Working with Family Court Judges
I recently attended this year's annual AFCC (Association of Family and Conciliation Courts) Conference in Orlando. Two Canadian jurists put on a workshop entitled "Dealing With Difficult Judges," and they kindly gave their permission to share their materials with you. Many thanks to the Honorable Carole Curtis and to the Honorable Roselyn Zisman - both family court judges within the Ontario Court of Justice system. I summarize their observations and suggestions here, and add a few of my own.
As these two bench officers point out, judges like the rest of us can be difficult and reactive at times, and it can be quite challenging for attorneys and pro se litigants to know how to prepare for, and best behave within, the sometimes edgy or emotional atmosphere of family courtrooms. This tension, if not understood or managed correctly, can have negative consequences in terms of outcomes and more. My intention is not to imply criticism of our bench officers. Being an effective judge day in and day out requires vast knowledge and a patience and equanimity that would challenge even a Mahatma Gandhi.
Here are some pointers for how not to aggravate your family court bench officer, and a few thoughts about what to do if that happens, despite your best efforts. The opinions expressed herein are not one size fits all. I also want to have a dialogue about how to make the job of family law judges easier for them, or - to put it another way - to discuss a bit about how we might help them to help us.
Suggestions for Interacting With Family Court Judges
Here are some 25 suggestions that, if followed, will vastly improve your family law court experience, and possibly win your case!
Rule 1: Be Prepared
Judges have little patience with attorneys, and self-represented litigants, who aren't prepared when they enter the courtroom. Many litigants don't seem to know what they are asking the court to do, why they are asking for it, and what the best legal or factual grounds are for the orders requested. Courts everywhere, but particularly here in California with the passage of Family Code section 217 (which requires live testimony hearings upon request) , are overburdened. Judicial resources are not sufficient to meet demand in these budgetary times, and this places a premium on directness and efficiency. Economic limitations also makes judges a lot crankier than if they had more resources to manage their caseload and calendars.
Depending on County size, wealth and population, California Family Law Judges typically have between 20 and 35 or more matters on their morning calendars. In the afternoons they are often holding evidentiary hearings and trials. If they are to move through these calendars by the end of the morning, brevity and efficiency becomes exceedingly important.
Therefore, one of the biggest mistakes that agitates judges is parties or lawyers who aren't prepared and so can't present their cases with clarity. If a lawyer doesn't appear to care overmuch about their client's case, then why should a judge? Lack of preparation, especially for lawyers, is a cardinal sin.
Rule 2: Be Prepared For This Particular Judge
In jurisdictions with direct calendar assignments, where a judge is assigned to a case for all purposes or for all purposes possibly until the case is reassigned for trial, learn about the particular bench officer(s) who presides over your case. Information allows you to make useful assumptions about a particular judge's attitudes and policies.
As Judges Curtis and Zisman note, the best judicial officers are predictable and consistent in their rulings. "A judge's value to the public as a judge is in direct proportion to the ability of the lawyers who frequent the court to predict how the judge will deal with a particular issue." I find this to be so true in my personal experience. Lawyers who know how judges tend to rule on a given issue can set their client's expectations realistically. Armed with such knowledge, both sides are in a better position to have productive settlement discussions that avoid a "crapshoot" and the associated risks and expense. They don't potentially infuriate bench officers with weak arguments that, it is known, such judges may rarely accept.
Lawyers who are practitioners in any given court usually have good insights into local judge's attitudes. They may also be aware of information about a judge that is not generally available to the public, like their expertise, practice focus, and reputation before they took the bench. Knowing that while a lawyer your judge participated in a case that generated a published appellate decision on a move-away case, for instance, could provide you a wealth of ideas on how to tailor your presentation. Likewise, knowing whether a judge has been reversed is useful for making sensitive presentations.
Pro per litigants should consider observing a judge going through her calendar over the course of one or more days. You will learn tons about their judicial attitude from watching them in open court, and you may witness other parties get scolded or reprimanded for missteps and so avoid the same mistakes. A simple but classic example is the family court litigant who brings a small retinue of family members who are there to provide familial support, some of whom cannot sit still without gasping, shaking their heads violently, or sobbing.
