Working With Judges
At times, litigators need to persuade their clients, their adversaries, mediators, and juries. But one major audience they need to persuade is judges. These are the people who decide whether their arguments have legal merit, whether their claims can proceed, often whether their claims will succeed or the claims against their clients will be dismissed, and the ground rules for how the litigation will go.
Since judges are such an important part of commercial litigation, I thought I’d share some thoughts on working with judges.
Why should you read this post about working with judges?
You don’t meet a lot of people who wear robes at work.
You’re not sure if Judge Steve Harvey is an accurate reflection of what most judges are like.
You worked on the show Silicon Valley and have experience working with Mike Judge and want to compare him to his family members.
Image credit: https://en.wikipedia.org/wiki/Judge#/media/File:ICJ-CJI_hearing_1.jpg
Judges Expect Lawyers to Show Respect and Deference
Although ethics codes require lawyers to be professional and courteous to each other, lawyers are much more deferential to judges. Lawyers stand when judges enter a room and wait for permission to sit down. Lawyers never call a judge by his or her first name, but instead call the judge “Judge” or “Your Honor.” And while judges may (and do) interrupt lawyers while they speak, lawyers almost never interrupt judges. Even when judges are rude or short with a lawyer, lawyers remain respectful to judges. Every once in awhile, a lawyer is combative with a judge and it is clear to me when that happens that the lawyer is not succeeding in persuasion. When a lawyer says, “with all due respect” to a judge, it similarly suggests that the judge is not likely to agree with what the lawyer has to say.
Part of the reason lawyers are so deferential is because judges have the power to hold lawyers in contempt. And another part of this is because judges ultimately decide major issues in a case, so lawyers want to be on their good side.
Judges are also very busy, so they may interrupt lawyers who may want to spend time on matters that the judge already knows or is not interested in. In my experience, judges appreciate lawyers who are respectful with their time and get straight to the point. By not making speeches, and instead being concise, also makes it easier for the judge to dedicate their attention to the matters that mean the most. Judges also seem more likely to me to grant requests of lawyers who only make important requests instead of those who frequently ask the judge for lots of things of small importance.
Judges also generally have a lot of experience. They see a lot of cases and, in their careers before being a judge, worked on a lot of cases. As a result, they often have a general sense of the law for cases they see. They also know that any one given case before them is likely not the biggest or most important case in the world. (This is especially true for federal judges who sentence criminals to prison on the same days they hear commercial disputes). As a result, it has been my experience that judges appreciate humility from lawyers and take attorneys more seriously when they appear aware of the relative importance a judge places on a case. This is not to say that attorneys shouldn’t convey to a judge that their case is serious, but instead to say that attorneys shouldn’t try to make every case look like a life-or-death emergency unless it really is one.
Evidence, Precedent, and Pragmatism Are Useful
In television and movies, lawyers give grand speeches about the law and justice. I find that judges are less persuaded by speeches, and more by evidence. A judge may have an initial impression about a case when she first sees it. It may resemble cases she has seen before. And the best way to change her mind or confirm her opinion is by presenting actual evidence. This is why, in preparing a case, I ask my client for as many documents as I can to present as proof.
Precedent is also very important. Judges are usually very familiar with the applicable law, but no one person knows all of the law and the law frequently changes. Presenting the judge with detailed research on the law may inform her that she needs to rule in your favor. Even if the other side makes arguments on why it would be fair to rule against you, it is more persuasive to tell a judge that an appellate court has already decided that the law favors you.
Lastly, judges are usually very practical. In my experience, if a judge believes that one side is making unreasonable requests, the judge is unlikely to grant them. But if a lawyer proposes something that sounds like a compromise or that would promote efficiency, a judge is likely to appreciate the effort to make the lawsuit proceed more smoothly. So, for example, a judge may appreciate a proposal to conduct discovery in a way that minimizes costs but allows the parties to investigate all of the relevant issues, such as video depositions or by making scheduling accommodations.
Sometimes a Judge Is Not Sympathetic to Your Case
Judges are supposed to be impartial, but judges are also human beings. They may develop opinions about a case that inform how they speak or rule on minor issues. New cases may also remind them of old cases, and new lawyers may remind them of lawyers they already know. Sometimes lawyers really represent unsympathetic clients or causes. Regardless of how it happens, sometimes it becomes clear to a lawyer before a judge ultimately makes a decision on the merits that the judge does not look upon the lawyer’s side favorably.
In those situations, fighting with the judge is unlikely to make the judge like your side more. Instead, if evidence, respect, and legal research do not persuade her, a lawyer's best recourse may be to ensure that the transcripts and evidentiary record are complete enough to support a good appeal.