Jan 14, 2016 Turning a judge’s “no” into a “yes”
Battle is in the moment, so the concept of “when a judge has already ruled, move on” is but a concept.
Recently, I needed to reschedule a trial after new evidence from the prosecutor revealed we need an expert witness, and the judge put his foot down not to reschedule beyond eight weeks, even though the overlapping schedule of me and my expert witness did not fit in with the dates being offered by the judge.
At that point, I simply stated that my client is facing significant jail time if convicted, we need our expert to reduce that risk, and I came to court immediately after receiving this new piece of evidence from the prosecution that prompted my continuance request. The judge went into the mode of offering us just one more trial date two weeks later, and that date fit the calendars of me and our expert witness.
The foregoing is a simple example of successfully standing up to a judge’s denial of requested relief. The same concept applies to inviting a judge to see his denial from a different perspective, with an additional idea, or with a reminder of the state of available evidence and governing caselaw. Instead of the lawyer’s conveying an attitude of irritation with the judge’s ruling, no matter how infirm the ruling may seem, the lawyer can instead invite or request the judge to reconsider his decision by stimulating the judge’s curiosity or assisting the judge in looking good with his final decision.
The result of asking the judge to revisit or reconsider his “no” can meet anywhere from appreciation or interest by the judge to “I have already ruled” to a shout of “Counsel, SIT DOWN!!!!!!!”
Judges are mortals, so they will make good and bad decisions. Lawyers need to be courageous to stand up to judges as needed and prudent and within the bounds of the governing lawyers professional rules. Otherwise, the lawyer does not belong in the courtroom.