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May 01, 2018

What Lawyers Want to Tell Judges; What Judges Want to Tell Lawyers

By Robert H. Edmunds Jr.

As a practicing lawyer (both prosecuting and defending criminal cases), I’ve been chewed out by judges at every level from traffic court to U.S. Circuit Courts of Appeal. As a former judge on an intermediate state appellate court and a former justice on a state supreme court, I’ve seen many lawyers trying to convince me and my judicial colleagues that other judges either did or didn’t make a mess of the case.

Although quite a few attorneys at some point in their careers have had the good fortune to serve a stint on the bench, judges can forget what it’s like to practice law, while lawyers are often in the dark about the world of the judge. For what it’s worth, here’s my list of things I believe each side of the bench would like to tell the other.

As a practitioner who has just recently returned to the private practice of law, with some trepidation I share the following thoughts for the bench:

To all judges:

  • Please do not belittle me in court, and especially not in front of my client. I welcome robust debate and am not suggesting that we shouldn’t discuss and wrangle over the legal matters in court. I understand that you will rule against me on occasion (though I wish you wouldn’t). But unless I’ve asked for it, telling me while my client is watching that I don’t understand the issue and my argument is wasting your time is unworthy of the court. Moreover, you may be the one who is wrong.

On the other hand, if I’m pushing too hard, a quiet word away from court can be valuable.

  • You can hit me. I can’t hit back. Please remember that and exercise with caution and discretion the authority entrusted to you.
  • Lawyers have told you that you are smart, wise, careful, learned, eloquent, courteous, kind, deliberative, compassionate, and good looking. Maybe so, but remember that these same folks have told every other judge the same thing.
  • Unless I have demonstrated beyond doubt that I am a blabbermouth or an idiot, please don’t constantly interrupt me. If I interrupt you, I deserve to be admonished.

To trial judges:

  • You should expect me to know more about the case than you do. I have been living with it for anywhere from a few weeks to several years. Please do not make presumptions or jump to conclusions merely on the basis of introductory comments you have heard from me and opposing counsel.
  • In a jury trial, avoid suggesting that I have surely won and thus don’t need to present all my evidence. While you should expect me to proceed efficiently during trial, no one knows what jurors are thinking or what they will do. This is my only chance to make my case.
  • Don’t be bashful about asking me and opposing counsel about the pertinent statutes and cases. No one is an expert in all things and careful questioning helps me focus on what is important to you and may save you from being reversed.
  • Appearances matter. Please don’t hang out with my opposing counsel where my client can see. I know that you see the local folks all the time and have longstanding friendships that do not affect your impartiality. My client does not know this and is skeptical even after I explain.
  • I am not my client. If he or she has behaved badly in the past, I probably know the details better than anyone else in the courtroom. However, I am the only one in court on whom my client can rely and I will represent him or her to the best of my ability. You should expect (indeed demand) no less from me. Don’t let your distaste for my client color your treatment of me or others who represent the unpopular or the unlovable.
  • My criminal client just pled guilty. All he or she wants to say to the court now is, “I’m sorry,” and move on. While I understand that you may be required to address my client and explain the reasoning behind the sentence you are imposing, please don’t take this moment as an opportunity to conduct an inquisition.

To appellate judges:

  • No matter how many times I have appeared in your court, I’m nervous.
  • Today may be my first and only appearance in my career before your court. My family and friends may have come to watch. Please don’t diminish the experience.
  • Please tell me what arguments you want to hear, especially in a complex appeal where a number of issues have been briefed. Time is precious and my goal is to address the issues that matter to you.
  • Remember that whatever you write in a published opinion is in the books forever. If you write an opinion implying or stating that a colleague on the bench is a dolt, he or she can return the favor in a concurrence or dissent. If you write similar things about me, I can’t.
  • While humor can ease the tension inherent in an appellate argument, use it cautiously. Every lawyer understands that it is obligatory to laugh if the judge tells a joke but fatal to laugh if the judge says something foolish. A pun, especially a bad one, can leave counsel stranded, unsure which response is appropriate. As you might guess, I learned this one the hard way.
  • Be cautious about characterizing an issue as “frivolous.” While I understand that there are times when the term may be unavoidable, as a professional, I have attempted to weed out all arguments that can be so described.
  • Biting sarcasm has little place in an appellate opinion.

As a former judge and justice, with somewhat less trepidation I share the following thoughts for lawyers:

  • I have read everything you have filed. Unless you enjoy participating in your own public execution, do not ask me if I have read your brief.
  • Be on time for court. Be sure your client is on time for court.
  • If you are appearing in an unfamiliar court, ask a local attorney how things are done. Every jurisdiction has its own procedures and customs. You do not want to fit the stereotype of the big-city know-it-all lawyer who leaves home and fumbles what should be an easy win in the rural county next door.
  • Don’t oversell or misrepresent to the trial court the holding in cases you are citing. You may win the day’s battle, but you risk having the case reversed on appeal when the panel takes a closer look. Moreover, the trial judge you led astray will not forget.
  • Don’t disparage other judges or other courts. In particular, do not tell a reviewing court that the trial court or an intermediate court “ignored” controlling law and “inexplicably” bungled your case. Word gets around. Consider instead such language as “The trial court’s decision is inconsistent with this Court’s precedents.”
  • If you, as the prevailing party, are preparing an order for the judge’s signature, alert the judge to any area where you are not sure that the draft order accurately sets out the judge’s ruling or rationale.
  • Re-shepardize your cases just before oral argument. Law clerks and opposing counsel like nothing better than pointing out to the court that one of your key cases has been distinguished or reversed. In addition, re-shepardize your opponent’s cases. You may get lucky.

A personal aside: In an appeal held in the Fourth Circuit years ago, when I ran one last cite check of the cases in my brief the day before oral argument, I simply could not find one of them. I still do not know what happened, but the case and the principle for which it stood apparently did not exist. The panel never mentioned that faux citation during argument, but when I pointed out my error, the judges visibly relaxed. They had been waiting to see if I would say anything—a lesson I have never forgotten.

  • Judges don’t care if you and opposing counsel can’t get along, but they do care (and are unhappy) if you attack each other in the briefs or during oral arguments. Be professional. Shake hands after the argument is concluded.
  • In a hearing or trial that has drawn media attention, do not direct your arguments to the cameras or to the crowd. Judges aren’t interested in the back of your head.
  • Briefs and arguments from both sides invariably assure the court that the correct result is “clear.” If it were so clear, we wouldn’t be here.

In conclusion, I hope these thoughts are taken in the spirit in which they are offered. Each one is based on either something that happened to me or something I saw. We owe our best to each other and to the public we serve. Litigation is fun, exciting, and consequential. If the notions recited above help anyone in his or her practice, this article will have fulfilled its purpose.