Persuading and not fearing judges, by seeing them as just one of us
Good lawyer training sessions teach lawyers to persuade jurors by being in the roll of the thirteenth juror — figuratively in the jury box with the jurors, being an “us” rather than an other with the jury. This path is a two-way street, starting with the lawyers’ crawling under the skin and hides of the jurors, empathizing with them, having compassion for them, and attending to their needs as they endure the artificial confinement of the jury box, prohibition against discussing the case before jury deliberations have begun, and only in the jury room, and in the jury room itself, banned from leaving the room without the judge’s permission.
Why not do the same with judges? Sure, judges want to be respected, lest their orders and rulings have no force beyond the value of the paper and ink that their directives are written on. However, judging can be a lonely endeavor, with a mix of people fearing the judge and his or her extraordinary power and the unknown of what the judge can or will do, with the best judges earning people’s respect, and with despised judges getting people to stand for them on entering the court and getting them to call the judge “Your Honor” only out of resentful fear of doing the alternative. Judges are even limited in whom they can confide about their pending cases, lest their discussion with a friend (or would-be friend) about a tough pending case got leaked to the parties in the case or to the press.
Lawyers should never patronize nor manipulate anyone, whether a judge, juror, witness, opponent, client nor anyone else. Mitakuye Oyasin. We are all related, and it is an illusion and delusion to think otherwise. By taking such a compassionate, non-kowtowing approach of feeling connected to the judge, a lawyer can better persuade the judge.
Even the most Solomon-like judge can feel jaded on the days when s/he sees litigants (and even their lawyers) acting beyond petty and dishonestly, and as if the litigants’ entire feeling of self-worth relies on the case’s outcome, without a care for the judge’s needs (including simply to end court sessions on time at the end of the afternoon).
Even the most tyrannical-seeming judges have some level of desire to be spoken well of, but are less likely to depart from their tyrannical-seeming ways with people who do not give them the benefit of the doubt that they can change for the better. A criminal defense lawyer can be effective inside the courthouse without appearing to kowtow to nor accept the injustices therein. A great example of that is my teacher and trial master Steve Rench, who applies the basic and effective lessons of the magic mirror. If a judge knows s/he has a poor reputation with lawyers, that presents all the more reason for the lawyer to empty the mind of any such thoughts, and to give the judge a clean slate that day. Oversimplistically, it is like trying to find the thorn in the lion’s sole and to pull it out, rather than trying to slay the lion.
Most people relate better to people whom they do not see as threat in the physical and non-physical sense. Just as I advise my clients and witnesses to wear clothes that will enable the judge and jury to pay attention to the person and not their clothes, I advise them and me to be calm and kind in court, so that the judge and jurors pay attention to what me and my clients are saying without the distraction of seeing us with nervous and sometimes annoying ticks (repeated sniffing and throat-clearing come to mind, but some cannot avoid it and should find ways to otherwise appear as more calm and angelic).
Judges are generalists, handling a wide range of civil and criminal matters. They appreciate lawyers who have taken the time over the years to fully know the law applying to their case, and to fully familiarize themselves with the evidence, discovery, and procedural history and directives of the case at hand. A lawyer’s credibility is key before judges and jurors. A lawyer of course needs to advocate, and credibility is part of that advocacy. Just as a lawyers should dress and act in a way that does not detract from the lawyers’ words, a lawyer needs always to speak and write credibly and clearly, without unnecessarily excess words. That does not mean that opposing lawyers will never underhandedly or unintentionally never accuse the honest lawyer of dishonorable nor dishonest motives, but does mean that such accusations will be reduced because opponents will not want egg or worse on their faces for falsely accusing the opposing lawyer, and also means that the lawyer will have a powerful response to such baseless accusations, because the truth itself is incredibly and supremely powerful.
Even if a judge angrily barks at me that I am making a frivolous argument, as long as I know I have a solid legal and factual basis for making my argument, I can often neutralize and even turn the judge around by calmly, directly and succinctly saying my grounds for pursuing a particular argument. If the judge acts or speaks as if s/he wants to hear nothing further from me on the topic, I can sometimes still get a persuasive word in — without running afoul of the judge’s rulings — by taking a particularly non-confrontational approach, sometimes along the lines of just simply saying: “Thank you for ruling. I just wanted to make you aware of yesterday’s appellate opinion that guarantees the same protections for my client that I just argued for.” How is the judge going to silence me now? Most people, judges included, do not want to lose face unnecessary. Here, I have just offered the judge and opposing lawyer a copy of yesterday’s dispositive court opinion (if it were only always that easy), that they simply have not gotten around to reading yet; I have saved them time by finding the case for them, as well.
