A Judge's Guide to Protecting Your Reputation
By
James G. Carr
See – www.abanet.org
One of a lawyer’s most important assets is his or her reputation. Each of us can create a good reputation by blending talent, intelligence, competence, and integrity. But we also risk destroying our reputation through deeds or words, whether deliberate or thoughtless, that undercut how others view us. Here I offer a list of steps that you can take to protect your reputation in the eyes of judges.
Most lawyers are late once in a while for reasons beyond their control. But problems arise when a lawyer is routinely late and, what’s worse, pins the blame on someone else. Whenever you are late, you convey a message that your time is more important than the court’s time. If the judge comes to believe that, it’s likely that you are going to get less attention from the court than you would otherwise enjoy. Courts value their time.
For many lawyers, predicting what they will be doing next week or month is difficult. Their time is at the mercy of the needs and schedules of others, including judges. Judges, in contrast, depend on predictability to make best use of their time. Without control over the course of the cases on their docket, judges cannot well serve the litigants and lawyers before them.
Being unprepared is a serious professional failing. Lack of preparation, especially if manifested during trial, can injure a lawyer’s reputation and his client’s well-being irremediably. Direct examination is no time for discovery of what a witness has to say; doing so on cross-examination is even more risky. Failure to prepare carefully for direct and cross-examination will put off both the court and the jurors. Jurors dislike an aimless, rambling, and seemingly unending examination—especially a cross-examination.
Most lawyers pride themselves on their oral skills and assume that they are just as persuasive when they put pen to paper. Sadly, that is often not the case. Turgid prose makes for unpersuasive arguments. Good writing pays handsomely. A well-written brief is always more persuasive, even where the facts and the law would favor the author of a poorly written brief. More than ever, your stature as an advocate depends not on how well you can present your case orally but on how well you do so in writing. Trials are few and far between. The outcome of cases increasingly depends on motions and briefs.
A misstatement of facts, even if unintended, stains your reputation for care and candor. Recite not just the facts that make your case. It is just as important for your credibility and the forcefulness of your assertions to acknowledge the unhelpful facts.
If you can’t prevail on your strongest contentions, you’re unlikely to win with ones that are trivial. Be selective. Focus on what matters and will make a difference. Don’t squabble over every bagatelle and bauble in the case. Pick the fights you need to win.
Some lawyers withhold their strongest arguments and cases until their reply briefs. This may seem to be an effective way to disarm the opposition and beat back its arguments. It is not. All it does is annoy the court. As a result, the court may sua sponte strike your reply brief, or it may give your opponent leave to file a surreply brief. The judge will view you as acting unfairly and unprofessionally, and will give less credence to whatever you have to say. Sandbagging is no way to gain a good reputation as a fair and competent advocate.
No judge likes to watch grown-ups being nasty to each other and calling each other names. Even if you genuinely believe that opposing counsel is being deliberately dishonest with the court, don’t call him or her a liar. Simply tell the judge what you believe the facts are and then prove them to be so. Keep in mind the old saying: “You draw more flies with honey than vinegar.”
Sure, you have a right to be heard, but then so does the other lawyer. You are less likely to get a fully attentive and sympathetic hearing if you interrupt while your opponent is in the midst of speaking. Let the other lawyer speak at will for whatever time the court is willing to listen. Be patient and attentive. When it’s your turn to speak, make good use of your time, anticipating that you’ll be able to do so without interruption (except from the court).
Judges generally believe that what they have to say is worth listening to. Interrupting the judge is unlikely to lead the court in the direction you wish it to go. At best, it shows that you believe that what you have to say is more important than what is on the judge’s mind.
Good lawyers do not see questions from the bench as getting in the way of their eloquence and the elegance of their arguments. On the contrary, even when the judicial question disrupts a train of thought or argument, the seasoned advocate welcomes the interruption. Judicial questions allow the lawyer to understand and respond to issues troubling the court. To be most persuasive, focus primarily on the issues the court raises and then turn to the ones you wish to present.
At some point, judges will form impressions of how well you know and follow the evidentiary rules. If you give the judge the impression that you either don’t know or care to follow the rules of evidence, you will be less likely to prevail when the outcome of an objection is a close call.
Some lawyers continue to argue even after they have won a ruling. Many more continue to argue after they have lost one. The message to the judge is that what the court has said either remains open to debate or doesn’t matter. Either way, the message is highly annoying. Once a judge has ruled, stop arguing and don’t ignore the ruling. Make your record and move on.
No judge likes to be reversed. For an advocate to tell a court that it has just committed reversible error is usually seen as an insulting threat. “Change your mind or else” is hardly likely to cause the court to change its mind. It is more likely to brand you as an impertinent would-be bully who has probably—and to the misfortune of his reputation, case, and client—forgotten who is in charge.
Some, but far from all, adverse rulings are an indication of judicial unfriendliness. If that seems so, ask yourself, as objectively as possible, whether you might be the cause of the judge’s apparent petulance.
Judges get paid to keep their tempers. Some judges habitually don’t deserve a paycheck. Others, even those whose judicial temperament normally is exemplary, occasionally erupt.
A well-founded reputation for integrity is the lawyer’s most important attribute. Whenever you do something as a lawyer that causes someone to doubt your candor and honesty, your professional standing slips. Let it slip often enough, and whatever good reputation you once had will be lost forever.
Copyright © 2010, American Bar Association.
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