Hope For The Best, But Prepare For The Judge

There is a never-ending cascade of new lawyers on the twitters complaining about how a judge did something awful in their case. Maybe it was a bad ruling, by which they mean a ruling that was completely wrong. Maybe it was a comment that they felt was outrageous, whether because it violated their sensibilities as to race or gender, or was just disrespectful. They tend to believe they’re entitled to be respected, and by respected, they mean treated with the respect they decide they deserve.

Ironically, they also tend to be obsequious to the handful of judges who hang around their twitterspheres being kind and supportive to young lawyers, basking in the gushing “likes” they get in return. Nary a critical word, these judges convey warmth and self-esteem to the new lawyers, who then walk into court only to have their “soul crushed” by mean, stupid, awful judges. The upshot, not that they always see it as the problem, is that their clients get burned while they return to their twitter crowds for succor and validation. Such awful judges, they emote. Such awful judges, the chorus responds, and you’re so wonderful, in four part harmony.

Michael Cicchini offers a way to fight back in Combating Judicial Misconduct: A Stoic Approach.

Even run-of-the-mill judicial incompetence can impact a lawyer’s ability to function. Smith recounts a colleague’s experience where the judge’s order was so detached from the rule of law that the lawyer was “[s]peechless with surprise.” She then had to “regain[] her equilibrium” before she was able to react. I can certainly relate to that experience—although I can’t claim to have always regained my equilibrium in time to effectively respond.

The “Smith” in this anecdote is Abbe Smith, neither naive nor inexperienced, and someone whose experience is shared by most criminal defense lawyers who’ve spent any serious time in the trenches.

Not surprisingly, less experienced lawyers and their clients are at greater risk of harm from judicial ignorance. “[Y]oung lawyers expect judges to be like their best, most able professors, nimble and knowledgeable. Appearing before a judge who is the opposite is a great challenge for them.” This challenge increases exponentially when the judge is not only incompetent, but also has a short fuse or is outright biased in favor of the state.

The old aphorism, “hope for the best but prepare for the worst,” might seem too obvious to say to experienced lawyers, but then, the point is that it’s hard for a new lawyer to imagine the “worst” when it comes to judges. After all, their lawprofs, the closest thing to an authority figure in their legal sphere, were always insufferably nice to them, obsessing over their feelings. And the few judges with whom they interact, or at least see, on social media never utter a discouraging word.

Then they find themselves in a courtroom and the judge is a dope. His rulings are not merely wrong, but outrageously dumb. His attitude stinks. He’s intolerant, nasty and openly biased.

I like and respect some judges, but not as many as I should. Too many are mean-spirited and arrogant, going out of their way to insult, ridicule, and demean those who come before them.

—Abbe Smith, Law Professor and Clinic Director

But reading these words, whether they overstate, or understate, the problem, is one thing. Being ready and able to deal with the worst thrown at you by the arrogant judge is another matter.

As Abbe Smith’s previous examples of judicial hostility and incompetence demonstrated, the defense lawyer is often caught off guard by acts of judicial misconduct. When the lawyer is blindsided this way, negative emotions such as shock, frustration, anger, and embarrassment make it difficult to formulate an effective and timely response in front of a full courtroom or jury. Given the potential for this type of negative psychological impact, it is imperative for the defense lawyer to develop the proper mindset before even stepping foot into the courtroom.

Blindsided by a completely unanticipated ruling, so ridiculously wrong and damaging to your case, happens. Not all the time. Not with every judge. But it happens. And no matter how much of an anticipation savant you are, it’s impossible to consider every possible way in which a bad ruling, a nasty comment, an outrageously damaging zinger that zaps your credibility in front of the jury, is going to come at you.

A vast variety of missiles are launched with us as their target.
If you want a man to keep his head when the crisis comes you must give him some training before it comes.

—Seneca, Stoic Philosopher and Imperial Advisor

Not everyone can be as detached, cold and heartless as me, such that the slings and arrows of judicial misconduct rarely give rise to “negative emotions such as shock, frustration, anger, and embarrassment.” But susceptibility to emotional reactions has not only become far more commonplace these days, but has become a desirable state as far as passionate lawyers are concerned.

