Excerpts from Everything I Needed To Know I Learned After Law School

Getting along with judges

while your opponent is making his key points, keep your mouth shut and let it happen.

I remember concluding a hearing and seeing the judge stack up the files neatly on his bench. He put the exhibits on top of the files and his legal pad and pens on top of all. The clear message was that he had heard all he needed to know, and had already made his decision. I made four quick points in closing argument, taking less than one minute. My opponent chose this time to drone on and on, laboriously revisiting the trial testimony. It turns out that I prevailed, but that isn’t the point. Even if I was losing, the signal from the court was so clear that I would not have changed his mind by repeating what the witnesses and I had already said.

When I was first in practice, I appeared before a law and motion judge who read the files carefully before taking the bench. He would point to one attorney and say “You’re behind. Start talking.” If I was the one pointed at, I knew I had a real sales job to change his mind. That’s not the point of the story, however. Being a newbie, I didn’t know that meant that I should shut up if I was ahead. After the other attorney had finished, I couldn’t resist responding, which resulted in the judge turning to me and saying “You were ahead before, but you’ve raised another issue.” Pretty soon, I was the one behind the eight ball, and solely because I didn’t know when to keep my mouth shut.

How to get on the judge’s blacklist

• Arrive unprepared.
• In the middle of a hearing, make everybody wait while you dig through your files to find the exhibit you want to use to question the witness. If your evidence isn’t neatly organized, in the probable order you intend to use it, and pre-marked, don’t presume to call yourself a trial lawyer.
• Talk over or interrupt the judge. I guarantee that if you do this, the court reporter will take down what the judge is saying rather than what you are saying, and the record won’t reflect what you think it does. And besides, it’s just rude.
• Always run over your time estimate.
• Make meaningless objections to harmless evidence just to prove you know the rules.
• Be condescending. Yes, there will be judges who are not as bright as you are, or don’t know anything about the field of law they’ve been assigned to (later, of course; you don’t know anything yet, but you will). They know when you are condescending, and resent it.
• Fumble over your questions, making it clear that you don’t know what evidence you intend to elicit and haven’t thought through how you intend to get it in.
• Ask the same question repeatedly, hoping to get a different answer. You won’t and the judge will resent the waste of valuable court time.
• Fill your pleadings with irrelevant information and inflammatory accusations. This isn’t good lawyering; it wastes the judge’s time, and pretty soon she’ll stop reading what you write, assuming that it is your usual drivel.
• Try to make up for a weak case with histrionics.
• Argue with opposing counsel rather than addressing the judge.
• Wait until you get to court to start talking to your client or opposing counsel about the case, keeping everyone else waiting.
• Lie to her.
• Waste her time.
• Whine.

When it’s ok to ask to talk with the judge at the conclusion of a case and how to do it.

Of course, it is obvious that you can’t have ex parte conversations with a judge during the pendency of a case. However, there are times when it is appropriate to talk to the judge after the case is concluded and you are sure no additional issues on this case will be raised before this judge.

Early in my career, I was fortunate enough to appear before some stellar judges. If I felt a judge was kindly and not likely to throw me out of chambers, I would approach the judge a week or so after the conclusion of a case I had tried. I would ask the bailiff or clerk for a few minutes of the judge’s time and would make good use of it. I would ask him (and they were all him in those days) what I could change that would improve the effectiveness of my presentation and what (if anything) he thought I did well. I didn’t spend more than a few minutes with him and thanked him for his comments.

Of course, I did not discuss the facts of the case with the judge. That would be a breach of ethics. If you’re going to ask her advice, keep your questions limited to trial techniques, how you could have presented your evidence more effectively.

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