“Judges have to have the humility to recognize that they operate within a system of precedent, shaped by other judges equally striving to live up to the judicial oath.”
~ John Roberts
There are many excellent judges who are patient, unbiased, respectful of the lawyers and the litigants, and who will give everyone a fair opportunity to present their case. I had the privilege of working as a law clerk for one such judge. I was proud to have served him and I was in awe of his legal knowledge, his humility, and his sense of ethics and fairness. I also have the privilege of appearing as a lawyer before many other judges just like him. Having said that, if you spend enough time in the courtroom, you are bound to run into a difficult judge. After all, judges are human beings who have their own personal and professional pressures and flaws. This article examines the types of difficulties both lawyers and their clients face before certain judges and suggestions on how to best deal with them.
Research Your Judge
This tip especially directed towards new lawyers who have little to no experience before their local judges. If you overlook researching your judge’s personal and professional background, then you’re making a mistake that may negatively impact the outcome of your case.
Don’t be too proud to ask other lawyers about their professional experiences with a particular judge. Find out the judge’s likes and dislikes in the courtroom, their idiosyncrasies, and their pet-peeves. For example, some judges run their courtroom in a very relaxed manner such as allowing lawyers to sit down during hearings or allowing banter between the judge and the lawyers while some judges run their courtroom as formally and rigid as they did centuries ago (minus powdered wigs).
Learn about the judge’s professional background such as the type of law the judge practiced before taking the bench. For example, a judge who was a criminal prosecutor before becoming a judge may be less knowledgable about the laws and the procedures in a civil case. In this digital age, you likely can find prior decisions made by the judge or even articles or papers written by him or her as a lawyer or a judge. If you’re lucky, you may get an idea of how the judge will view your case before you enter the courtroom.
Personal experiences affect the facts that judges choose to see.
~ Sonia Sotomayor
Also, to the extent it is possible, try to find out the judge’s personal background such as whether they are married or divorced, do they have children or not, did they serve in the military, and the so on. Overall, the more you know about your judge, the greater your chances for understanding why the judge is ruling a particular way or being difficult about your case and to adapt your strategies and presentation. For example, a devoutly religious family court judge may take a very dim view of adultery while the judge who has been married several times may be indifferent.
Bring Your Client to Court
Although many courtroom appearances and hearings can take place without your client’s presence, there are three main reasons to bring your client to court. First, you put a human face to the case instead of it being just another number on the docket. Second, the client can see how things unfold and know that you are doing all that you can to advance the client’s cause. Third, the client needs to know what he or she is up against, whether it is good or bad, by seeing the court in action. If you get a bad ruling in the client’s absence, it is too easy for the client to assume that somehow you dropped the ball or that the other side has a better advocate than you. The more the client understands first-hand what is happening in the courtroom, the better the client is able to make important decisions about settlement or whether to take the case to trial.
Prepare Your Client for Court
Help your client understand that you have no control on which judge will be appointed to preside over any hearings or the trial. Depending on the type of case, there may be different judges during different phases of the case. In some cases, a single judge is assigned throughout the case. If you get a difficult judge assigned to the case, then you and your client have your work cut out for you both!
Make the client aware that they should control their body language and expressions during court. Explain to them that no matter how difficult things become in the courtroom, they are to remain silent, sit still, and wear a “poker face” without any expressions such as eye rolling, frowning, shaking their heads, and so on.
If the client has to speak to the judge, make sure they understand to stand up, address the judge as “sir” or “m’am,” and to directly answer the judge’s questions without argument. In other words, make sure that your clients understand that they aren’t in court to argue their case; that’s your job.
General Tips for Dealing With A Difficult Judge
Before we cover the various types of difficulties you may encounter, here are the two most important tips for dealing with a difficult judge:
Be calm, cool, and collect. I know this is easier said then done when you find that a difficult judge may be torpedoing any chance of success for you and your client. However, losing your composure all but guarantees that you have NO chance of salvaging your client’s case. Also, remember that you will likely deal with this judge again. If you lose your cool in the courtroom, and the judge loses whatever respect he or she may have for you, then you will have set a negative tone for all future appearances in this judge’s courtroom. In the end, you can’t control how a judge behaves; you can only control yourself by being professional and courteous.
Advocate but don’t argue. There is a fine line between being a persuasive advocate and being argumentative. Advocate by pointing out any contradictions the judge’s ruling may have with legal precedent and the practical impact the court’s ruling may have on your case and other similar cases. When you’ve made your points (and your record), quit before the judge turns angry or hostile. At all times ensure that your tone and body language remains respectful and professional.
Specific Tips for Dealing With Types of Difficult Judges
The Omniscent Judge
When you walk into the courtroom, this judge seems as if they somehow know all the details of the case you’ve been working on for months (or years) and every law applicable before you even open your mouth to speak. You find that you have little opportunity to present your case, it is unclear whether the judge has actually read whatever you’ve submitted to the court, and it seems as if the judge has predetermined the merits your client’s claims.
No matter what, you still have to present your case (and create a record for any potential appeal). If the judge seems determined to cut you off, politely ask for an opportunity to be heard. Rarely will a judge deny you this opportunity, so stay calm and present your case. In some scenarios, the judge may appear as if he or she isn’t listening. For example, the judge may start talking to a law clerk, reading their computer screen, or shuffling papers. In those situations, pause in silence. More often than not, the judge will stop whatever he or she is doing to see whether you are finished. When you have the judge’s attention again, immediately continue with your presentation.
The Indecisive Judge
Although being a judge is all about making decisions, some judges can’t seem to make up their minds. Also, this type of judge may take an opportunity to “kick-the-can” to another judge by holding off on a decision.