The greater the passion, the more likely the emotional reaction. The greater the emotional reaction, the less capable a lawyer is of dealing with being blindsided and the worse the lawyer does in defending, deflecting, dealing with the unanticipated smack upside the head.*

Michael offers a means by which to address the “judge problem”:

The Stoic technique of greatest value to the defense lawyer is what philosopher William Irvine calls “negative visualization,” or the practice of envisioning the bad things that can happen before they actually happen. For our purposes, this means anticipating, before the lawyer even steps foot into the courtroom, the ways the judge could act unethically to the client’s detriment.

To some, this seems too obvious to need saying, but that may well be because experienced lawyers know what can, and too often does, happen in a courtroom, and it’s an inherent part of our preparation to anticipate the worst, whether to pre-empt it or to face it and turn it around to our advantage. But for lawyers for whom this isn’t second-nature, this may seem pointless and wasteful.

While this may at first seem counterintuitive—why should we spend time thinking about bad things that might never happen?—Irvine provides two very practical reasons for engaging in this Stoic practice. First, by anticipating how the judge is likely to commit misconduct, we may be able to “take preventative measures” to avoid the problem entirely. Second, “no matter how hard we try to prevent bad things from happening to us, some will happen anyway.”

It’s hard, if not impossible, for anyone to have a sufficiently fertile imagination to adequately anticipate every potential absurdly bad ruling, nasty comment and open display of bias they will face in the trenches, but by recognizing it may happen and girding one’s loins for the incoming missiles, one is at minimum caught less blindsided and more capable of facing the problem tactically rather than emotionally. And lest anyone forget, when the lawyer fails to deal well with the judge’s missiles, he may be angry and embarrassed, but it’s the defendant who ultimately suffers.

*To add an additional wrinkle to Michael’s scenario, it’s not always a problem with the judge being stupid, arrogant or mean. Sometimes, a lawyer has earned the unexpected missile. Maybe your theory of defense wasn’t nearly as brilliant as your pals told you it was. Maybe it’s not the judge who’s dumb, but you.

Maybe your behavior felt fine to you, but failed to reflect the decorum expected of you in a courtroom, or the respect you owed the court. The failure to be brutally honest with yourself about what you should have done better will certainly bring some pain down on you from the bench, but don’t mistake your failings for a mean, stupid judge. This isn’t a judge problem, but a you problem. You can blame the judge, but it’s not going to make you any better as a lawyer.

26 thoughts on “Hope For The Best, But Prepare For The Judge

  1. Dan

    It’s interesting, and somewhat disturbing, how a judge being rude or wrong is described as “misconduct” and “unethical.” It isn’t unethical to be rude. It isn’t misconduct to issue a mistaken ruling. There are extremes in both cases that could qualify, but I rather doubt it’s the norm.

    1. SHG Post author

      Judicial temperament implicates an ethical consideration in the model code (for example) as reflecting adversely on the appearance of impropriety. That said, what constitutes “rude” is usually a personal sensibility, and what constitutes a mistaken ruling is why we build appellate courthouses. On the other hand, I’ve had judges say things that were so far beyond the pale, and make rulings so absurd, as to be beyond any acceptable norm.

  2. James

    “The record should reflect that the Court is shouting at defense counsel, rolling it’s eyes and making smirky faces at the jury.” Making a good record increases the odds that the Pelicans will get it sooner or later, and reminds your client whose side you are on. Cry into your cups on your own time. Cuppa single pot still Irish whiskey does it for me.

    1. SHG Post author

      The point isn’t what to say, as much as the ability to tactically address the problem rather than start to cry and shake.

      1. Kathryn Kase

        Right on, Scott.

        When I was a young lawyer, Ray Kelly in Albany, NY, taught me to always ask myself, “If I do x, what will the prosecution do in response? And how will the judge respond? And what will I do in reply?” And he told me to go further with more round of such questioning. It’s only by such strategic thinking that you develop strategies to stay ahead of the prosecution — and to be more prepared for whatever the Court might throw at you.

          1. Eddie S.

            I don’t know Ray. in fact I never heard of him so I have no dog in the fight. You don’t have to be fan of the guy to appreciate Kathryn’s comment. It was valuable and she did the right thing by providing the source.

            1. SHG Post author

              There’s a reason war stories are generally frowned upon here, and had Ray’s name been omitted, it would have made no difference to KK’s comment. You think it was valuable? That’s nice. Start a blog and post whatever you want. You don’t get a vote here.

    1. Hunting Guy

      It’s pretty bad when a fictional character knows more about life than a living lawyer.

