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American Bar Association - Defending Liberty, Pursuing Justice


Vol. 6, No. 3



The Difficult Judge

Fortunately for trial lawyers, the blatantly unfair judge is a rarity, and encounters of this unfortunate kind are thankfully few and far between. But judges are human and therefore subject to the same faults, prejudices, and idiosyncrasies as the rest of us. The following are a few suggestions from judges about how to deal with their sometimes-unfair brethren.

The good news is that you can often turn a less-than-pleasant situation around with artful diplomacy.

The Problem of Unfair Judges
All judges struggle to define their role in litigation. How involved should the judge be in the litigation before him? A court’s activism typically varies with its perception of a particular case. Why, then, do some judges become unfair advocates for a specific party or result?

Some judges have a tendency to reach a decision early on about the equities of the case and then consciously or unconsciously work to achieve that particular result.

Other judges face an overwhelming workload that does not allow them to prepare effectively for the onslaught of discovery disputes, contested motions, settlement conferences, and trials that they face. They may be in a hurry to bring the case to a conclusion so they can move on to the next one.

In other instances, judges choose the path least likely to lead to reversible error. That road is usually either one of delay or the broadening of discovery.

Whatever the reason for judicial activism, you must learn to deal with the situation.

Encountering Discovery Disputes
Judges frequently encounter attorneys who aggressively approach discovery. Such attorneys seek the broadest possible discovery from the other party, despite the fact that most of it could not possibly be of any relevance. No document or detail, no matter how inconsequential, goes unexamined.

On the other hand, there are attorneys who vigorously resist all discovery, no matter how relevant it is to the case at bar. Every reasonable discovery request is met with resolute objections. An unfair judge in discovery matters is a considerable problem to counsel due to the discretion that the judge wields. Additionally, most of those decisions are not subject to appellate review. If the judge allows the discovery abuse to continue, you have a very difficult situation on your hands.

Imagine, for example, that your client has been served with a document request asking for material that is clearly irrelevant, redundant, and voluminous. You file a motion to quash the request, and your request is summarily denied. By denying your motion, the trial judge has given unwarranted power to your adversary. The judge has allowed him to review records that could damage you in other litigation. And because this is a discovery order, it is likely not appealable—even if it were, the damage would already have been done.

Dealing with Pre-Trial Motions
The disposition of substantive motions is a very important role of the court prior to trial. In spite of your efforts to present motions that offer a clear statement of the facts and a thorough explanation of the law, some judges have already made up their minds. As a result, you encounter a solid wall of significant proportions.

The best solution in this situation may be described simply as “courteous persistence.” You cannot give up.

Issues Related to Settlement Conferences
An unfair judge can also prove very problematic in settlement matters. Say, for example, you are engaged in a settlement conference concerning a case with difficult and complex issues. It is obvious that the judge has not read any of the briefs or discovery, but he strongly suggests that your client’s case is weak and that sanctions could be imposed. Worried about this possibility, your client is unnecessarily anxious to settle, even on grossly unfavorable terms.

As a result, the judge has unfairly shifted the balance of power in the case, and your opponent has received a tremendous and undeserved advantage.

A Judge Advocating Against You
If you are the lawyer against whom the judge is ruling, your options are fairly limited and sometimes very unattractive. Here are a few guidelines.

Do Not Overreact
The judge’s advocacy may be an isolated event. If the judge has not acted this way previously in your case, or as far as you can determine in any other, his reaction may be an isolated one. With any luck, it will not recur. In other words, the first time judicial advocacy occurs, do not panic.

Do Not Argue
If the judge thinks the other side needs assistance, your argumentative or overbearing manner will give him even more reason to take an activist role. As tempting as it may be, don’t argue with the judge. He wields power that can seriously harm your client due to your misguided actions.

Be Prepared
When you do not have the law and facts at your fingertips, it is easier for a judge to take over the case. Being prepared is a good way to keep the activist judge in check.

Be Honest
It always pays to be honest. Tell the judge the impact of his actions—not that his adverse ruling will cause you to lose the case, but that it increases legal fees, contradicts the court’s own rules, or is contrary to controlling law. Do not argue the point—simply state your position.

Ask for a Continuance or Short Recess
To provide a breather from the proceedings, you might consider obtaining leave to file a brief on the point in question. When the judge starts fresh the next morning, the legal landscape may look entirely different to him. You can only hope so.

Always Make a Record
This can be difficult. Judicial advocacy may occur in conferences where the judge will not allow you to transcribe anything on the record.

Making a record might be futile anyway. Even with a record, interlocutory orders are not appealable until it is too late to be helpful. If appealed, they are subject to an abuse-of-discretion standard that rarely results in a reversal or remand.

Still, you must submit something in writing. Otherwise, there is no chance.

Consider Substitute Counsel
Perhaps you are the problem. If you have a personality conflict with the judge, it is only fair to the client for you to remove yourself. Have someone else in your firm take the lead role. In the worst-case scenario, you may have to refer the case to another firm.

Consider Filing a Motion for Recusal
This is, of course, the last resort. Such a motion should be used sparingly, and only in extreme circumstances. A recusal motion is argued to the judge himself, so he must therefore rule on his own prejudice.

If the judge is a strident activist, it is unlikely that he will perceive his conduct as prejudicial. On appeal, a motion for recusal is reviewed according to an abuse-of-discretion standard, so reversal is a remote possibility. And, if your motion is denied, the judge may become an even greater advocate for the other side. At a minimum, he will be aggravated with you.

In the end, there are no perfect answers for dealing with an activist judge. A judge’s role is such that some indignities and errors must be tolerated. The problem is ever-present because most judges were once trial lawyers; there is always the temptation for them to return to their role as an advocate.

A Judge Advocating for You
The shoe is on the other foot, and the judge is now bending over backwards to help you. You might first regard this phenomenon as manna from heaven. That is, until you consider what the appellate record is going to look like when the trial is over.

As a lawyer, how do you deal with a judge advocating unfairly in your favor? In point of fact, there is really not much you can do. But you should consider two issues.

First, you may want to determine why the judge is advocating for you. Is it because you are not fully prepared? Are you failing to present your case well? What you are experiencing may be more pity than zeal on the part of the judge. If that is the situation, learn from your mistakes. The next time around you may not have a judge who is so helpful.

The second scenario is a little more difficult. What if the judge is helping you so much that he is hurting you? He rules for you, but errors abound. He may reach the right result the wrong way. You may win now, but the chances of reversal on appeal are substantial. This is a very delicate problem.

What do you do? Diplomatically suggesting alternate grounds for the judge’s decision is one possibility. Another is filing a short brief supplementing the ruling. You can explain that you are filing it for the sake of completeness or some other amorphous purpose.

In the end, what you do in a particular situation depends on the actual decision and the court’s temperament.

Cecil C. Kuhne III is a litigator in the Dallas office of Fulbright & Jaworski L.L.P., where his practice deals primarily with commercial and product liability matters.


Convincing the Judge: Practical Advice for Litigators, (pp. 33-38, 2008), by Cecil C. Kuhne, 2008. ©2008 by the American Bar Association. Reproduced with permission. All rights reserved. This information or any or portion thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.

Convincing the Judge: Practical Advice for Litigators

Did you find this article helpful? Do you need more information regarding litigation? To provide some basic assistance in this area, we are pleased to introduce Convincing the Judge: Practical Advice for Litigators. This book should provide attorneys with some basic knowledge that will allow them to litigate better. It can be purchased at:

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