Whether Atlanta lawyer Ella Hughes intended to make a point, or just let her feelings show, it clearly didn’t work out well for her. Sure, the Georgie Court of Appeals reversed her contempt citation for the judge’s failure to give her the opportunity to purge the contempt before executing sentence, but that’s hardly vindication and the price, a $1000 fine and 10 days in jail, was steep.
Hughes’ offense? Looking at the judge with a sarcastic expression.
It doesn’t matter whether the judge, A.J. “Buddy” Welch Jr., handled the matter well. It doesn’t matter whether Buddy deserved Hughes’ disdain. It doesn’t matter whether Buddy deserved worse, as is often the case.
Rule of thumb: Offending the judge rarely* helps your client. It often doesn’t do much for you either.
While I could hardly divine what really happened with Ella Hughes that day, or what she was thinking, I have seen a trend in young lawyers of allowing their displeasure with the judge’s rulings or actions show on their face, and sometimes in the words that come out of their mouths. Do they not understand that their job is to persuade this person to do what is in their client’s best interest, not vent their personal spleen?
There appears to be a mistaken understanding of the relative nature of the relationship in a courtroom. The young lawyer is not the functional equal of the judge. No matter what your professor taught you at Legal Theory Law School about due process, you are not entitled to express your personal feelings about the judge’s decision. You exist in the well as an advocate. The judge, for better or worse, sits as a decision-maker. Pissing off the decision-maker is not the most effective way to advocate.
As young lawyers may already be aware, not all judges are temperamentally or intellectually suited for the position. Some are elected because they look remarkably like Judge Wapner. Others for worse reasons. But they still wear the robe and you don’t. This is an important distinction, whether you want to acknowledge it or not. You argue, they decide.
A friend of mine tells a story about his arguing a point before a judge in Brooklyn Supreme Court. After getting a little carried away with the judge’s inability to understand a nuanced point of law, he told the judge that the problem was the he, the judge, didn’t get it.
The judge responded, “Counselor, are you looking to be held in contempt?”
The lawyer responded, “Not at this time, your Honor.”
No client ever enjoyed a benefit from his lawyer being held in contempt. Don’t forget why we’re there, and no matter how awful you think a judge’s decision or action might be, don’t get held in contempt. Make your argument as firmly and clearly as possible, but know enough not to go over the line. It helps no one.
* There is one caveat: When the judge is about to something that will cause irreparable harm to your client, all bets are off. Sometimes, taking a bad situation and making it worse will result in quicker and more effective review than allowing the normal course to play out. Be very careful before going down this path, as it may be a path of no return.
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There needs to be an effective oversight over these Judges who violate law for bias and favoritism. Every profession must be available for an effective oversight. The Justice System is not broken, it is obstructed when the ‘common’ person cannot obtain a fair and just ruling, decision. We spend our money, time, and are stressed to bring our cases to court, it is our right to have our cases heard and all our evidence presented. In CT Probate/Juvenile/Family courts, this is NOT happening on a regular basis
Well, most of the time if you are representing a disfavored litigant – meaning criminal defendants, personal injury plaintiffs, or any lone individual against an institutional litigant – you have nothing to lose by confronting the judge. He’s generally determined to screw you over anyway.
But he may not realize it. That’s the insidious nature of bias: it’s not entirely a conscious thing. Sometimes the only way to overcome it is to put it out there at the risk of offending the judge, in the hope that the initial offense will give way to something a little more considered.
But really going after a judge? Yeah, pick your battle really carefully. You can’t really do that more than once or twice in a career. And you better be 100% right, too.
Nothing to lose? Sarcasm and smirks, you’ve already lost.
1/ Street smarts says you’ve lost. Clearly, that lawyer would not win at a street game of Playing the Dozens, a highly sophisticated battle of words and emotions, performed, like trial advocacy, in public.
2/ Neuroscience says you’ve lost. The brain disengages various needed thinking circuits to privilege the emotional ones. Not good for the case and the client.
3/ Competitive sports psychology says you’ve lost. Played in public, needing every edge, like sports, trial advocacy requires GAME FACE. Get one. Put it on. [Keep it on until you reach the comfort of a bar, surrounded by your posse.]
I’m not advocating sarcasm and smirks. But litigating is not poker, either. A game face is pretty much irrelevant to the outcome, not that that’s an argument for falling apart emotionally or otherwise.
The reality is that with a disfavored litigant you’ve “already lost” with the judge before you even start. That’s the reason we have juries.
There may be times, however, when a jury is not a viable option and you have to rely on a judge. It’s a terrible position to be in, but it happens. How do you get the judge to do something the whole system, and his whole career, tells him he must never do? “Competitive sports psychology” doesn’t apply where your real opponent is the referee.
You have to try to bring about one of those rare life moments where the judge asks some very deep questions of himself, calling a lot of things he’s emotionally invested in into question.
It’s not a game. You’re lucky if you can pull it off once or twice in a career. And you shouldn’t even try unless you have to.
Good sound advice & point taken regarding to never piss off God, for he can strike you down with one blast of the almighty gavel. Makes one wonder how many cases have been & will be overturned / reversed on the grounds of judges gone bad?
The ones trying to make a name for themselves by being a hard ass & going contempt crazy when a tounge lashing would suffice are building and or maintaining this rep. Doing so, in order to prevent the Matlocks from calling them a Jackass every other day. Sometimes a jackass wants to be a known as a donkey. Any hoo, they were once lawyers / attorneys themselves & I don’t think we could handle the truth
Jumping nimbly over the gendered references to “judge,” I walk into a courtroom differently, it appears. Having represented the downtrodden for decades, zealous advocacy, for me, requires finding the always-available way to find the obscured ways into a judge’s or juror’s or prosecutor’s better side.
I regret my metaphors were not useful to you and that your own experience has been, to date, that you are “lucky if you can pull it off once or twice in a career.”
It’s good that you’re so confident about it. I don’t mind saying that litigating for the downtrodden is extraordinarily difficult, but maybe that’s just my experience and others’ experience is different. And maybe that just means there’s something wrong with me and my approach. It wouldn’t surprise me.
What’s up Doc.? Regarding the original idea behind the post, (don’t do it – it could backfire.) I’ve seen the game up close & personal. It’s not pretty when a 100 year old judge dozes off & wakes up to sign his name with a “Happy Face” in Open Court (judge’s chambers.)
I’m buying the Jury Talk DVD for the better three thirds of the family for her B-day. Q. Are you or do you know anyone in the ghost writting business? If so, have your people contact my people for a sit down. [email protected] Thanks.
Well unfortunate the right of free expression has no place in a court of law, as strange as it may be at least it wasn’t a hard nose cop with a Tazer with a real jolt from god.
You have proven what countless lay people have been shouting for years. Judges are prone to bias, revenge and to decide cases based on petty, immature and personal whims. Tragic. We, the tax payers, foot the annual bill, now over six billion dollars, to make justice a real possibility for everyone, rich or poor, connected or not. These spoiled brats, some of them (way too many of them) not all, have and will erode our confidence in the integrity of our courts and sooner than later, bring our nation down with them. For the judge who wasn’t “getting it,” do more preparation or find another job. Your position is sacred, you ain’t.