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Fight like hell, always

Jun 02, 2011 Fight like hell, always

Trial lawyers: Beware when your opponent cuts you off — aside from merely making a non-speaking objection — when you are explaining an objection or other legal argument during a trial or motions hearing. When judges have a busy docket or long day ahead of them, an inclination for many judges might be to cut off fairly hearing from both sides when they think matters are droning on, and to rule in order to "move things along", and sometimes because they have lost their train of thought.

In that context, an opponent’s cutting you off in mid-sentence should not be seen as benign merely because a jury is not present. Instead, whether or not the opponent’s purpose is sinister, sometimes firm but polite action is needed to get the ball back, sometimes along the lines of saying: "Excuse me judge, because I did not finish making my point, I add that…"

Sometimes the moving lawyer will drone on and on so much and so annoyingly that the judge will have had enough of the matter by the time the opposing lawyer responds, and not give a fair hearing or fair time to the responding lawyer. One way to handle that can be to start off with a fresh and riveting (and non-annoying) opening salvo in responding. Another way might be to politely interrupt and ask that the responding lawyer be permitted to respond after each separate argument of the opponent, to perhaps assist the judge in ruling on each point of the opponent as the arguments proceed.

Sometimes some judges themselves will cut off a lawyer before s/he has had a fair chance to argue a point or make his record. Whether or not the judge is being intentionally sly in doing so, the appellate record will not necessarily show that the judge has cutoff the lawyer unless the lawyer makes that clear. Some phrases that the cut-off lawyer can use include: "Judge, because I did not finish stating my grounds for my objection, the remaining ones are…" If the judge is being particularly sinister or otherwise a damaging roadblock to protecting the record, the lawyer may need to be more diplomatically aggressive, including saying: "Your Honor, not having been given the opportunity to finish the grounds for my objection, I hope I will be permitted to make my record." If the judge fully derails making the record and prohibits any further oral words about it, electronic filing (and hand-filing where electronic filing is not available) is essential to immediately do to protect the record and to show that the lawyer took the first opportunity to do so.

Certainly such aggression with a judge risks his or her ire. However, oral skill is available to get one’s powerful point across to the judge about damaging and unfair interruptions to reduce the ire. Moreover, it appears that some judges rely on making lawyers fearful of challenging them when they make unfair and damaging interruptions. Our clients rely on us to stand up to unfairness and injustice to their case, even when the harm comes from the bench.

Unfortunately, as much as I believe in seeing people — including opponents — as all connected, that does not diminish one bit the need to be ready to fight like a deft and effective eagle-hawk at all times for our clients.

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