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Voir Dire Interview

How to Win Cases and Influence People (on the Bench)

Voir Dire, Volume 1, Number 3, Winter 1996

by “She who must Be Obeyed”

The Judge aimed a look of distaste in my direction and then turned to speak to the witness. The Judge was, as always, reluctant to exercise his right to silence.
- John Mortimer, Rumpole and the Right to Silence
1

Clearly, some judges, like some lawyers, talk too much. However, having been invited to author this issue’s “View from the Bench,” as a follow-up-to “What Lawyers Want from Judge” (Voir Dire, Spring 1995), I intend to state my practice tips. Certain practices of lawyers impact a judge’s ability to “hear” or focus on counsel’s arguments and affect the overall mood of the Court. Following these tips will help an attorney avoid certain pitfalls ad cultivate judicial respect and affection.

(1) Aim to Assist the Court. Your goal should be to help the Court understand your position. AT the outset of your argument, begin with a succinct statement of the relief you are seeking and the basis for entitlement to the relief. Remember, a trial court judge is a generalist, not a specialist. Share your expertise about the area of law in which you practice and disclose the relevant facts the Court may have missed.

(2) Adopt an Appropriate Attitude. Your attitude and demeanor should be professional, courteous and pleasant, as you seek to educate the Court. Professionalism includes appropriate dress and manners. A lawyer who evinces a pleasant, helpful demeanor helps set the mood for an enlightening dialogue with the Court. Remember the adage: “Argue to the Court, not with the Court.” A pragmatic approach to problem solving is appreciated. Retain and use your sense of humor. Keep an open mind. Consider that doing the right thing and dealing with opposing counsel with civility, generally serves your client best and always impresses the judge. Judges abhor being put in the position of acting like a kindergarten teacher, forced to separate battling kids on the playground. Mean-spiritedness is anathema in court.

(3) Operate with Condor and Honesty. A lawyer’s reputation for integrity is the most precious quality he/she possesses. Playing “hide the ball” with evidence or misrepresenting facts and case law to a judge, results in the destruction of one’s reputation and may well anger the Court.

We’ve got a few rules, old sweetheart. We don’t deceive Courts, not on purpose.
- John Mortimer, Rumpole and the Alternative Society.

Judges may not always remember an attorney for his or her eloquence, but they will always remember an attorney who has misrepresented facts. Once a lawyer’s reputation with the judiciary is made, it is difficult to remake.

Candor includes acknowledging the weaknesses in your case and your own need for direction or assistance.

(4) Express Yourself Clearly and Succinctly. Get to the point. The art of thinking and speaking clearly, succinctly, and at a reasonable speed is important to a judge and her staff. Consider the court reporter and the records, and avoid “taking over” a witness. If an attorney masters this adds on animated delivery style, that attorney will unfailingly impress the bench.

A state trial court judge has, at any given time, between 700 and 850 cases, so an attorney who makes his or her point with brevity and clarity will earn the Judge’s attention and appreciation.

“Just the facts, Mr. Rumpole. Just give me the plain facts,” snapped the old spoilsport.
- John Mortimer, Rumpole and the Age for Retirement

Learn to phrase your questions and effectively articulate your arguments with plain speech, devoid of legalese. If you cannot express yourself in a way that a judge can grasp, it is unlikely you will persuade a jury.

At last I had irritated Mr. Justice Vosper beyond endurance. “Mr. Rumpole!” he thundered. “Are you going to conduct this entire case in what the jury may well find to be a foreign language?”
- John Mortimer, Rumpole and the Rotten Apple

It is important to note that when a judge limits your time, she’s not urging you to speak faster. (This only increases a court reporter’s stress level and propensity to carpal tunnel syndrome.) The judge is really saying, “Get to the point.” Objections should also be voiced concisely. An objection that is lengthy and argumentative irritates judges and juries.

Lawyers who fail to make a clear record regarding exhibits, who interrupt or talk over witnesses, or speak to softly, irritate the judge.

(5) Listen to the Court. When arguing a motion or doing a trial, it is important to listen to the judge and take your cues from the judge’s questions and rulings. During motion hearings, a mere recital of what you have written in our memorandum is not helpful. And, at trial, while you may want to repeat objections to make a record, make it clear you understood the Court’s prior rulings. Avoid giving the appearance that you are ignoring the Court.

“Mr. Rumpole!” I had now lit the blue touch paper and Mr. Justice Graves went off like a rocket. “This is quite intolerable! I stopped you when you pursued this line before and you have totally disregarded my ruling. You persist in attempting to involve this most distinguished gentleman in the terrible crime of which your client stands accused. That is not the way in which we ‘play the game’ in these courts, as you should know perfectly well.
- John Mortimer, Rumpole on Trial.

(6) Be Prepared. Careful preparation is fundamental to the effective practice of law. Preparation, for motion hearing, should include consideration of possible questions from the Court. Adequate preparation insures that you won’t be tied to your notes and can meaningfully respond to questions from the Court. Your witnesses also need to be prepared for a courtroom experience. They are entitled to know what a judge will expect of them. Advise your witnesses to avoid hearsay, and rambling in non-responsive answers. Remind your witnesses to speak distinctly and audibly. The misery created by a lack of preparation is incalculable.

