December 5, 2019

DEALING WITH DIFFICULT JUDGES

Dealing with difficult judges is part of being a lawyer. Your clients are looking to you to obtain a good result. That means not only knowing the law and the facts and being a good advocate, it also requires you to navigate through the legal system. Dealing effectively with the judge to whom you are assigned for trial is obviously critical.

Every trial lawyer has a war story about a nightmare experience with a difficult judge. After 30+ years of trying cases, I can offer a few tips which have worked consistently.

1. Research the Judge you are assigned to. Ask around in the Courthouse about your assignment. Find out what the reputation of the Judge is. There are a few online sites http://www.therobingroom.com/ and https://ballotpedia.org/The_Robing_Room, but I find it best to find out from your colleagues. Knowing what you are up against is very helpful.

2. Always remain respectful, deferential and professional. I have had trials where my adversary and the Judge yelled at each other throughout the trial like teenagers fighting in middle school. Every time I talk to the jury after a trial like that I am complimented on being professional. No lawyer does his client any favor by lowering the bar of professionalism.

3. Slow your speech pattern. The late Judge Hart in Queens would pepper counsel with questions during a trial. The late Judge Wexler would threaten a contempt finding during the trial if another question was asked. There is no rule that you need to answer with the same speed and at the same volume with which you are being questioned by the Court. Slowing your response, dropping the volume and providing a thoughtful retort, deflates the situation rather than escalating the problem.

4. Protect the record. Having a five-minute colloquy off the record where the Court lambasts you, your witnesses, and your client, may be disheartening but the Appellate Division will never read what the Judge said to you. You need to protect the record and be sure you record what you need for an appeal.

The late Judge Held in Brooklyn was famous for throwing his hands in the air and turning his chair around after he asked your witness, "Is that your answer?" The Appellate Division could only read the innocuous question, "Is that your answer?". Without a mention of the Court's reaction.  The cold record does nothing to help your appeal.

5. Follow the simple rules. If the Judge demands you stand for objection, don't waste a foul by not getting out of your chair. If the Judge likes to interrupt your witness to ask his or her own questions, prepare your witness to be deferential to the Court and answer the Judge's questions. If you know the Court has its own idiosyncrasies, work within the boundaries and seek the best result for your client. When the case is over, you will have your own war story. Don't let the ending be you lost the case.

For the original read of this excerpted blog, see the May 2018 issue of iNews on the www.psnylaw.com or read the transcript here.

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