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.”

“Recuse?”

“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.”

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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.

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H/T this by Jamison Koehler and various by SHG

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6 thoughts on “Trial Techniques: First, We Piss Off the Judge

  1. Many trial attorneys, like myself, stay up on the release of judicial opinions. It gives me great pleasure to have a new supporting opinion in my briefcase when the argument becomes disparate. Often, giving the new opinion to the judge and the other side disrupts opposing counsel’s thought process, momentarily elevates you intellectually with the judge, and in some cases, serves up a victory for your motion!

    1. Well, you sound quite special.

      Before I give any further response, please tell me why it is necessary to put “Attorney” in front of your name.

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