Denver Bar Association
May 2007
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What I have Learned from Judges: Ten Secret Lessons from a Trial Lawyer

by Justice Thyme

Attorneys often view judges as adversaries, but judges can be powerful teachers. True, sometimes the lessons from the "lofty" judges behind the bench can be painful or even humiliating. Sometimes, it’s almost more painful to watch another lawyer endure a tongue-lashing from the judge — deserved or not. Sometimes judges gently nudge lawyers along — sometimes.

However, many cases settle before trial, allowing some lawyers to see judges only in hearings; others only get to file briefs. After practicing law for several years and having a few real trial and motions experiences behind me, I have gathered some invaluable lessons directly from the judges.

  • Lesson 1. Do not overstate the judge’s previous written opinion in a brief or argument.

It might backfire, like it did when one lawyer cited a judge’s opinion for a legal proposition in a brief without analyzing the case. He used a parenthetical to state the broadest holding possible, probably taking liberties with the interpretation (or deluding himself after hours of research that this case was his ace-in-the-hole).

During the hearing, the judge barraged the attorney with pointed questions, exposing the attorney’s stretchy argument. The judge distinguished the case by essentially cross-examining the attorney, showing in a very clear way that the attorney had overstated his ruling. The bewildered and frustrated attorney never got to use his three-page typed outlined argument, though he was valiant and never conceded his point. (Sometimes, it can be good to concede a point or two.)

When questioning was over, the judge asked the opposing lawyer if she had any questions, to which she

replied, "No, Your Honor. I couldn’t have distinguished the case better myself. Please rule in favor of my client for the reasons you just raised." He did. Mostly.

  • Lesson 1(a). You won’t win everything all of the time — respect even your partial wins.

  • Lesson 1(b). Keep the sub-categories to a minimum — don’t overuse 1(a) and 1(b) numbering (and don’t overuse parentheticals or string-cites).

  • Lesson 2. See Lesson 1 and know when to shut up.

Recognize when the judge is on your side of the argument. It takes a certain amount of trust and confidence, but it can be effective. You also might avoid saying something stupid that could cause the judge to reconsider her ruling in your favor.

Also, don’t overuse (or ever use) bold lettering in briefs. In other words, don’t yell at the judge, either in person or in a brief. Assume he/she is smart enough to interpret the nuances of your writing and/or speaking. Oh yeah — limit or eliminate the use of "and/or" and "he/she."

  • Lesson 3. Trust your intuition — after tons and tons of your best legal research.

  • Lesson 4. Try not to comment on the witness testimony at trial by using colloquialisms like "fair enough," "I agree with that," or

"re--ally … is that soooo? …"

And don’t start every question to a witness with "And." Or "OK." Several judges take this very seriously. If you do comment on witness testimony, be prepared to draw a strong admonition.

  • Lesson 5. Develop a thick skin. Admonitions are sometimes necessary to define the outer limits of vigorous advocacy.

  • Lesson 6. Do not snicker in court, even if the judge makes a snide remark to opposing counsel that you find funny.

The judge might just call you on it, and you might feel like an unprofessional jackass. Even if the judge is sarcastic, resist the temptation to join in.

  • Lesson 7. Stop using form objections in written discovery responses.

Just answer the questions, unless there is a serious issue you need to preserve, like attorney-client privilege. Some law firms teach associates to put in every single objection possible under the rules (and a few more for good measure). The associate is afraid of missing one, so they all get thrown in. Then they say something ridiculous like "subject to the foregoing objections, and without waiving same, blah, blah, blah."

Before asserting an objection, have a good faith reason to do so. Have case law to back it up. Forgive yourself if you have ever ignored this lesson and change your ways.

  • Lesson 8. Be careful about body language in trial or depositions. Avoid nodding in agreement with your witnesses — you could be admonished for improper coaching, even if you are just getting into the conversational style of direct examination.

  • Lesson 9. Always have your calendar with you in any kind of hearing.

Some judges will schedule a hearing without your input, even if your calendar is downstairs in the clerk’s office. That happened to at least one lawyer this week.

  • Lesson 10. Mud slinging gets everybody dirty.

Sometimes clichés drive home a point.

Justice Thyme is a practicing trial lawyer and will present "What I Have Learned from Judges: Ten More Secret Lessons from a Trial Lawyer" in the next edition of The Docket.

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