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June 06, 2011 Articles

Top Tips for Litigators

Judge Susan N. Burke offers tips for women litigators from the perspective of a female judge.

By Hon. Susan N. Burke

In January 2008, I was in Cairo, Egypt, meeting with a small group of women who had just become some of the first women ever to be appointed to serve on the Egyptian judiciary. They wanted to know what it was like to be a woman judge in the United States. They shared with me stories of their male colleagues refusing to even sit on the bench with them. The Egyptian judges sat on multiple-judge panels, so collegiality was of utmost importance.

In contrast, when I became a judge in 2005, 27 of my 61 fellow judges were women. The chief judge of the district court was a woman. The chief justice of the State Supreme Court was a woman. At one point, four of the seven Minnesota Supreme Court justices were women.

Our experiences were so different that I did not feel that I was able to offer much useful information to my Egyptian friends. I do believe, however, that I can share some tips that may be useful in your practice here in the United States.

Get Along with Opposing Counsel I am always impressed when counsel can work out disputes between themselves without involving me. By the time a dispute gets to me, it is really hard for me to tell who is at fault. I recognize that one side is probably more at fault than the other, but I am much more interested in getting the case tried than I am about figuring out why the attorneys are not getting along.. It may be easier said than done, but do what you can to work with opposing counsel in a professional manner, no matter how difficult they are.

Do Not Get Emotional Rarely do I find emotion persuasive. Hyperbole never works. It is important to me that everyone who appears before me is treated with respect and has a fair opportunity to be heard. When people behave unprofessionally toward others, I have to intervene. That can distract me from following your argument.

Address Your Weaknesses Openly It is important to me that people feel that I heard and understood their argument and that they understand why I ruled the way I did. To accomplish this, I have to address the parties’ arguments and explain why I was persuaded by one and not the other.

You should recognize that the judge will have to consider and address your opponent’s strongest points. Helping the judge figure out how to do that may be more persuasive than simply repeating your strongest arguments.

If you are getting pointed questions during oral argument, do not be defensive. Many times, the judge is leaning toward ruling in your favor, but is looking for help addressing your opponent’s point.

I see many lawyers who either will not or cannot open their minds to see the case from their opponent’s perspective. You should realize that the judge is going to look at the case from your point of view and from your opposing party’s point of view. The judge will not be biased or emotionally attached to either side. You should do that too and then be prepared to explain why your side wins.

Argue the Law and Principles of Fairness As a judge, I feel very bound to follow the law. I also feel very strongly about being fair. Being consistent is usually a part of being fair. There are a surprising number of cases where the law is not clear and the judge has to figure out what should happen in the absence of guiding law. If the law is clear, tell me. If it is not, tell me why you should win. Appeal to my natural “judge” urge to be fair, and tell me why the law should be extended or developed your way.

These tips may seem simple, but in the heat of battle, it is easy get caught up in the fight and forget the basics. I hope these reminders contribute, if even in a small way, to your continued success and professional happiness.