What Judges Like
The ultimate lesson in dealing with judges is simply this: Before arguing a case in court or putting the first words to paper in a motion or brief, you must set aside your adversarial role and try to think like a judge. But not just any judge—you must think like the judge before you. You have to somehow impose yourself into the mind of the particular person who will hear your case. In the end, that process is not only a revealing exercise, but a very humbling one.
The judicial system depends on the good-faith cooperation of the attorneys to comply with the rules and move cases along. When matters are manipulated for delay, harassment, or unfair advantage, the system naturally breaks down. Judges will appreciate your efforts to make their jobs easier, and your clients will benefit handsomely as a result.
Trading Places With the Court
In effect, you must change places with the court. Judges initially know nothing of the controversy that brings you to them. They are simply being called upon to make a decision.
If the positions were reversed and you sat where they do, think of what it is you would want to know about the case:
- In what order would you want the story told?
- How would you want the case unraveled?
- What would facilitate your approach to the true solution?
As the advocate, you must pose these and many other difficult questions to yourself in order to make the case clear to the judge.
If you force the court to prepare its own elaborate flowchart simply to grasp the basic issues of the case, you have not fulfilled your duty to communicate effectively. The judge should not have to work that hard in order to understand what the lawyers are trying to tell him.
Approaching the Court
What is the proper attitude, frame of mind, and tone of communication for a lawyer when arguing before the court? For some lawyers, arguing a case is a frightful experience that tends to humble, mortify, and even confuse. The very setting is intimidating to some, and for many others, it is not a particularly congenial setting for communicating ideas.
The lawyer should begin with a mindset that concentrates on primary issues without being distracted by the minutiae of the case or the personalities involved. By whatever means, the lawyer’s approach must seek to communicate. This requires concentrating on your case, the opponent’s argument, and questions posed by the court. The approach most likely to facilitate your position is one of mutual respect and professional civility.
Knowing the Judge
To think like a judge, you must first know the judge. The better you know the personality and the propensities of the judge before you, the more smooth your dealings with the court will be. The following are several areas you should consider.
In a word, you must uncover as much personal background about the judge as you possibly can. Because judges are public figures, basic information about them is usually easily available. This might include where the judge grew up, where he went to college and law school, his religious and political affiliations, and all of the other factors that go into a psychological profile.
But these are the obvious ones. You might also want to find out about the judge’s personality, his financial and investment interests, social acquaintances, military service, and previous occupations.
You will also want to know what kinds of clients the judge represented while he was in private practice, and which cases he won and lost.
But be very careful with this information. Sometimes the stereotypes do not hold true. If you delve deeper, you may discover that the judicial philosophy belies the background.
This judicial profile should also contain appropriate opinions of the court, reflecting opinions each judge rendered as the author and, to a lesser extent, as a panel member. If, for example, you have a res judicata issue before the court, it is not enough to know in general about the court’s res judicata cases. You must know how your particular judge has voted in those cases.
It is also important to know about the judge’s values concerning the legal process. Each of us has such values and prejudices, and they obviously have an impact on how we act.
Some judges, for example, may not like summary judgment. Others tend to exalt property rights. Many have little sympathy for large corporations. Whatever the situation, you ignore their prejudices to your great peril.
The work habits of each judge are important. This includes how closely the judge reads briefs and supporting cases, how he uses his law clerks, and to what extent he does his own research and writes his own opinions.
Knowing the raw data described above is only the beginning. You must evaluate it carefully and in perspective in order to obtain a meaningful profile of the judge.
Finding the Information
Where do you get the necessary information about the judge?
The best source may be recent practitioners who have personally encountered the judge in court. Previous law clerks may be a good source of information, but beware of their propensity to remain loyal to the judge. Former partners and colleagues are also frequently helpful.
Heeding Court Procedures
Every court has internal operating procedures, and very few consider them proprietary information. Most courts have processes that are widely publicized at bar meetings or in print (and are usually available from the court itself). Trial judges naturally expect you to be fully familiar with these rules of court.
This is also true of appellate courts. Most appellate courts, for example, hold a conference immediately after the case is argued. A high percentage of cases are therefore decided in a tentative vote taken a few hours after oral argument. If you know this, you realize that you should rarely spend time urging the judge to read more cases before deciding the case.
You should also determine how writing assignments are made within an appellate court. In many courts, the presiding judge assigns the opinion after argument and conference. In other courts, cases are assigned well before argument. Each panel member knows who will write the opinion, provided the majority adopts that judge’s position. A prominent part of the panel conference is the writing judge’s recommendation for how the case should be decided. It is prudent for you to figure out which judge has been assigned the case in order to appeal to that individual at oral argument.
Many courts try to conceal the identity of the judges on the panel, but there are usually ways a resourceful lawyer can find out. Even if you cannot find out until shortly before argument, you can still adjust your presentation for the particular judges on the panel.
To be effective, you should also know how each judge regards oral argument. Some like it, while others regard it as a chore. Many judges arrive better prepared than others, and this will have an effect on how you approach them.
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.