I was examining my client’s quality manager. This was important testimony because part of the defense revolved around a robust testing method for the product and a specific testing methodology. He was a good witness and had prepared just like I instructed him to. I was making quick work of it—maybe 10–15 minutes in and had estimated an hour at most for the testimony. I was laying the foundation for what I expected would be great testimony going to the heart of our defense.
“Counsel,” the judge said in a booming voice, which the microphone made even more booming, “this is all truly fascinating about this industry and how testing works, and I’m sure the company has 1,000 certificates of how good they are, but it has nothing to do with what we are here for!”
Yet, it had everything to do with what we were there for.
“Thank you, Your Honor. I wanted to transition from these questions and ask Mr. Smith just a few specific questions on the testing he just testified about as it relates to the model in question, as we believe it goes to. . .”
“Counsel,” he said, looking over his thick glasses and pausing long enough to let me know what was coming next, “do you really want to keep going down this road?”
Well, this is going just super, I thought. There went my big plan in 15 minutes. Embarrassed in front of our client, who probably thinks I’m an idiot. This was a bench trial, so my jury—whom I had to have with me on the key issues—just told me to shut the book.
“Thank you, Your Honor. No, we will move to. . .”
Some say litigation is war. I do not agree it is in all cases. In my case before this judge, though not at war, we were in a conflict nonetheless. Sometimes there is no choice in high-stakes litigation. In my case, the opposing counsel lied. He engaged in some of the most egregious witness coaching—or should I say testimony—through speaking objections that I have ever seen. There was abusive discovery and nasty treatment of our experts. The list goes on.
Though I had an unwanted war on my hands with him, I did not expect to take shrapnel from the judge as well. If litigation is war, then the judge is the equivalent of the United Nations. One expects neutrality. If the United Nations is attacking you, you have a bigger problem than just war. The judge we had in the case has a curt and gruff manner. In addition to being in a three-week trial before him, I had been before him a few times over the years. During three weeks of trial and what felt like an eternity of pretrial and in limine hearings, and then the boatload of post-trial motions, I got to know him pretty well and learned the dos and don’ts of his courtroom. I thought I’d share some insight from the experience.
At the outset, I write this piece sharing my experience, tips, and lessons learned so that it may be of use to someone. I wish I had heard more of those years ago. None of what I am saying here is intended as a personal attack or to discount the work judges do. Let us stipulate that the work of a judge is harder than most of us could understand. Judges in the courts I frequently appear in have multiple trials set every Monday for the next year. Some have no research clerk. Many give up weekends and nights to read what we file.
Having said that, I do believe a judge’s demeanor and temperament can negatively affect a party’s case. A difficult judge can make it difficult for you to prevail in an already difficult case.
What constitutes a “difficult judge”? There is no universal definition, of course. And a difficult judge is no different than a difficult supervisor or client (though you don’t have to worry about the judge not paying your bill). For me, what makes a judge “difficult” is the appearance of lacking respect for those who come before the court, whether lawyers or witnesses, or conveying with body language or words that a particular lawyer or party is not worth listening to, even if that is not the intent. Refusing to read papers filed is another one, making things that much harder when the judge gets frustrated about testimony that is explained in the papers. In short, the same things that make an opposing counsel difficult can make a judge difficult.
Every profession has difficult personalities. Some of these folks seem to almost enjoy a scorched-earth approach to the work and those they deal with. While that is a reality in the legal profession for better or worse, the difficult judge is in a different category. A difficult judge is a lot different than a difficult opposing counsel. One can make the case weaker or stronger, and the other can sink the case altogether.
So what does one do when faced with such a situation? In my case where the judge shut me down, I knew I had to adapt and find a way to make this environment work for my client. The client comes before ego. You cannot change the demeanor of someone who has been doing a job for a while and sometimes, as in my case, for decades. You can change the way you allow the demeanor to affect you and the quality of your representation. Was I going to curl up in a corner because I had been what I believe was unfairly slapped down, or was I going to brush it off and adjust the approach? We adjusted and ultimately got the evidence in and prevailed. Regardless, it was a most unpleasant experience getting there.