Rule 3: Let the Court Clerk Know the Day Before If the Case Will be Continued
Sometimes one or both attorneys or parties intend to seek a continuance of a hearing, possibly because they want to discuss settlement but often because one or both are not ready to proceed or have late papers to submit.
Judges have very different attitudes towards continuances, particularly where they have already read the materials and then are faced with a continuance request. Lawyers who know that a case will not proceed are well advised to contact the courtroom clerk at least a day in advance to give a head's up - otherwise, they may wind up with a judge who justifiably feels "put out". Some allow self-represented parties to give advance notice of agreed upon continuances, but the other side will need to confirm it. Often messages must be left on the clerk's answering machine, and you may not know that number or whether messages were received or acted upon.
Where both sides have attorneys and a particular judge is known to permit it, counsel should always let the court know one or even two days in advance that the hearing is not expected to proceed that day.
However, most self-represented parties will not know how to reach the Judge's clerk, so this one is really for lawyers.
Rule 4: Look At the Local Court Rules, If Any, and the Applicable California Rules of Court Which We Discuss in Detail on This Site!
Some counties or individual courts have local rules; many do not. Most judges have their own rules and styles, often never to be found in written form. It never hurts to ask the Court clerk, when the judge is off the bench, whether that courtroom follows any specific preferences, customs, or rules of procedures.
The state-wide source for procedural rules impacting California Family Law (and Juvenile cases) are the California Rules of Court, beginning with Rule 5.100. Rule 5.111 is one of the immediately most important, since it deals with initiating common OSC and Motion requests for custody, support, etc., and sets forth the length of declarations, etc. Lengthy declarations for a judge who has possibly 15 minutes to review your materials is always a bad idea - he or she may not read them, and some judges will consider sanctioning you. These rules apply to all family law matters in all California courtrooms.
The Riverside County Local Rules pertaining to Family Law cases can be found here. Start with Title 5. I discuss these in more detail below. The Los Angeles Family Court Rules can be accessed here. Basically you ought to go to the County website where your case is filed and look for the local rules for that are applied.
Rule 5: Talk to the Judge, Not the Other Party or Lawyer
The time to discuss your case or argue with the other side is before you enter the courtroom. It drives judges nuts when two lawyers, two pro se parties, or any combination of them begin to argue at counsel table as though the judge was not present. Keep your focus on the judge, and generally avoid looking at the other party except for emphasis. Never address the other party directly.
Look the judge in the eye, but don't eyeball him.
If you bring witnesses or support people in the courtroom, tell them in advance to keep control of themselves. This means no interruptions, no head shaking or head nodding, no gasps, and no agitated movements. It is natural that such people have an emotional investment in the outcome. However, if they act in an uncontrolled fashion, that may affect the court's evaluation of you. I don't have many times I told family members this, only to watch them go utterly vacant and stupid because their emotions get out of hand!
Rule 6: Never Assume the Court Has Read the File, and Never Ask Whether They Have
Never assume the Court has read your pleadings. But asking the question not only embarrasses the court, if they answer that they have not read it and you wind up getting what you wanted, you are inviting an appeal since appellate courts in California have reversed trial courts for ruling on matters where they've admitted on the record they've not read it.
Instead, start your presentation as though the Judge has not read the materials. Most judges will interrupt you to advise you when they have read it. Be nimble. At the same time, understand that the court only has enough time to listen to summaries of information, not the entire case. You need to know what your highlights and sound bites are, and they should be presented in as orderly a way as possible. Having outlined these in advance is very helpful in the heat of the moment, where you become distracted by some exchange. Use a notepad in a way that triggers your memory of the points you wish to make. One of the most common mistakes for self-represented parties is not to have thought through their presentation in advance. Stuttering around hurts your believability, and makes you seem emotional and therefore that you are spinning a story.
Rule 7: Make It Easy for the Judge (This Is a Biggie)
This is one of the greatest challenges, particularly for young lawyers and self-represented parties. How to know what matters and what does not? You want to help the judge to help you, and in doing this you need some ability to discern what is legally or factually important to them.