      Hercule Poirot

      “Ah, but life is like that! It does not permit you to arrange and order it as you will. It will not permit you to escape emotion, to live by the intellect and by reason! You cannot say, ‘I will feel so much and no more.’ Life, Mr. Welman, whatever else it is, is not reasonable.”

  3. Patrick Maupin

    My research has taught me that the negative impact of bad judges on unprepared lawyers is nothing compared to the negative impact of bad judges on unprepared pro se litigants.

    Judges hate seeing pro se litigants because (among other things) they are mercurial and their understanding of the law is incoherent. This sometimes causes bad judges, or even good judges having bad days, to rule badly. Which causes the pro se litigant to craft an even more incoherent pleading, where he purports to sue the judge, all the appeals justices, and the state supreme court.

    Yeah, there are a lot of crazy pro se litigants. Not all of them started out that way, but unless they have an exceptional temperament, the system will help them get there.

    1. SHG Post author

      This isn’t about pro se litigants, PM. Pro se litigants present very different issues, particularly so in crim cases.

  4. Fubar

    Maybe your behavior felt fine to you, but failed to reflect the decorum expected of you in a courtroom, or the respect you owed the court.

    From my soon to be forgotten treatise, “How starving lawyers can drive the evolution of modern courtroom decorum”:

    Instead of “Your Honor”, “Hey, Dude”
    Is old-fashioned, and nowdays just rude.
    So, step up and say
    “OK Boomer” today,
    If you think Nutraloaf is great food!

    1. Grant

      I wish that it was the norm
      To have Fubar’s skill at the form
      But I make people sick
      With my limericks
      So I’ll stop now and avoid further harm

      1. SHG Post author

        There’s a reason I rarely reply to Fubar, because nothing I could write wouldn’t look awful after his displays of brilliance.

  5. Jim Tyre

    It’s hard, if not impossible, for anyone to have a sufficiently fertile imagination to adequately anticipate every potential absurdly bad ruling

    You mean like the time I got an e-filed order from a federal judge that had literally nothing to do with my case? (Apparently, the clerk had botched the e-efiling association. After I recovered from the heart attack, I pointed it out and it was fixed. I didn’t like the new Order, but at least it was for my case.)

  6. KP

    “For our purposes, this means anticipating, before the lawyer even steps foot into the courtroom, the ways the judge could act unethically to the client’s detriment.”

    Horrors! They might have to have a toolbox meeting and discuss what could possible go wrong and what what to do about it before they start work..”
    Just like plumbers and builders and all the real people in life!

    1. SHG Post author

      What experienced people (of pretty much any profession or occupation) take for granted is an epiphany for new lawyers today.

  7. F. Lee Billy

    Judge not, lest ye be judged. Pretty soon, judges will become obsolete. Many of them are already. We have known a few imbeciles in black robes. We hate them with a passion unimaginable. The ones who are not, frequently say, Case Dismissed, or I’m dismissing the charges. How often does that happen? (Not too often, trust it!)

    We wonder what Mort Zuckerman would say about this? Remember him? (Rymes with Zuckerberg.) Smart guy, and also a lawyer. Did he take the bar exam? Nooo, he decided the Law was not for him, took a left hand turn in the road, went into the REIT busyness, and the rest is history. Smart move.

    Mort was making multi-million dollar deals at the same time The Donald was fighting off bankruptcy and cooking the books. While Donald was writing his utterly stewpid book, Mort was knocking em dead with real deals. He bought The Daily News forgodsake. Who in his right mind would do something stewpid like that? I mean, like really! What was he thinking?

    So why is Mort not Prez? Well, the dirty little secret is, he’s Jewish,… very schmart and earned it the hard way, which is more than we can say for the current president who refuses to release his tax returns.

    Full Disclosre: We voted for Orange Hair for the same reasons a lot of others did. Will we vote for him again? Probabably not. Bernie SandersMan and Pocahontas are our team. We like others as well, some of whom have dropped out. Can U say, Cory “The Bookworm” Booker?

  8. Skink

    The first rule of trial lawyering, civil or criminal, is to be prepared for anything. The prepared lawyer is successful; the unprepared is not.

    If a lawyer can’t or won’t comply with the rule, there are other ways to make a living. Whining later is not the road to success.

    1. SHG Post author

      I think the question is less about the merit of preparation than what one prepares for and how one does it.

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