurt Johnson at about 4 p.m. Monday, he explained what happened. He said he had flown to Minnesota from North Carolina because he was supposed to be in a friend’s wedding Saturday night.

OK, wrong again. In case that snippet didn’t make it clear, he was held from 2AM-ish on Saturday through to late afternoon on Monday, more than two days. He also missed his buddy’s wedding, which was his purpose for taking leave.

But, I’m sure they are going to see the totality of what happened and realize that a few days in jail (with a probable hangover, no less), missing his buddy’s wedding, and all the second and third order effects will be enough to move him along after having clearly learned a valuable lesson.

“I thought it would be incredibly funny to give a police officer a wet Willy, to which I was sorely mistaken,” Swearingen explained. “I’m incredibly sorry for what I did. I never thought I would be going to jail for the weekend.”

Johnson offered to dismiss the assault charges if Swearingen would agree to plead guilty to the misdemeanor charge of disruptive intoxication. That would allow the airman to get out of jail and return to his duties in North Carolina as an air traffic controller at Seymour Johnson Air Force Base in Goldsboro.

Swearingen quickly agreed to the deal. He was sentenced to the three days he spent in jail and was told to pay $77 in court costs.


I’m wrong again.

Let me explain my biggest problem with this.

This statement by Judge Johnson has a lot of problems “That would allow the airman to get out of jail and return to his duties in North Carolina as an air traffic controller at Seymour Johnson Air Force Base in Goldsboro.

You see, the is not just going to get to go back to his duties. Because of what happened, he is likely facing, at a minimum, adverse administrative actions by his chain of command due to the fact that they tend to not smile upon acts of first degree dipshittery. In fact, the Air Force tends to take a much harsher stance against such things, especially among air traffic controllers who they expect to be individuals that exercise good judgment at all times. Now that he has a conviction, his security clearance must be re-assessed, and he may not be considered fit to serve in his current specialty, even if he is lucky enough to keep a clearance.

In short, the Air Force doesn’t really like keeping kids who have convictions, even misdemeanor ones.

Dear Judge Johnson, this isn’t the end for this kid. It is just the beginning. To think that he gets to just go back to his Air Force duties is naive, at best. Potentially, you just sentenced this kid to losing his job in the Air Force, an adverse discharge, and a lifetime of stigma with a less than honorable discharge and your oh-so-lienient conviction.

Does he deserve all of that? I don’t think so. I think a bit of pepper spray, some pain and discomfort, and a hangover at a wedding the following day would’ve been just enough.

Are You Well-Off?

Apparently, my definition of “well-off” isn’t the same as many of my potential clients.

As loyal readers of this blawg (all 23 of you) know, I keep track of trends involving potential clients. Many are amusing.

Here’s one that appeared in just the last year or so.

A potential client calls the office and states that they want to clean up part of their military record. During the conversation, they state something akin to “Now that I’m well-off, I want to take care of this thing.”

So, when I hear “well-off,” I picture someone who lives in a stable household with reliable transportation, steady income, means to provide all the “needs,” and the ability to afford most “wants.” I tend not to think of it in a metaphysical sense that might apply to a person whose content heart feels “well-off” by living in simple joy with their family as squatters in a tent in the middle of an abandoned amusement park in Jasper, Arkansas.

I think my view of “well-off,” as a more materialistic quantification, is the popular and accepted view.

A few months ago, I had one of these “well-off” folks call the office, but his case wasn’t particularly complex. I felt I could handle it in a fairly short amount of time. So, I quoted $500 as a fee. My experience is that this is a fairly low legal fee, relative to most. However, it was fair and would’ve compensated me for my time.

The response was, generally, as follows.

“Whoa, well, I’m going to need a few months to gather those funds. Can I call you back after I get my tax refund in February?”

Sure. You do that.

So, what should you learn from this?

Never hold your breath for a call back from well-off potential clients.