By Dr. Ken Broda Bahm:
Our trial system is set up so your adversary is on the other side and your judge is neutral. The courtroom layout illustrates that relationship, and trial procedure supports it. But at times, advocates can find themselves treating the judge as the adversary. Few examples rise to the level of presumptive GOP nominee Donald Trump’s repeated attacks against Gonzalo Curiel, the federal judge in two cases involving the business mogul’s for-profit enterprise known as “Trump University.” Trump has said that Judge Curiel has an “inherent conflict of interest” because Trump is “building a wall” along the Southern border, and the judge is “a Mexican” (actually born in Indiana). There is good reason to believe that Trump’s comments have more to do with politics (or maybe psychology) than with law, because his legal team has made no motion for the judge to recuse himself. That kind of criticism is, thankfully and wisely, pretty rare. The more common scenario occurs when the judge just seems to be leaning toward the other side’s arguments and you are trying to talk the judge out of it. In oral argument, for example, the judge may start firing arguments back at you, either in order to test your position as a devil’s advocate, or because she or he genuinely disagrees with you. In those settings, you argue back.
Unlike Trump’s case, those arguments are nearly always polite and deferential to the judge. Whether “your honor” seems to be on your side or not, a tone of respect is needed. At the same time, even a polite battle with the judge can feel a little futile or counterproductive. In fact, framing it as a battle between you and the judge puts you at a disadvantage because the judge has more power than you do. In addition, there is the danger that the judge might be setting aside a neutral and evenhanded mindset in favor of an advocate’s mindset. So what do you do when the judge starts to argue back at you? In this post, I will share a simple approach for reframing the judge’s comments so it remains clear that you are arguing with the other side, not with the judge.
In a recent article, Proskauer attorneys Bradley Bobroff and Timothy Mungovan share six tips for trying a case before a hostile judge. The first tip is to resist the urge to engage. “That is a battle the trial lawyer will lose every time,” they write. “It’s like a nun fighting a ninja.” But the dilemma is that you have to zealously represent your client, and that means answering the judge with specificity, logic and passion, showing that your reasoning is better. So how do you prevent that from becoming a direct battle between you and the judge? I think it comes down to how you frame it. If you just simply argue back at the judge, then you create the appearance, and possibly the reality, that the judge is now your adversary. But if you take a couple of steps to explicitly alter the context of your argument, then you can try to keep your focus on the other side and to keep the judge within a neutral role.
This is best explained using a couple of examples: one bad, and one better.
The Bad Example: Arguing With the Judge
Attorney: Your honor, this motion on waiver does not have merit. My client had no definite knowledge that…
Judge: But the February memo seems to clearly indicate knowledge of a breach dating back three years prior, doesn’t it?
Attorney: No, your honor, that’s wrong. What you’re not taking into account is that the February memo asks questions, but doesn’t state a position, and you have no reason to believe that the board knew about its contents, anyway.
Judge: But Ms. Green, the author of that memo, reports to the board….
Attorney: Not every detail. You don’t have evidence that…
Judge: But that’s her job! She reports to the board. If she kept them in the dark, that is hardly a defense to waiver. At this point, I’m going to grant the motion.
The Better Example: Arguing With the Other Side In Front of the Judge
Attorney: Your honor, you do not have the evidence before you that would allow you to accept this motion on waiver. My client had no definite knowledge that…
Judge: But the February memo seems to clearly indicate knowledge of a breach dating back three years prior, doesn’t it?
Attorney: Well, your honor, that is their position. But they are not showing you where that February memo indicates knowledge, and not just questions. And even if it did indicate knowledge, they have shown you no evidence that the board was ever aware of the contents of this memo.
Judge: But Ms. Green, the author of that memo, reports to the board….
Attorney: They have argued that as well, but they are asking you to assume that this means she communicates everything. They have given you no reason to believe that.
Judge: Okay, I am going to review the evidence and I will defer ruling on this motion for the time being.
The first example represents a direct argument between counsel and judge. In the second example, however, the advocate is doing two things in order to resist engaging directly with the judge in the argument.
One, the advocate consistently frames it as “their argument,” meaning the other side’s position, rather than “your argument,” meaning the judge’s. Of course the judge knows it is the other side’s position, but the reminder helps in clarifying that the argument is with the other side, not with the judge.
Two, the advocate repeatedly reminds the judge of her neutral role, not to advocate for the other side, but to decide whether the other side’s argument has merit. The advocate clarifies that it is the other side’s — not the judge’s — responsibility to prove the point. Again, the judge knows her role, but the reminder of the correct frame helps to keep the argument in perspective.
Of course, neither example rises to Trump’s level of disrespect. But when you are trying to appeal to a judge, I believe that the second example is better in keeping it clear that the judge is the judge, not the adversary.
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Other Posts on Judicial Persuasion:
- Practice the “Three P’s” of Oral Argument: The Example of Paul Clement
- Know Your Judge…Through Analytics, Not Anecdotes
- Leading Motives and Trailing Personal Stories: Lessons in Jeffrey Toobin’s “The Oath”
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Image Credit: 123rf.com, used under license (edited)