Researching judges :: The Art of Advocacy

More on the subject of researching judges:

In addition to reading prior opinions and talking with former law clerks, court personnel, and other attorneys about the judge's manner and preferences, be sure to observe the jurist in court, particularly if you are presenting a case before him/her for the first time. There is no substitute for this firsthand knowledge.

Observe the judge's style, what s/he seems to like and dislike, how s/he relies on other cases. Then, tailor your presentation to these preferences. (Without, of course, compromising your own natural style.)

By way of example, consider the story of a young trial lawyer defending a criminal assault case.

The complaining witness had also filed a civil suit against the defendant, and defense counsel had learned that if the civil case settled, the complaining witness would not proceed with the criminal case. The defendant was adamant that he was not guilty and refused to pay the complaining witness "one red cent." The case was a close one and could have gone either way.

In this particular jurisdiction, cases of this nature are often resolved by the judge, who can find the defendant guilty and impose "probation before judgment," which means placing the defendant on probation for a limited period of time. When the probationary period expires, the conviction record is erased and no permanent criminal record is established.

The problem for the young lawyer was that, notwithstanding the "probation before judgment" option, a finding of guilty would result in considerable adverse publicity for his client. The lawyer spent two afternoons in court observing the judge and learned the judge was impatient with opening statements but was very attentive during closing arguments. He also learned that the judge rarely ruled in favor of the defendant and that, in four assault cases in which the issue of guilt was questionable, the judge found each of the defendants guilty but granted probation before judgment.

After these observations, the lawyer was understandably pessimistic about the likelihood of a not-guilty finding. Based on his advice, the client agreed to settle the civil case and, with the consent of the complaining witness, the criminal case was dismissed.

Had this young lawyer not observed the judge in action, he probably would have tried the criminal case and had a much less desirable outcome for his client.