Many readers have encountered this—likely several times in their careers—but others, particularly younger litigators, have not; or if they have, they may wish they had some way to handle the situation better. I have no magic solutions for you. Anyone with a teenager or mother-in-law can tell you changing human nature is all but impossible. But there are some strategies you can consider when faced with such a situation.
First, be prepared. We know we need to be prepared for the hearing, the deposition, or the trial. With certain judges, however, you need to be more than just prepared. Some difficult judges have a way of finding that one thing you did not consider when you got ready for the hearing. They spring a question that requires you to gloss over the fact you did not expect the question and do not know the answer. They ask for your availability for trial when you least expect it and don’t have your updated calendar. They press you to agree to something when you are unsure of your authority to do so. If you do not know the answers to all the questions you can anticipate being asked, you have painted a target on your back. Difficult judges often have a short fuse and will not sit idly by while you tap-dance around the thing they believe you should have known but do not. Prepare more than normal. Know the facts cold—and your availability for trial or further hearings—before you walk in. You thereby neutralize the ability to be dragged into a discussion of why you are not prepared. And if you do not know, say it without qualification. Even a difficult judge appreciates candor.
Second, have a thick skin and be ready to pivot. We are all used to criticism, although some of us take it better than others. With the difficult judge, you will need to take it, and some of it will be unfair and some of it may feel personal. “Never let them see you sweat” was the tag line in a deodorant commercial years ago. When you are before a judge you feel is going above and beyond in his or her criticism (as my judge did a number of times with rulings on objections and what might be considered gratuitous commentary), never letting the judge see you sweat is one good idea. Never letting the judge see you riled up or freeze like a deer in the headlights are both good ideas too. Treat what you just heard as a lighthearted comment, or as you listen, imagine your happy place. Do not stay tensed up, and remember to take some deep breaths. Absorb it, respond to it, and move on from it. Don’t argue, and don’t make excuses. A judge—just like a lawyer—will pick up on nerves, on doubt, and on getting angry. A difficult personality may encourage a difficult judge to bore in and go further, especially if you argue the point. Smile, thank the judge, and pivot to the next question or topic or witness. And you better have the next question, topic, or witness ready to go so as not to compound a problem.
Keep moving, keep cool, and keep smiling, or at least not frowning. In my trial before the difficult judge, I had a plan B in terms of how to get some of the information I needed into evidence. My very first legal secretary once told me, when I was in one of those first-year associate panics over something unimportant, “Honey, this is litigation and there’s always another way.” You should consider your other way and have a plan B arsenal. And even if you can’t think of one on the fly, there may still be a way if there is more time to think about it.
Third, be on time every time. In the trial, my team was there in the hallway at least 20 minutes before the clerk unlocked the door. The opposing team would arrive in a staggered fashion, sometimes one of them coming in after trial had already begun. Another time, the judge and my team were waiting to begin, and opposing counsel did not appear. They finally called in and advised they were “running late” in a different courtroom across town. The judge was on the bench and ready to go, yet not one of a team of three lawyers could bother to show up on time, much less give adequate notice ahead of time of this conflict. The judge was furious. And with good reason. When we resumed, the judge tore into them about their lateness without notice. It was not pleasant (though I admit I did “somewhat” enjoy it). This was a judge who was on time and started trial at 9:00 a.m. sharp each day, greeting us all like a root canal. The opposing team’s lack of thought as to how it would come across being late and keeping the court waiting—and these were experienced lawyers—boggles my mind. Being on time makes a difference in all cases, but I think even more so with this type of judge.