The first and best opportunity is to do this is via the papers that are filed when your OSC, RFO, or Motion is drafted, or when replying to the other side. Here it is extremely important to know the local court rules, if any, as they pertain to how paperwork is prepared plus, use common sense. We've set forth the California Rules of Court in our Website and updated them as the years wind on since this article was first written almost 7 years ago - use our on-board search engine for the latest cutting edge information!
These papers give the court the first and sometimes the defining impression of the case. They are probably your biggest opportunity for persuasion. Their purpose is to instruct the Court, and to explain the justness and reasonableness of your position. Backbiting and attacking the other side, or their attorney, and engaging in irrelevant and personal argument, is a bad practice. In declarations consider inserting spreadsheets, Excel boxes, and tables where a point can be made visually and simply.
Most judges are older people, and their eyes are not those of a 30-something adult. Double space your writings; use at least 12 point font or better yet 13 point if you are not otherwise exceeding the allowable page numbers for the various pleadings; some judges insist that Courier or Times Roman be used; others insist that you use recyclable paper. Never handwrite your papers where you can avoid it, except possibly in cases involving domestic violence restraining orders requests (since the Judicial Council forms are handwriting friendly). Number sequentially the paragraphs in your declarations. Organize your work for ease of access.
Avoid using CAPS or Bolding, except possibly for titles and organizing sections of your written submissions, since many of us today interpret that as shouting. Underlines and italics may work better.
The likelihood that the court will fully read your pleadings increases proportionately with its brevity and readability. Most judges consider more than eight pages to be way too long. Reduce and edit your work, and then reduce an edit it some more. Use active verbs and cut, cut, cut unnecessary verbiage (not like I do in this Blog!). Similarly, when the other side submits a lengthy or inflammatory pleading, resist to impulse the respond in kind. Be surgical. This can be a tall order in family law cases, since there is so much emotionality and reactivity in "he-said", "she-said" exchanges. Respect how little time a court has to review one of twenty plus files set for any given calendar.
Do not include evidentiary submissions in pleadings, and consider tabbing or page numbering your exhibits and then referencing those page numbers or tabs in your declarations (by page, paragraph number, or line number). Remember, if the judge can't find what you are referencing, they will not likely read it. This is a tough call, in my experience, because it is good practice to provide evidentiary support for claims you make and positions you take but only if you expect the other side to deny what your attachments otherwise set forth - i.e., you don't need to attach a copy of a lease agreement if no one is disputing that lease! Many attorneys and most all pro pers I've encountered submit way too much paperwork, and I confess I've done it too. But, I guarantee, a thick file is a file that won't be read by the bench officer. Less is more, and reflects sophistication. Sophistication implies knowledge - and knowledge is credible!
Some courts will allow counsel or the parties to contact the clerk in advance of hearings to warn that the issues are more complex than normal. This may be a wise move on your part.
Rule 8: Be Sparing with the Exhibits You Attach to Your Pleadings
People attach dozens or hundreds of pages of exhibits to their declarations, and they often don't even know why. Especially lawyers. Think about how long it would take for someone to read this stuff, and whether it is even necessary. I reiterate: If a fact is not disputed, you don't need to attach a ton of paper to prove it. You can simply make the statement in your declaration. Otherwise, your judge may be pissed!
If you do need to attach a lot of exhibits, be sure to Bate-Stamp them. This inserts numbers on each exhibit page so that you can reference a specific page. Imagine that you've attached 100 pages of bank statements to your declaration, but you only want the Court to look at the 45th page? How will they find it in the mass of pages if those pages are not numbered? Count to the 45th page? Nope. They will be aggravated instead with you, and say (or think) "I am only Human"! Reference the one page number that is important in your declaration - and maybe only attach that one page, except when otherwise necessary for context.
Rule 9: Always Show the Other Attorney or the Other Party, If Not Represented, Anything You Want the Judge to Look At
Self-represented parties, particularly it seems when the other party has an attorney, seem to think it is proper (and even clever) to not show the other side documents they want the Judge to consider. This is improper, and a big mistake that does not reflect well on you. It will aggravate your Judge. Ironically, dear Counsel or Self-Represented Party, you appear much more sophisticated if you do just the opposite; provide the surprise documents before the hearing (except when it is true impeachment evidence which is a challenge to use when there is to be no testimony taken)! Control your resentment and curb you passive-aggressive, or just plain aggressive, impulses - your success is largely linked to appearances, though it is genuine appearances that carry the day.
