Know the judge as well as you know your case
When preparing for a trial, it is a given that you will spend much time preparing your case – focusing on the facts and law that are directly relevant to the matter in dispute. However, as I’ve learned from years as a trial attorney in Baltimore, a good pre-trial investigation also involves learning about the judge who will preside over the case.
As a trial lawyer, the more you know about the judge’s attitudes, beliefs, values, style, personality and background, the better able you will be to tailor your arguments to his or her predispositions. Many tools are at your disposal. Thanks to the Internet, numerous forums are available that may give you insight into the judge’s leanings and background that were not available years ago.
In addition to conducting online research, you should speak to the judge’s previous law clerks as well as other courthouse personnel and attorneys who have argued before this particular judge. There is no better way to gain insight into the judge’s style and idiosyncrasies that might have an impact on your case. You might learn, for example, if this judge is known to pepper counsel with many questions or if she tends to favor the government or the defense in criminal cases. You might learn if she has a short attention span or if she will likely have read your brief before oral argument – or if she’d likely just put it aside. Even details like whether she would be receptive to your moving away from the lectern are helpful in mapping out your strategy.
Say you learn from a previous law clerk that the judge disdains lengthy pleadings and, unfortunately, your complaint is very lengthy. When the court convenes and the judge asks if there is any business to discuss before proceeding, you might consider a response along these lines: “Your Honor, I would like 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, you confront the court’s concern in a pleasant manner before the judge ever addresses the issue, and you establish common ground and a mutual understanding.
As you conduct your research, be extremely mindful to avoid criticism of the judge or her style. I recall a trial in Baltimore several years ago during which two lawyers were in the courtroom before the judge entered. One attorney asked the other his opinion of the judge, to which the attorney answered that the judge was “in over his head.” The judge overheard the comments because the internal video and audio systems were inadvertently left on at the time. That did not set a good stage for the proceedings that followed.
Interviews with those around the judge will help you grasp her courtroom style, but you should also plan to read relevant opinions or other writings of the court so that you can gain an appreciation of the judge’s views. If those views differ from your position in your case, it’s best to know that before presenting your argument so you can work with or around the judge’s views most effectively.
You might confront the issue by stating to the judge, “I realize, Your Honor, that in the Baltimore Savings and Loan case you opined that a breach of fiduciary obligation is not an independent cause of action. Nevertheless, there are compelling reasons why you should consider modifying your view in this particular case.”
By doing this, you signal to the judge that you know and respect her view but that you want her to listen to your presentation with a mindset hospitable toward modification. You also remind the court that you are aware of the court’s standing on a particular point, have factored it into your argument, and you establish a common point on which your argument may begin.
Keep in mind that you sometimes may not want to attempt to persuade a judge to change a viewpoint because you believe the task is hopeless. In that event, you should focus on establishing the proper record for appellate review.
Though all of this research will be immensely helpful in preparing your case, bear in mind that there is no substitute for firsthand knowledge. If you are presenting a case before a judge for the first time, make every effort to observe the judge in action in several cases. Note the judge’s style, what she seems to like and dislike, how she relies on other cases. Then, tailor your presentation to her preferences. It is just part of the job of preparing your case for trial.