In this scenario, your best bet is to offer the judge a clear, uncomplicated solution to the problem. In other words, not only are you trying to persuade the judge why he or she should rule in your favor, but you must make the judge’s decision easy by offering a fair and a legally sound decision instead of making the judge flounder around trying to piece together an outcome. Focus on not only the law and the merits of your case but also on how your proposed ruling is uncomplicated, how it clears the judge’s docket, how it reduces court time or expense for the parties, and how it narrows the issues at or during trial.
The Bench-Weary Judge
Although this judge may have eagerly started their career to make a positive difference, years on the bench have jaded this judge. No matter how righteous your client’s cause may be or how dire the circumstances, this judge is bored, tired, and may appear to lack the enthusiasm to take action on your client’s behalf.
While your client may be looking for a dramatic, highly detailed legal display in the courtroom, that is not what this type of judge expects. This type of judge won’t be swayed by passionate appeals to justice, anything overly dramatic, and anything highly complicated. Don’t make any more work for this judge than is absolutely necessary. Don’t drop reams of paperwork and exhibits on this judge’s bench and don’t expect to take days or weeks to present your case. You need to make your case as simple as possible by narrowing your presentation to your best points. If you have several witnesses who would all basically testify to the same facts, then only present the best best one or two. Review your exhibits to narrow your focus on only the best and most relevant items. Lastly, refrain from being long-winded in your arguments to the judge or your examination of witnesses.
The Unenlightened Judge
This judge may display a surprising lack of understanding of the law and the legal procedure applicable to your case. What’s worse is that this judge may disregard clear legal precedent and instead “wing it” by applying legal principles that are totally inapplicable (Square peg? Meet round hole!). So, whether this judge is for you or against you, you know that there is a high chance of an appeal.
In this scenario, don’t “argue” with the judge about the law. Arguing with the judge is the equivalent of telling the judge you think he or she is an idiot. Instead, think of your presentation as a “discussion” about the law. Instead of trying to convince the judge that he or she is “wrong,” simply point out that other courts faced the same legal questions, how those courts found guidance from other courts that have dealt with similar issues, and how those courts resolved those issues. In the end, don’t be afraid to inform the judge that a much higher court or a legislative body has already made a decision that the judge must follow.
The Advocating Judge
Many judges were once trial lawyers and so they may find it hard to resist the temptation to take over your case. In some situations, it may even appear that the judge is helping out the other side by examining your witnesses or making the other side’s arguments for them.
In this scenario, the best thing you can do is be thoroughly prepared to present your case. If you fumble in your presentation, you risk the opportunity for the judge to jump in and take control of your presentation away from you. Also, don’t waste your time getting upset or angry when the judge appears to be advocating for the other side. Instead, pay close attention to the judge’s actions so you can try to determine exactly why the judge may be siding against you. Depending on the circumstances, you may have an opportunity to adjust your strategy or your presentation to overcome the judge’s stance against you by changing the court’s view of your case.
The Brutish Judge
This judge may be ill-tempered and ready to lash out at anyone in the courtroom. They may express their displeasure at everything to do with judging including having to make time to hear your client’s case. They may make lawyers look foolish before their clients by berating the attorneys in their courtroom. They’ve may have forgotten what it was like to be a lawyer and to balance schedules and clients and will place unreasonable time-constraints on you and your client.
To give a taste of just how rough things can get, here’s an example of former U.S. District Court Judge Samuel Kent out of Texas writing insulting, hostile, and over-top orders about the lawyers in two different cases:
Before proceeding further, the Court notes that this case involves two . . . lawyers, who have together delivered some of the most amateurish pleadings ever to cross the hallowed causeway into Galveston, an effort which leads the Court to surmise but one plausible explanation. Both attorneys have obviously entered into a secret pact – complete with hats, handshakes, and cryptic words—to draft their pleadings entirely in crayon on the back sides of gravy-stained paper place mats, in the hope that the Court would be so charmed by their child-like efforts that their utter dearth of legal authorities in their briefing would go unnoticed.
Bradshaw v. Unity Marine Corp
Manifestly, any person with even a correspondence-course level understanding of federal practice and procedure would recognize that Defendant’s Motion is patently insipid, ludicrous and utterly and unequivocally without any merit whatsoever…. Defendant’s obnoxiously ancient, boilerplate, inane Motion is emphatically DENIED. Moreover, Defendant’s present counsel-of-record is determined to be disqualified for cause from this action for submitting this asinine tripe.
Labor Force, Inc. v. Jacintoport Corp. et al.
As a side note, Judge Kent was later accused of sexually assaulting two female staffers and pled guilty to one count of obstruction of justice. He was sentenced to almost three years in prison.
This type of judge will truly test your ability to remain composed in the courtroom. You must avoid butting heads with this judge (and any judge for that matter). If you try to go toe-to-toe with this judge, then all the judge’s attention will be on the disagreement with you and not on your client’s claims. Do all that you can to stay on track by remaining calm, courteous, and professional. Don’t raise your voice and watch your body language. You can’t afford to appear angry or upset. If at all possible, ask for a short recess to give everyone time to simmer down.
If the judge is on a tirade, say nothing and wait until the judge runs out of steam before you continue your presentation. Also, begin to talk softly and slowly. By doing so you may shift the judge’s attention back to the content of your presentation. Lastly, try repeating back to the judge what he or she just shouted about but in your own, neutral, words. Showing the judge that you’ve heard him or her might help reduce the tension. Also, if you can get past your gut reaction to being yelled at and listen to the judge is saying, you may pick up on important information that can diffuse the situation.
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