So my client’s evidence wound on, accompanied by toothache and an angry judge, and I felt that I had finally fallen out of love with the art of advocacy.
- John Mortimer, Rumpole and the Younger Generation

While judges recognize that litigators have to gains skill and experience over time, it is essential that lawyers, coming to court in the service of a client, avail themselves of every training opportunity available. The American Inns of Court program facilitates this educational opportunity. This program, which brings together lawyers (with varying levels of experience) and judges in social and educational settings, promotes civility and helps lawyers to prepare to deal with a variety of trail and motions issues, through demonstrations and discussions.

Be prepared, when calling a judge on a discovery dispute, to arrange for the judge to have the file, and clearly identify the discovery issue, in the context of the case facts.

(7) Know Your Judge. Ascertain what your judge’s background, practices and preferences are. A judge who reads everything before oral arguments assumes you know this, and does not want counsel to repeat everything that she has already read in the pleadings.

Recently a lawyer painstakingly explained the holding in a key case on expert testimony to a disgusted judge. Knowledge of the judge’s background, and a closer reading of the case, would have provided the lawyer with the relevant information that this judge had tried the referenced cases and authored several articles on expert testimony and did not need or appreciate the lawyer’s simplistic, condescending approach.

(8) Remember Judges are Human. Judges are not perfect. However, the majority of judges want to do the right thing and work diligently to achieve that end.

For some reason the then Lord Chancellor took it into his head to make Guthrie (Featherstone), who suffered from a total inability to make up his mind about anything, a judge. Clad in scarlet and ermine, Mr. Justice Featherstone presided over his cases in a ferment of doubt, desperately anxious to do the right thing, fearful to the Court of Appeal, and frequently tempted to make the most reckless pronouncements which got him into trouble with the newspapers. Despite all these glaring character defects, there was something quite decent about old Guthrie. He often tried, in his nervous and confused fashion, to do justice . . .
- John Mortimer, Rumpole on Trial

Remember, judges were attorneys once. Each judge is an individual with a unique personality. Treat judges like you expect them to treat you. A judge responds positively to a good-natured smile, and a kind work. An attitude reflective of respect and consideration (including arrival on time) will endear you to the Court.

“Even judges are human.” Guthrie spoke as though letting us into a closely guarded secret.
- John Mortimer, Rumpole on Trial

Judges can generally tell if you like and respect them. Judges, being human, tend to respect or like people who like them. Your feelings about members of the Bench, whether expressed, demonstrated, or suggested by your attitude, are not likely to be lost in the judge.

If you communicate contempt to a judge, it’s difficult for the court to ignore this “input.”

As we bowed to each other I gave my opponent a whispered character sketch. “This judge,” I told her, “is an absolute four-letter man. He’s humorless, tedious, unimaginative and unjust. IN a word, he’s a judicial pain in the behind.”

Having bowed, Graves was still standing and made a pronouncement, in my direction.

“Mr. Rumpole, it may come as a surprise to you to know that the acoustics in this Court are absolutely perfect and my hearing is exceptionally keen. I can hear every work that is spoke on Counsel’s benches.”

- John Mortimer, Rumpole and the Reform of Joby Jenson

Judges come on the Bench with varying degrees of experience. Understanding a judge’s experience or inexperience and tailoring your arguments “to fit” the judge, is wise.

Just as lawyers seek humane treatment from the Bench, judges appreciate this. The majority of judges have huge caseloads, immense responsibilities, and little support. Additionally, judges have to deal with the occasional difficult attorney, i.e., “jerk litigators,”2 who treat one another with a lack of civility, or unskilled lawyers, who have literally construed the phrase “practicing the law.”

“You never wanted to be a judge, did you, Rumpole?”

“Judging people? Condemning them? No, that’s not my line, exactly. Anyway, judge are meant to keep quiet in court.”

“And they’re much more restricted, aren’t they?” It may have sounded an innocent questions on a matter of general interest, but her vice was full of menace.

“Restricted” I repeated, playing for time.

“Stuck in Court all day, in the public eye and on their best behavior. They have far less scope than you to indulge in other activities . . . .”
- John Mortimer, Rumpole on Trial

(9) Avoid Abuse of the Court and Court Resources. Make a good faith effort to resolve disputes, without the court’s involvement, when possible. Have your exhibits pre-marked, to avoid wasting trail time. Get pleadings in on time. Avoid requesting unnecessary trail continuances, and abide by the rule on page limitations, when filing memoranda.

(10) Consider Your Audience. When you choose your words and your deliver style, it is wise to remember to whom you’re directing your words.

“Mr. Rumpole,” the Judge said. ‘”Think perhaps you need reminding. That jury-box is empty.”

I looked at it. His Lordship was perfectly right. The twelve puzzled and honest citizens, picked off the street at random, were conspicuous by the absence. This was one of the occasions, strange to Rumpole, of a trial by Judge alone . . .. .

“It is therefore, Mr. Rumpole, not an occasion for emotional appeals.” The Judge continued his lesson. “Perhaps it would be more useful if you gave me some relevant dates and comparison of the two wills.”
- John Mortimer

Most of my favorite people (including most of my family) are lawyers, so I will always try to treat counsel with respect and understanding. These tips may help you with my colleagues – who aren’t all as “lawyer-friendly” as I am.

Footnotes

1. Horace Rumpole, as millions know from reading John Mortimer’s books or watching the PBS television series, is a fictional barrister-at-law. Rumpole’s life work, defending criminals, is rendered more difficult due to the interference of obtuse, churlish judges. Lawyers empathize with Rumpole’s ruminations on the judiciary.

2. “Jerk litigators” is a term used in What Lawyers Want from Judges by Leonard Hand, Voir Dire, vol. 1, No. 1 Spring 1995.