And you may foil requests to continue the hearing that you want a resolution to, as well.
If you want to discuss something that is not already in the file with the Judge, at a minimum show it to the other side and if you really want to look smart and be smart, give them a copy as soon as you see them (not just before the case is called); better yet, follow the next rule. Note, however, that if there is going to be testimony taken at your hearing and your exhibits are purely for impeachment evidence (but be right out this), you might hold them back to show them to the witness on the stand - but only in that setting!
Rule 10: Meet and Confer With the Other Party or Their Attorney Before the Hearing Per Rule of Court, Rule 5.98
Read California Court Rule 5.98 and attempt to comply with it, even if the other side refuses. This is an excellent way of attempting to exclude their evidence where they failed to follow this Rule, but you did!
Rule 11: Avoid Head-Butting With the Judge (and the Other Side)
Whether or not a judge seems difficult or cranky, it does not help to get into a head-butting contest because you just can't win it. Head-butting may be a "kiss of death" for an advocate; the issues themselves have degenerated into an ego contest, and if you are in court to serve your ego you will likely have an unpleasant outcome. Remember, people are watching, including court staff. The Judge not only knows that she is the supreme power in the courtroom, she has her dignity to protect. Confrontations with judges suggests a battle between equals, and you are not equal. It also implies a winner and a loser. If you head-butt with a Judge, you are asking them to prove to everyone present who is in control.
Head-butting might well begin with an attitude on the part of the judge. If this occurs, move into "damage control." Immediately lower your tone. Avoid flailing hands or arms. Speak evenly, slowly, and respectfully. This may defuse the situation before it becomes impossible to be redeemed. As Judges Curtis and Zisman put it "You must do whatever you can to end this contest. Consider a retreat, whatever that means in the circumstances. Move your reaction into this range...: be calm, be measured, be focused, and be polite (be unfailingly polite)." With a particularly difficult judge, the hotter it gets the calmer you must become.
A cautionary note here: Many judges I know respect an advocate or a person who will stand up to them, and not simply fold because there may be some debate. So much depends upon your tone and style even as you perhaps stubbornly, but calmly, present your arguments or evidence. Hence, do not take these suggestions as meaning that if the judge seems to disagree with you that you should become silent. It is how you convey your message that often matters most.
Be persistent, unless it becomes obvious that the Court has heard enough. Often judges will tell you this. This can become a real problem if you have not had the opportunity to make "a record" for purposes of a possible appeal (something you never want, but sometimes must consider). If you are foreclosed from making a record, you should note that respectfully before quitting.
Similarly, it is usually pointless to argue with a judge once they have ruled on any given matter, but if you feel there is more to say and you are uncertain whether the judge has heard as much as she will, you might try "Your Honor, before the court moves on, for the record might I add one more thing?"
Rule 12: Never Lie to the Court
It is amazing to me how often attorneys will intentionally misstate facts to the court, or create inflammatory arguments that have little basis in fact. This happens a lot, and in fact this is one reason why divorce attorneys may be viewed as bottom feeders. It is really painful to listen to this poop. Yet, this is fortunately only a small, if vocal, segment of the legal practitioner population. Knowing this doesn't trigger you any less, however. So, if you are standing next to your attorney and hear the other side's nonsense, do not visibly react or scribble notes.
As a advocate, one of the most important things that lawyers possess is their reputation. Judges who will talk about it will candidly admit that they are every bit a catty lot as the next person. They talk in chambers, they talk in lunchrooms, they talk in restaurants, they talk in meetings amongst themselves. Their courtroom staff have opinions too! One of the common topics is about the lawyers who come into their courtrooms. Their views about particular attorneys' reputations can be infectious within the judicial community, which is not to suggest that they do not attempt to remain impartial on a case by case basis. It is true that sometimes it feels that attorneys who too freely spin the facts get away with it. This is one reason I am a proponent of monetary sanctions against attorneys directly, something I suggest in my Davenport Blog. One consequence of unaccountability is that opposing sides, and unrepresented parties, take their cues from the lawyers they come into contact with and mimic bad behavior of those they observe (or watch on TV). The behavior of legal professionals matters. There are so many reasons why it is imperative that lawyers not be deceitful. But as Forrest Gump once said, "sh_t happens. Sometimes." Bam!