A legendary Maryland criminal defense lawyer who passed away around the time that I started practicing criminal defense was fond of telling the following story, to which I add some of my own gloss: The first time a judge hears a novel argument and disagrees with it, he may proclaim at the top of his lungs: DENIED! The next time the same lawyer makes the same argument to the judge, the judge may think about it a bit and then say “denied” in a more reserved voice, but then continue to be intrigued about the argument and think about it over the next several days. The next, and third, time that the lawyer raises the argument to the judge — sometimes backed up by a concise and detailed written memorandum of law filed well in advance — the judge might ponder the issue, and then say: “I have been thinking about this issue for quite some time. I have just been waiting for the opportune and relevant circumstance in which to have a lawyer present the issue that you have presented. I grant your wise argument.”
The foregoing scenario may be somewhat hyperbolic, but emphasizes that we convince people best when they let themselves be convinced and when they do not feel pressured nor backed into a wall to decide a particular course of action. How many people have EVER bought a car from a pushy, cold, uncaring salesperson, versus from a genuinely warm salesperson (albeit sometimes still under the pressure thumb of his or her boss to sell the car and accessories for as much money as possible) who listens warmly and actively to what the customer seeks in a car, the customer’s bargaining position and concerns, and the customer’s preferences about financing and the car’s delivery date and location, without pushing extended warranties and such marginally useful accessories as a pre-installed coffee maker? Judges and jurors — like the rest of us — deal with annoying, pushy and uncaring telemarketers and salespeople, yelling and angry aggressive drivers, relatives who are in physical or mental health crises, yellow journalists, and relationships that go south. When a judge or juror is reeling from such recent experiences, s/he does not need salt poured into those wounds by lawyers and litigants being unnecessary boils on their butts, if not outright carbuncles and hemorrhoids.
Being human, many judges have prejudices, and, being judges, must find ways to transcend and eliminate those prejudices, and lawyers and litigants can help them on that path. They must strive to be calm and caring Solomons. If they cannot or do not want to follow such a path, they are in the wrong line of work. However, how many judges — even if jaded with their work — really want to leave their judgeships? They might be able to earn more in the private sector — except that plenty of lawyers do not earn the six figure levels of pay that federal judges do — but as judges they answer to nobody but themselves, administrative judges, judicial disability panels, and legislative bodies that can impeach them (and to voters in jurisdictions where judges are elected). They have no adversaries, but instead are referees and problem solvers. They have budgets that pay for law clerks and administrative staff. Those are great incentives to keep good judges on the bench, but irreparably unjust judges need to be removed from the bench, and lawyers need to be at the forefront of doing that, lawfully, as they are among those who are the most familiar with the judges and how to remedy unjust judging, starting with trying to persuade the judges to turn a new leaf, and proceeding to seek the judges’ cohorts to encourage the judge to turn a new leaf or leave the bench, and proceeding to turning, where appropriate, to judicial disabilities panels and even to legislatures to seek removal proceedings.
Judges are no better nor worse than anyone else. Like all of us, they used to wear diapers, as babies, and came into this world with all sorts of fears. Like most people, most judges still have fears of one sort or another, including the fear of not being seen as doing the right thing, although a judge’s obligation is to do the right thing, whether or not majority public opinion sees it that way.
When a client or witness is fearful of a judge, sitting there on high in black robes and tremendous authority, I sometimes remind my client or witness of how human the judge really is, and how we have nothing to fear nor cower about the judge. Yes, the judge must be respected, but the judge is there to be persuaded and not feared. A huge percentage of the population gets stagefright, even many lawyers. Overcoming stagefright is not helped by appearing before a matter-of-fact-looking and sometimes stern-looking judge. Stagefright gets reduced, though, when we take away our ego and have compassion for the judge and everyone else, while still persuasively stating our case.
The magic mirror will make judges more likely to help a litigant and his or her lawyer than the approach of barging into the courtroom like a bull in the china shop.