Disagree Without Being Disagreeable: Accepting Bad News From a Judge with a Smile

In March, I suggested/implied/explicitly promised to provide professional lawyer advice to you all. Sorry for the delay.

I saw this tweet recently, though, and I am reminded of an important lesson for you litigators out there…

No, not the part about the client dinners.

The part about how, as the Judge recites his or her oral ruling, you have to sit there, listening, and taking furious notes. And, no matter how wrong the Judge gets the decision, at the end, you have to politely smile and thank her for the ruling and consideration.

Side Note: Don’t get me wrong, if there is more argument to be made, you present that argument as quickly and respectfully as you can. If the Judge clearly gets the facts or case law wrong, then you have point that out and see if you can get them to change course.

But, here, I’m not talking about that situation. I’m talking about situations where you’ve argued your position so thoroughly and completely that the Judge has no question about the substance of your surely awesome and unassailable legal theory, but nevertheless rules against you.

In that case, my advice is to learn how to take exact and detailed notes, smile, thank the Judge for their time, and then appeal or attack the ruling (if necessary).

A few months ago, I won a hotly contested hearing and, obviously, my opposing counsel lost. And he disagreed with the Judge. A lot. And it showed. His tone toward the Judge expressed frustration, anger and condescension. To avoid any confusion, after his final efforts to get the Judge to change her mind, he threw his argument notes down on the counsel table with an audible sigh.

Don’t ever be that guy.

One, I refuse to ever acknowledge defeat, even in the face of clear defeat. Instead, I go back to the office and confidently call the other lawyer, tell them we’re preparing an appeal, and try to settle. I mean, what else can you do?

Two, judges don’t like being disrespected, and, if this Judge had any doubt in her mind about her ruling, this definitely erased that.

Finally, when you express anger or frustration at the judge, you’re showing a lack of tact and professionalism to everybody in Court, including opposing counsel. Plus, this Judge is going to remember this lawyer.

This is always a fine line to walk, between preserving your reputation for being respectful toward the court and zealous advocacy. I’m sure the lawyer’s client would have appreciated the show, but, in the end, there are definitely down-sides to an emotional outburst.

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