Never lie to the Court, whether you are a lawyer or a party. Once a judge gets fixed on the idea that your information is untrustworthy it will pervade his view of you within your case, and is likely to haunt you in other hearings. There are subtle and not so subtle ways of punishing litigants. And, be advised, lawyers love it when the other party lies. This is exactly what can be seized upon to win their client's case by distracting from other facts or evidence that is damaging to their case. Better to just admit the weaknesses in the positions and move on.
Rule 13: Don't Tell the Judge That It's Obvious She's Already Made Up Her Mind
It does happen that the Court has prejudged the case before any oral presentation. It can be very difficult to understand why a bench officer may seem to have already decided your case, before you open your mouth. This is why I've observed that everything you write, and say, matters.
There may not be much that you can do about it. The advice of judges Curtis and Zisman is to stay calm and focused, and just keep going. Don't respond with something like well, "I can see your honor has already made up your mind," and don't otherwise communicate this with your body language, glares, or tone. Or slam the door on your way out of the courtroom. On balance neither the client nor their case can be served in this fashion. For lawyers, my experience is that clients better appreciate the fact that you remained professional rather than becoming snotty with the judge, because they will watch in real panic as their spokesperson begins to lose his or her poise or triggers an angry recrimination from the Court. Similarly, they will know you did everything you could where you don't pour accelerant on the fire.
Judges Curtis and Zisman suggest that lawyers and parties need to know, under such circumstances, when to fold. They also need to know how to protect the record - that is what is said on the record that is recorded by the court reporter. As with the rude and abrasive judge discussed below, a good record for an appeal may be your only hope especially in jurisdictions that video or audio record the hearing, since tones of voice and sarcasm are often lost in a written hearing transcript. And, beware, I once had this happen with an extremely difficult Juvenile Court Judge (retired some years now) and so made a request for the written transcript (which was all that was available), and when I received it I found that major portions had been edited out entirely. Obviously the judge had instructed the court reporter to falsify the transcript, but how was I to prove it? I did manage to get a Writ of Mandate on appeal that removed the judge from future hearings in the case, and then won it in front of a much better judge at trial. BTW, proof that a judge has doctored the hearing transcript would almost certainly result in judicial discipline if proved, but that is a can of squiggly wet worms that I do not recommend you attempt to grasp, since if your attack on the court fails that judge might make it their mission to ruin a party or an attorney, or the case.
Rule 14: Don't Duke it Out With the Rude and Abrasive Judge
Unfortunately I witness this more than I care to admit as an observer at courthouses. Judges Curtis and Zisman state "Some judges are rude, aggressive, even abusive, for no apparent reason, or at least none that justifies this behavior. It is extremely important for the lawyer (or the party) to be calm, and to remain calm, polite, [and] focused." I quote them directly to reinforce that I am not one lawyer griping about judges; similarly, I have friends who are retired bench officers and they will admit that such conduct occurs, and even that at times they (maybe regrettably) got triggered by it. Judges are really no different than me or you.
The goal of lawyers in such situations is, above all, to defuse the situation. This may seem an impossible task, particularly when it is our job to protect our clients and we look foolish or inept if we don't speak up with gusto. If the behavior is really so over the top that our clients are being abused we must object to such behavior.
All I can recommend to non-lawyers is that they not get sucked into such exchanges with the court, but that at the same time they politely and firmly stand their ground.
Rule 15: Ideas for Coping With Judges Who Do Not Know Family Law
California matrimonial law is immensely complicated. Many lawyers who regularly practice in family court really have little clue what they are doing, in part because the simpler contests arise over and over again and many lawyers learn enough to deal with these simple situations but would be highly stressed in more complicated situations. Many family court lawyers have very little actual trial or even deposition experience. They don't know how to cross-examine witnesses. They only have a glancing familiarity with rules of evidence. Some of these lawyers actually go on to become judges. Other judges may be quite skilled in the criminal arena, for instance, where they were once prosecutors or public defenders. These judges were once real trial lawyers, but that doesn't mean they understand family law. Others may have been quite senior civil litigators who nonetheless rarely if ever handled family law cases.
