YourABA October 2011 Masthead

Advice on criticizing judicial decisions

Citing Model Rule of Professional Conduct 8.2(a), Walter C. Kurtz, a senior judge for the state of Tennessee, says that lawyers are charged with maintaining the integrity of the justice system, but warns that “making false and reckless allegations about a judge undermines the rule of law and can lead to ethical and professional problems.”

Providing the guidance in his article, “Tips from a Judge on Properly Criticizing Judicial Decisions,” Kurtz goes on to advise that before a lawyer asserts that a judge is influenced by improper motives, he should have evidence and be willing to report the judge to the appropriate disciplinary authorities. “If the lawyer is unwilling to carry an allegation that far, then it is probably not appropriate to make it in the first place.”

Any allegations that relate to a judge’s character and qualifications should be made with extreme caution. Even asserting that a judge was distracted and confused when rendering her decision, while not as serious as a charge against the honesty and integrity of a judge, must be made carefully.

Still, legitimate criticism “is often necessary to properly represent the interests of a client,” and Kurtz shares advice on doing so.

  • Maintain a level of emotional detachment. “Emotionalism is usually inconsistent with professionalism, and zealous advocacy should not degenerate into mere zealotry.”
  • Mind your manners. “There is never an occasion for defamatory statements in describing the conduct and rulings of the trial judge.”
  • Focus on non-frivolous arguments that involve showing where prior decisions are inadequate or wrong. “Judges expect lawyers to ‘push’ and expand the law.”
  • Refrain from crossing the line into impertinence. “The lawyer crosses the line of inappropriate comment when he or she personalizes or exaggerates the argument.”
  • Don’t be shy, but do use tact, when questioning rulings or cases.

“No judge worth his or her salt begrudges the questioning of a prior ruling, and a ‘thick skin’ is a necessary component to the character of a judge,” writes Kurtz.

Kurtz served as a circuit judge for Davidson County, Tenn., from 1982 to 2008. Before joining the bench he was a public defender and director of Legal Services of Nashville.

“Tips from a Judge on Properly Criticizing Judicial Decisions” is from the September 2011 issue of The Young Lawyer, a publication of the Young Lawyers Division.

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