Trials & Litigation

Some time ago at a pretrial conference, I heard a lawyer correct a judge over a trivial matter. It did not go well for him.

Our hearing lasted several hours as we worked through motions in limine and some evidentiary issues. The lawsuit arose from a motor vehicle collision, which the judge colloquially referred to as an “accident.” Before the judge had even finished her sentence, opposing counsel piped up: “Your Honor, it’s a wreck, not an accident.” A discussion was had. Opposing counsel boldly treaded out onto the cracking ice asserting this incident could be appropriately called a collision or a wreck, but not an accident. The court did not agree. Opposing counsel concluded his end of the argument with: “Well, we’ll just have to agree to disagree.”

More than two hours later, in the middle of ruling on other issues, the judge stopped midsentence: “Let me tell you what I don’t appreciate, Mr. Opposing Counsel …”

She hadn’t let the issue go. It was eating her up that he had argued with her in that manner and over such a trivial matter. He had used poor judgment in picking a fight over a nonissue at the outset of what was going to be a contentious trial that would require many rulings from the court. I can’t say the matter affected any decisions the judge made, but she didn’t immediately forget about the indiscretion, either.

This brings us to a few pertinent questions. The first has an easy answer. When should you fight with the judge over a nonissue? Almost never. However, there may be times when you have to argue with the judge about a pressing issue. I asked several lawyers: “When does something matter enough to argue with the judge about it?” Their responses were interesting.

• Ohio civil lawyer: “Generally, you aren’t going to change the judge’s mind. So unless the client needs a show, preserve the record and move on.”



• Indiana criminal defense lawyer: “A big part of litigation is making the record. If it’s not in writing and/or not said, you might be hosed. So even if the judge is clearly not going your way, you request time to make a record for appeal. Most judges have no problem with that. But I don’t hesitate to argue with a judge frequently. My client is paying me to advocate for them, so I do it. [Judges] rarely take it personally. Luckily, I rarely have to do it because judges like my personable demeanor. I think those subtle nuances that comprise someone’s charisma can take you surprisingly far. But If I know a client’s about to get hosed, like on a suppression issue, I’ll argue a point to preserve the issue. Only time you back off is if a) judge has a fragile ego or is otherwise easily set off, and b) your client has something immediately at stake at that moment. This way you can always assert strategy if the client is ever trying to make an ineffective assistance of counsel claim against you.”



• Canadian civil lawyer: “It’s almost never worth arguing directly with a judge. If they think the fact or rule of law is X, you’re never going to do particularly well just saying that it’s not X. That said, some judges leap quite quickly to their conclusions without spending a lot of time thinking about how they got there. Arguing respectfully and somewhat indirectly with them can be helpful. In one of my first appearances at a trial, I had a judge make a ridiculous math error right near the beginning of my submissions; he yelled at me about how my math was wrong. I got on with my submissions on the other uncontroversial points, and at the end (once he’d had time to cool down, because he was famously hot-tempered), went back to the math. I took him through the calculation (which was really just a sum of four items, but yeah, I was yelled at for daring to disagree with him), and tried to treat it as a way of helping him get to the right reasons. That time, it worked. Other times in front of that judge haven’t always been so successful, but respectfully disagreeing with a judge’s conclusion and explaining why is the only sort of arguing with a judge that I’ve ever seen succeed.”



• Indiana in-house counsel: “I would imagine in a civil context never worth it to ‘argue’ in person. Respectfully disagree and present a counterpoint, yes, but not become argumentative. There’s almost always an opportunity to express your disagreement in a later motion.”



• Canadian government lawyer: “When the judge invites your [arguments]. Beyond that, it’s like arguing with a cop by the side of the road.”

IS IT WORTH YOUR LICENSE, OR YOUR LIFE?

Whether it is appropriate or wise to argue with a judge may depend heavily on what is at stake for your client. I’ve worked with lawyers who were within seconds of being put in jail for contempt as a result of arguing with the court. Sometimes, an issue may be just that important.

But even in those situations, it’s important to maintain the proper decorum. It’s going to be much more difficult for a judge to sanction you when you address the court with the proper respect, as opposed to how a North Carolina lawyer expressed her frustration, by asking the judge: “What the hell is going on around here?” Dissatisfied with the response she received from the court and ignoring any warnings, the attorney then iterated multiple times: “What the fuck is going on around here?!” She’s suspended now and unable to help any would-be clients.

In the 1980s in Birmingham, there was a notorious judge named Jack Montgomery. He was unpredictable, could be intolerable, and was known to carry a gun under his robe. During a hearing one day, a prominent criminal defense attorney stood his ground on an issue. He and Judge Montgomery already had a strained relationship, and the judge instructed the defense lawyer to drop the issue. The attorney refused to concede. Judge Montgomery pulled out his gun and threatened to shoot the defense attorney if he didn’t shut up and leave the courtroom. Chaos ensued. Bailiffs escorted out both the judge and attorney, separately. Another judge was appointed to the case, and the new judge granted the attorney’s motion.

For most of us, we are unlikely to face a scene from the Wild West when taking issue with a judge’s ruling or position on a matter. But determining the propriety of drawing the court’s ire by standing your ground may turn on the issue at hand. To the extent possible, you need to consider what your response is going to be if a judge rules against you before getting into an uncomfortable situation.

You can be assured of this, though: It doesn’t ever do to call a judge out on her terminology usage when it’s a nonissue that has no actual bearing on anything of consequence.

Jeremy W. Richter is an associate with Webster Henry in Birmingham, Alabama, and the author of an eponymous law blog.

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