Curtis and Zisman suggest that particularly when you know that a bench officer is not overly familiar with this area, that you adjust your presentation to ensure that you covering the basics. State what you are asking for, identify any statutory authority, and discuss the legal standards that apply. One of the reasons I blog so much is to popularize information to empower non-lawyers. Lawyers have lots of legal treatises to subscribe to and review; the public generally does not have these so nearly accessible. I hope this website aids you. However, please remember, my blogs and articles are intended merely to be educational and it is impossible for me to guarantee their accuracy under any fact pattern. You have to do your own work and draw your own conclusions.
Rule 16: What to Do With the Judge Who Hates Family Law
This is usually a function of judges who don't know family law although as you might suspect, a jurist who hates family law is likely not going to bother to learn it. The best way to overcome this problem is to be polite, be brief, and educate the court about what you want and why you are entitled to it. If you have no idea as to either, the judge who hates family law may become an abusive judge as well. Politely and firmly resist being rushed. But get your points in clearly.
Rule 17: Cite Recent Case Authority Whenever Possible, and Know if Statutes Have Been Revised (by reading this Blog)
If you are identifying statutes or law that you believe impacts how the judge should rule on your case, try to identify recent materials and consider having a copy of them with you. For instance, I often Blog appellate decisions that may only have been published for the first time a few days before. These cases haven't hit the law books yet. The judge may likely know nothing about them. Be sure to bring copies of the case to the courtroom to give the bailiff to hand the judge, and be sure to provide one to the other side (hopefully before the hearing begins).
Because family law changes so rapidly, some judges only want recent authorities.
As to statutes, most that have been amended in any given year change effective on January 1 of the following year. If you are at the cusp of year's end, consider double-checking relevant statutes in advance of your hearing or when you prepare any written Points and Authorities. The Web is a great resource for these materials, as is my website, since I will attempt to give the public a heads up on important changes beginning November and December each year.
I am not sure what might happen if you cite this Blog as your authority, though.
Rule 18: Never Submit Late Declarations and Know the Rules
I often see pro pers bring in late declarations and try to file them just before a hearing, and refusing to first give them to their opponent or their lawyer. Many times I have had a self-represented party tell me that they intend to submit something to the Court but they wont let me have a copy until the Judge says so.
Judges almost universally will not consider late papers, and I promise you that the first words out of my mouth will be that Mr. So and So has some additional declarations to file, but refuses to let me see them. Even lawyers play this "I won't let you see it" game. Don't do it. It is the kind of conduct that may bias the court against you, and the risk reward ratio doesn't merit such behavior. Why blow yourself up at the outset?
If this happens to you on the receiving end object politely, at once. Know the rules of court provisions I've given you and any others that may apply and point out that the time to file papers expired. If a judge indicates a willingness to consider these matters, ask for a continued hearing so that you may review and respond to them. If the hearing proceeds respectively ask the Court to strike any oral version of the materials that didn't get filed.
Rule 19: Understand the Rules Relating to Proofs of Service
I cannot tell you how often court submittals are rejected by the clerks, or hearings don't go forward, because there has not been an adequate proof of service filed with the Court. Even when late papers are accepted by the clerk, judges often refuse to read them. Late papers burden jurists, and they aren't proper. Procedural due process within the adversary legal system requires that both sides have full and fair notice of what relief is being sought, and what is being alleged. There are strict time limits for perfecting Proof of Service, which are complex enough to tangle lawyers up as well. They can all be found for California in this website.
If you haven't perfected service, the best case for you is that you've wasted your day and your matter will be continued; the worse is that your materials will not be considered, or even that your matter will not be heard at all. A good idea is to consider asking the others side in advance for a continuance and get them the papers by fax or personal delivery at early on as you can, and tell the judge you did so when they insist on going forward and objecting to what you wanted to present.
