Communicating with Judges at Trial :: The Art of Advocacy

The last post touched on writing for judges. Now let's consider prepping for an appearance in court. According to the receiver-centered school of rhetoric, the more you know about the jurist's attitudes, values, personality and background, the more effective an argument you can fashion.

How do you research a judge? To begin with, read all relevant opinions and other writings to gain an appreciation of the judge's views. If those views differ from the position you plan to present in court, be ready to acknowledge this difference, as a show of respect, and then explain why the jurist should hear you out. Think of the potential embarrassment if you started arguing your point, ignoring the court's standing on the matter. That kind oversight will be detrimental to your ethos in many cases.

Second, you will need insight into the judge's mannerisms, style and idiosyncrasies. For example, will the judge be receptive to your moving away from the lectern? Will she have read your brief before oral argument? How much time should you devote to the facts or to the questions presented? Does the judge have a long or short attention span? Does he pepper counsel with many questions? Reading opinions won't provide answers to questions like these.

One effective way to get this type of information is to talk to the judge's prior law clerks, to other courthouse personnel or to lawyers who have argued before the judge. Be educating yourself about the judge's particular approach, you gain valuable information to help you tailor your argument.

For example, suppose you learn from a previous law clerk that he judge disdains lengthy pleadings. Unfortunately, your complaint is very long. You might address the problem this way: When court convenes and the judge asks, "Is there any business to discuss before we proceed?", answer, "No, your Honor, except that I want to apologize to the court for the length of the complaint. Because this case is the subject of parallel proceedings in two other jurisdictions, we were compelled to present many facts that ordinarily would have been omitted..."

In this way, counsel is able to acknowledge the court's concern before the judge ever addresses it. The attorney's ethos is hopefully enhanced as a result, and common ground with the judge is established.

When discussing a judge with others, avoid criticism. In a recent case involving complex issues of family law, two lawyers were in the courtroom before the judge entered. One asked the other for his opinion of the judge in domestic cases. The lawyer responded that the jurist was "in over his head" and that counsel would have to "spoon-feed" him. The judge overheard the comments because the internal video and audio systems were in operation at the time. The judge soundly rebuked the lawyer and relations between them suffered considerably.