Fourth, respect the judge and the court. Treat others as you wish to be treated. This type of behavior should be a given for all lawyers, regardless of which courtroom you are in. I am surprised, however, at how often some counsel seem to forget this basic rule. In the trial I refer to, the opposing team was discourteous to the judge and the court. When the judge sustained an objection, even if he was dead wrong, the opposing counsel not once said “thank you,” much less “very well, Your Honor.” Rather, counsel had a perturbed, almost bothered, demeanor and sometimes tried to argue the objection. Bad idea generally, and really bad idea with this judge, who exploded a couple of times. That counsel did not get the hint is baffling. Counsel also never rose when the judge entered or exited the courtroom. Though the custom varies by jurisdiction and seems to be rare in much of California, I instruct my associates to rise when the judge takes—and leaves—the bench. It is the judge’s courtroom, we are taking the judge’s time, and whether I agree with rulings or not, the judge earned the respect we should be giving well before we got there. The opposing counsel stared at us as we rose, and one made a half-hearted effort and then gave up. Does it make a difference? It does not win or lose a case, but I do believe it affects the way you are perceived. And why not look for ways to help that perception, especially when up against counsel who make no effort?
Fifth, remember the staff have eyes and ears. It amazes me how many lawyers, young and old, take for granted and treat the court’s staff and law enforcement in the courtroom with disrespect or act as if they do not exist. That is a mistake for a couple of reasons. These are people—actual people doing important work keeping the court system functioning. They usually do not enjoy listening to us drone on about various topics, yet are captives and do so respectfully. They deserve our respect in return, and our thanks. Some lawyers see appearances and trials as “showtime” and do not believe they have to have their game face on before the judge takes the bench. They demand things from the staff. They talk down to them. They argue with them for decisions out of their control. They look through them or not at all when they talk to them. When it comes to trial exhibits that were admitted, for example, the clerk is the boss, regardless of whether he or she incorrectly entered them or not. The opposing counsel in my case showed no respect in this regard and tried to blame the clerk for things that were the responsibility of the lawyers.
More importantly, whom does the clerk talk to almost every weekday? Of every year? While clerks may work for the county, the person they interact with daily and who is the “boss” is your judge. Depending on their relationship, the clerk and judge may discuss things outside the pleadings or procedure. The judge may have a different temperament off the bench with clerks. Clerks may share opinions about the lawyers and their behavior, including what they overheard or witnessed before the judge took the bench. In my case, my team made chitchat every day with the clerks or engaged in some light banter. Not because we were trying to score points, but because we exercise manners. The opposing side never bothered. Never used the names of the clerks. Treated them poorly overall. They also left their counsel table a mess. That may seem like a small thing, but these clerks have to be in this room all day and ours is not the only case. Leaving your mess for the clerk is not a wise idea. At the end of the trial as we were saying our goodbyes, one of the clerks looked toward opposing counsel who were departing and said she could not believe how rude they were. Ouch.
Finally, consider humor. This is a risky idea, and only you can know for sure if it will work with your judge or if you feel confident enough to pull it off. If in doubt, do not do it. In my trial, the judge was in his usual foul mood and gruffly barked out his rulings on objections and berated the lawyers for wasting his time. When it was my turn to absorb the gruffness, I sometimes employed a little humor. When I found myself tripped up in pulling up the right exhibit from our computer and the judge was getting impatient, I not only thanked him for his patience, but I made a point of apologizing and made a brief side note: “I’m clearly no Mark Zuckerberg, Your Honor.” He didn’t smile, but he also didn’t bark further. Small win. When the opposing side was late (not for the first time), and as my team sat ready with the judge on the bench, I said, “Well, Your Honor, I think they’ve thrown in the towel and stood down. Might you enter a dismissal?” I take pride in having made him actually smile on that one and even utter an almost-laugh. Humor can be an elixir (but if employed the wrong way, it can also be poison).
Contending with a difficult judge is no different than dealing with a difficult personality in anyone—except that your reputation, your job, and your client’s money, reputation, or life may be on the line. Other than that. . . . Because of this, you have to go the extra mile, and you have to learn to operate in an unpleasant environment. It can be done. Good luck!
