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Litigation Tips: How to Irritate a Judge

Friday, July 09, 2004



How to Irritate a Judge

As you know, a judge's conscious and subconscious impressions of lawyers can significantly affect the outcome of a case, whether it's during a motion, jury trial, or court trial. Inevitably, judges rely on the lawyers they like, trust, and respect. Irritate your judge and you invite adverse rulings, make a poor impression on the jurors, and may damage your reputation among other judges.

Over the last few months I've been leading courses for judges around the state about judicial ethics and demeanor. Maintaining judicial objectivity and equanimity in the face of caseload pressures and courtroom irritants isn't easy. One of our judges likened his job to "being nibbled to death by ducks." At one point we ask our judges to list the ways attorneys and litigants can get on their last nerve. Here, in no particular order, are their most frequent complaints.
  • "With all due respect..." As soon as a judge hears this, she knows that her judgement, intelligence, or both, are about to be attacked.
  • Bickering. Judges hate lawyers who attack each other. Speak to the judge, not to your opponent. Don't interrupt. Don't stoop to the level of your obnoxious adversary.
  • Tardiness. Leave for court earlier than seems necessary. If you're going to be late, call as soon as you know.
  • Blaming the secretary. If you err, take responsibility for it.
  • Eye rolling. It's tempting to show disapproval with all manner of facial expressions and body language. It may feel good, but it makes you look like a twelve-year-old.
  • Threats. Don't even mention the Court of Appeal or "reversible error."
  • Ex parte communication. Avoid the temptation of speaking with the judge about the merits of your case without the other side present. Judges are uncomfortable with these communications and risk being disciplined.
  • Lack of focus. Burdened with crushing caseloads, judges hate having someone waste their time or the time of their jurors. Avoid repetition and trivial detail; don't call unnecessary witnesses, offer cumulative evidence, or exceed page limits.
  • Surprises. Warn the judge about tricky issues that may arise mid-trial. Alert her to witnesses with scheduling problems.
  • Quibbling. Sometimes it's worth the risk of incurring the judge's wrath by arguing with his rulings. Most of the time it isn't.
  • Being rude to the staff. Don't think that cozying up to the judge will negate your arrogance with her courtroom staff. The clerk, court reporter, and bailiff are the eyes and ears of the judge.
  • Dishonesty. Don't try to pull any fast ones. Long ago when I was a rookie public defender, the best lawyer in our office warned me that "for every way you can (mess) with a judge, he can do it to you ten different ways." It's an immutable principle. A judge who doubts your honesty and professionalism may not retaliate, but he'll never trust you again. And he will probably let his colleagues know his feelings.
  • Lack of preparation. You make the judge's job is much easier to do when you are prepared. Have your files organized. Know the legal and evidentiary issues. Prepare your witnesses. Be efficient. See the judge smile.
Tim Hallahan is director of the Advocacy Skills Program at Stanford Law School, a national CLE speaker, and co-founder of the Hecht Training Group, a litigation skills training firm. Contact him at thh47@pacbell.net.

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