Sunday, June 8, 2008

What Judges Expect from the Lawyers Who Appear Before Them

Having attended my share of motion calenders, special set hearings and judicial receptions and luncheons, I have been afforded the opportunity to hear what judges expect from the lawyers who appear before them. What never ceases to amaze me is how uniform their expectations are. Some are obvious. Others are not. However, they all bear repeating:

Be respectful to the court. Never interrupt the judge or speak over her. Surprisingly, it happens more than you think.

Be respectful to opposing counsel. Never interrupt, belittle or berate opposing counsel. Also, never address opposing counsel. Your arguments are always to be directed to the court.

Don’t mislead the court. If the court misunderstands the facts or misconstrues the law, set the record straight. The misunderstanding may benefit your client, but it is an underhanded way to get the upper hand. And by the way, the judge likely will find out that you snookered him. Nothing upsets a judge more than feeling taken advantaged of by the attorneys that appear before him.

Do your best to work things out before appearing before the judge. Most judges agree that many of the motions that land on their desk, particularly discovery disputes, should and could have been worked out without the need for a hearing. Attorneys need to treat the court for what it is - a last resort after they have exerted every effort to work things out on their own.

Don’t waste the court’s time. Judges have many more cases on their dockets than they should. So, not only should not you set for hearing motions that you should be able to resolve with a phone call to opposing counsel, you should make every effort to get to the point on those occasions when judicial intervention is warranted. Cut that ten page motion to six pages. Cut that six page motion to three. Reduce those five arguments to three and those three arguments to two or even one. Figure out the crux of your argument, articulate it succinctly and then stop talking. The court will find your brevity refreshing.

Judges talk to each other about the lawyers that appear before them. Many judges know that lawyers compare notes about the judges they appear before. Guess what? Judges compare notes about the lawyers that appear before them. That lawyer who was rude and obnoxious, who thought that it did not matter because what does one judge’s opinion matter? Well, that judge, who was taken aback by that behavior, may have share the experience over lunch with his colleagues, who will remember those comments the next time that attorney appears before them. Everything we do before a given judge may affect how every other judge perceives us.

What you do reflects on your firm. Just as what you say before one judge may affect how other judges perceive you, what you say may affect how that judge and other judges perceive your firm. You are your firm every time you step before a judge. Your reputation is inextricably tied with your firm’s, and everything you say and do either improves that reputation or diminishes it.

Be self-deprecating. When you think of arguing a motion, humor probably does not come to mind. Of course you should never joke at the expense of opposing counsel or the court. But at times, injecting a bit of humor goes a long way in reducing the tension and stress, particularly if it is self-deprecating in nature.

Judges are no different than the rest of us, and they have the same expectations as the rest of us. Just as we expect good service with a positive attitude when we go to our favorite restaurants or retail stores, judges expect that the lawyers who appear before them to provide good service - to be prepared. They also expect them to do it with a smile, namely, to act professionally.

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