April 08, 2020 Practice Points

Five Things to Do If You Absolutely Want to Lose a Court Hearing

Young lawyers should heed these cardinal rules of conduct when handling court hearings.

By Mark A. Romance

While every lawyer handling a court hearing makes mistakes, some mistakes are more important than others, and some are certain to draw the ire of a judge who is going to decide your client’s fate in a case. Here are five things you should absolutely avoid when handling a hearing, whether in-person in the courtroom, or by remote video from separate locations (as most courts will be doing for a while during the COVID-19 crisis):

  1. Interrupting the Judge. Most kindergarteners learn one of the basic tenets of society: Wait your turn. A law license does not exempt humans from that centuries-old edict. The person wearing the black robe has the power to decide your client’s fate. It therefore should be obvious that you should treat the judge with dignity and respect. Lawyers should listen carefully to a judge’s questions and wait for the judge to finish before responding. Interrupting a judge is a surefire way to draw the judge’s attention away from the merits of your argument and focus on the rude behavior.
  2. Interrupting Counsel. Opposing counsel may insult you, be totally wrong, provide incorrect facts or law, or even may be downright offensive. Notwithstanding, a judge will not appreciate your attempt to correct the misgivings by interrupting your opposing counsel. Refer back to the first rule: Wait your turn. When opposing counsel is finished, make sure to alert the court that counsel’s statements were incorrect and, if you do not have a right to a rebuttal, request that the court afford you an opportunity to clarify the record, whether orally at that moment or in writing following the hearing. This is not a sign of weakness. It is an opportunity to show the judge you are respectful of the process even if opposing counsel is not, and you are simultaneously finding an appropriate way to correct counsel and the record and to persuade the court that your position is correct.
  3. Sitting When Addressing the Court. The 1992 motion picture My Cousin Vinny showed the world what can happen when a lawyer does not stand up to address the court. Obviously not all judges are as strict as Judge Chamberlain Haller. But just because your judge does not react harshly does not mean that she feels equally disrespected when you sit and address the court. Many judges will offer counsel the opportunity to sit while making an argument outside the presence of the jury. But unless invited to do so, counsel should err on the side of formality and stand to address the court. (If you are engaged in a remote hearing by video conference, this rule will likely not apply!)
  4. Not Watching or Listening. Judges, like all other people, give cues to their thinking through their body language, tone, and facial expressions. If you watch a judge closely during a hearing, you can learn much about what she is thinking and may not be saying. For example, if you a judge is frantically searching for something on her desk or on her computer while you make an argument, it might indicate that she has not read something important for your hearing. That should be your cue to give the judge a big-picture view of your case before you focus on the details that support your position. A busy trial judge may not initially remember the background and facts of your case or its procedural history. A good lawyer will be able to read the judge’s body language and determine that a little background on the facts and procedural history of the case is warranted before jumping into the argument. On the other hand, the judge’s body language and comments or questions may signal to the attorney that the judge is familiar with the case and in depth summary of the background is not necessary and that counsel should proceed with the detailed arguments.
  5. Addressing Counsel and Not the Court. The purpose of a hearing is for the court to hear arguments, ask questions, and rule. Your arguments and comments should thus be addressed to the court, not counsel. The courtroom is not the place to address counsel. No matter how personal, rude, or wrong your opponent is, direct your comments and arguments to the court. The judge does not want to hear bickering among counsel and you will lose respect of the court and the court’s attention to your argument by addressing counsel during a hearing

Mark A. Romance is a partner with Day Pitney in Miami, Florida.


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