Rule 20: Learn Something About Objections Beyond What You've Heard on TV
We have blogged some of the basic rules regarding hearsay and other evidentiary objections. Maybe read this topic!
Rule 21: What to Do With The Judge Who Won't Let You Argue the Case
This is common, particularly given that law and motion (and OSC) calendars are short cause hearing settings. This is something you definitely should ask the court clerk about in advance. However, it tends to be moving target depending upon a judge's frustration level on any particular day. Judges regularly will ask litigants, particularly pro pers, to look behind them at all the other people waiting to be heard "by me" today. You may be told that you be coming back after lunch if you cannot conclude your matter within a specific time frame.
Trials are a different matter. For non-trial order to show cause hearings assume that 10 minutes may be all you get.
As with all difficulties encountered with judges, try not to draw attention to the fact that the court is shutting you down or otherwise criticize the court, unless there is no option but to do so in order to protect the record. Which almost certainly means you've lost this round.
Rule 22: What to Do With The Judge Who Can't Stay Out of the Arena
Unlike many other legal areas, courts have some independent duties to investigate the facts of a case beyond questions that lawyers or parties might think to ask or decide not to ask because they know they won't like the answer. An obvious example is the best interests test in child custody and visitation proceedings.
Those of you that remember Paul Newman in The Verdict may recall what this circumstance can look like. There is not much to be done, except not to go off and to remain calm.
Rule 23: Know When to Fold 'Em
This is a painful reality for both lawyers and pro per litigants. Sometimes retreat is the only option. If you aren't getting anywhere, end the line of questioning or the argument. Young lawyers particularly don't know when to go silent. Pro pers seem to have a better sense of it, because they tend not to be as susceptible to ego battles with a judge as a lawyer filled with righteous indignation.
Rule 24: Be Reasonable
I find this one of the most important and effective of tools to obtain good and fair results in the courtroom, even when I can't achieve every single one of my client's goals. Reasonableness speaks to credibility. It also assumes that possibility of some win-win, and enables the Court to feel it has achieved substantial justice. Judges don't generally like giving one side everything they ask for, unless of course they are really pissed at the other side.
Do not cry. Do not stomp out of the courtroom, slamming the door. The judge WILL remember you and discount everything you offer later.
Rule 25: Don't Cry and Show High Emotions
Crying makes everyone uncomfortable, and even can trigger resentment. It rarely garners the sympathy you might expect. Showing extreme emotions raises an inference that you will exaggerate or worse to win, and makes you look unstable.
Rule 26: Treat Everyone With Respect
Clerks and deputies are watching everything that happens in and outside of the courtroom, and are part of the Judge's workday family. Treat them with respect and realize that they are sizing you up as well, and possibly even directly or indirectly reporting to the judge. Don't think you can behave like a jerk outside the Judge's presence (even in the hallways) without it possibly being seen and reported.
Rule 27: Repeat Back, For the Benefit of the Clerk, What You Understand the Court's Orders to Be
A problem area can arise here in dealing with Court minutes, which are taken by the court clerk. It is not uncommon for these minutes, which absent a transcript being ordered become the only written record of what transpired, to be incomplete or even incorrect.
This happens, unfortunately, often but is easily understood because things often move rapidly and emotionally during hearings. If it does happen and a formal order is submitted it will usually be rejected as not conforming to the Court's minutes. Ideally recite the court's orders back to the court for the benefit of the court clerk, and do it slowly and even look at them gently when you do it.
Rule 28: If There is a Court Reporter, Consider Asking that Person After the Hearing How You Can Buy a Transcript
It is always very useful to have a court reporter's transcript of any hearing where you made big points, where the other party said or did anything reprehensible, or where the Judge said something that you really likes, or where you have concerns that the Judge may not remember the next time because Judge's treat the record like gospel music.
Rule 29: Consider Employing the 80-20 Principle
Click here for some more considerations about persuasion and that less is more, according to the 80-20 principle.
Author: Thurman W. Arnold III, CFLS
P.S., all of this is easier said then done, in the heat of a reactive moment. Be kind to yourself with your expectations! It is not easy. None of it.