Bradley R. Bobroff | Proskauer Rose LLP | June 2, 2016
For trial lawyers, hostile adversaries are par for the course. But judges are supposed to be irreproachably impartial, right? That is, after all, the very cornerstone of our judicial system. So when you find yourself trying a case in front of a judge who is openly hostile to your witnesses or your client’s case – particularly if you feel the hostility is unwarranted or comes seemingly out of the blue – it can rattle even the most seasoned trial lawyer. And while it can be an incredibly frustrating experience to say the least, you don’t have to let it throw you off your game. Below are six tactics to keep in mind when your trial judge clearly, unequivocally, and openly, isn’t buying what you’re selling:
- Resist the Urge to Engage: It should go without saying, but fighting with the judge is always a bad idea. That is a battle the trial lawyer will lose every time. It’s like a nun fighting a ninja. That’s not to say that one shouldn’t vigorously and forcefully argue one’s case, and make every effort to convince the judge that your client’s position should win the day. That is a trial lawyer’s job. But that type of advocacy is very different from taking a judge to task for exhibiting hostility toward your client or your case. And while some criminal defense lawyers have been known to pick a fight with a hostile judge as a strategic move to try to get the judge to make a mistake, on the civil side you will do yourself and your client a grave disservice if you go to war with the judge, even if, in the moment, you think it would make you or your client “feel better” about the injustice you are suffering.
- Make Lemonade: The only thing worse than a judge who dislikes your client and makes his views abundantly clear, is a judge who dislikes your client and keeps his views to himself. Particularly in bench trials, where the judge is also the trier of fact and there is no concern that jurors will be influenced by the judge’s perceived lack of impartiality, the judge may feel more free to make her views known to the litigants and witnesses before her. Seize the opportunity – take a step back and figure out what is bothering the judge so you can address it. Judges with a really good poker face won’t give you the chance. And the first you’ll learn of his or her views may be months later when a scathing decision comes down in your opponent’s favor. At that point it’s too late. So if the judge is showing you his cards, read them. A word of caution, though. There is always the possibility that you are misreading the judge or his motivations. He may just be in a bad mood, or may feel like the other side needs a boost in the face of your incredibly skillful lawyering. We all have stories where we were completely convinced that a judge hated our client or our witnesses and then, lo and behold, we win the case. Keeping those stories in the back of your mind will, at the very least, help you survive what can be the most frustrating professional experience imaginable.
- Be Prepared to Pivot: You’ve prepared for months for trial. Your witnesses have faced hours of mock cross-examination. You know the facts and the law better than anyone else in the courtroom. You have every detail of your plan of attack mapped out. You are locked and loaded for trial. Well, no you’re not, unless you have a plan B and C and D. Flexibility, and the capacity to shift gears or change the order of your witnesses or the presentation of your evidence, is imperative. Once you’ve zeroed in on what’s causing the judge to be so ill-disposed to your case or your witnesses, refocus your energy and the presentation of your case to address what’s bugging the judge. But you can’t do this effectively on the fly. You need to prepare in advance, as much as is humanly possible, for every potential eventuality.
- Hire Local Counsel: If you are trying a case outside of your normal locale, it is worth the investment to bring in a local trial lawyer – who has his or her finger on the pulse of that courthouse – to second chair you. You may actually be able to preemptively avoid some of the judge’s hostility by having a familiar face sitting next to you at counsel’s table. And if the judge is reacting more favorably to your client’s arguments when he is hearing them from someone he already knows and trusts, be smart enough to let your local counsel play a larger role in the trial. A trial lawyer’s ego should always take a back seat to the client’s best interest.
- Make Your Record: In the heat of trial, it is very difficult to think about the eventual appeal of the case you are currently trying to win, but if you don’t make your record at trial you may very well lose a winnable case twice. This is easier said than done, particularly when the judge’s hostility is palpable, but it is absolutely critical. Always, always, always, be respectful and deferential to the Court, but make sure you get the evidence you need in the record and preserve your objections for appeal.
- Settle: Some trial lawyers consider “settlement” a dirty word. But that’s just putting “ego” over ethics. Well over 90% of all civil cases settle and, more often than not, settlement is the best result for all parties involved. Settlement brings finality to a dispute. There is often real value in that for both sides of the v. Only the rarest of cases are unsettleable. And cases settle all the time in the middle of trial. You need to be prepared for that and you should start the dialogue early, even if, as is almost always the case with trial lawyers in the throes of battle, settlement is the farthest thing from your mind. From the outset of the trial, let your opponent know that you are always willing to talk about a reasonable settlement. If you’ve discussed settlement before, then if you unexpectedly run into a brick wall who wears a black robe, your settlement proposal will seem less tied to a fear that the judge will rule against your client and more in line with your earlier overtures. Of course, timing is everything. The first break right after the judge has castigated your key witnesses is probably not the best time to approach opposing counsel about settling. You will find an opening, and when you do, settle the case.