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How to Succeed in My Courtroom Without Really Trying:
A Judge's Perspective
By Jennifer Jackson, JD (Family Law News, Judicial Survey, Vol.
17, No. 3)
For friend in court ay better is Than peny in purs, certis. Jean de
Meun, French poet, c.1279-? Roman de la Rose.
Sacramento County: The Hon. Charles Kobayashi
San Francisco County: The Hon. Maria-Elena James
How does one secure that "friend in court?" Let's hear from the judges.
Guard Your Credibility
San Francisco: Your reputation is the most important thing
you have. An attorney only has one "bite" at the "apple"; once you've
lost the court's trust, it's gone for good.
I distinguish between someone who is sloppy and someone who is deliberately
attempting to "con" me. If a lawyer is willing to risk his credibility
for one client, his word isn't worth much. If I trust an attorney, I assume
that things are done by the book.
Another way to lose credibility is to assert something that is patently
ridiculous on its face, or to rely on a technicality when it violates
the spirit of an order or family law policy.
We as judges are aware that attorneys are in a tough spot. If you practice
in front of me you know when to push and when not to, but a client doesn't
understand that fine line. Divorce makes people temporarily insane. These
people are out of touch with reality; they watch too much television and
expect their attorneys to put on a show. But when you suspect you client
is manipulating you, don't risk your good reputation; let that client
go.
Sacramento: I completely agree that the worst thing for
an attorney is to lose the court's trust. That attorney's effectiveness
is measurably lessened and the court will tend to more carefully scrutinize
that attorney's representations. The sad fact is, there are a couple
of attorneys I'm more careful about than others.
Don't risk your credibility on minor matters, such as why you or your
papers are late. The truth will eventually come out, and no falsehood
or half-truth is minor.
Sometimes argument will include half-truths. An attorney, knowing the
facts to be a, b, and c, only discloses facts a and b. Once
this comes to my attention, it lessens the weight I will give this attorney's
arguments in the future. Among other things, I will question the basis
for an ex parte application much more rigorously with these attorneys
than I would with others.
This can also have an impact on attorney's fees awards. Once in a while,
because an atorney has lost credibility with me, I am more easily persuaded
by the other side's representations as to delay, harassment and dilatory
tactics.
I make these judgments for myself. I try not to pay much attention to
attorneys' and judges' stories about their colleagues, but there are some
legends about attorneys around here that no one can deny.
Stand on Common Sense Rather Than Rites and Procedure
Sacramento: We are still a court of equity. However, everything
we do is based on statute and we are bound by certain procedural requirements.
Some procedures are important to observe, so that order and due process
can be preserved. But at the pendente lite stage, I am not going to insist
on compliance with every obscure procedural requirement: it just doesn't
make any sense. It's my role to get dysfunctional parties back on the
road instead of constantly coming back to court with technical and procedural
issues.
San Francisco: There are times when procedure is critical, but
attorneys need to be able to see the forest for the trees. Family law
doesn't lend itself to rules because each case is different, and solutions
to those problems don't fit within rules. This is why flexibility is so
important, and why we try to have so many settlement conferences, where
the rules are somewhat relaxed.
Don't Resist Settlement
San Francisco: "This case can't settle..." raises
a big red flag for me. I've heard all the excuses. My response is "What
do you mean it can't settle? I'll make the decision the long hard
way or we can settle today; if I'm forced to do it the hard way, and the
decision is the same as what I've indicated today, I'll remember that
when I'm thinking about fees."
A settlement conference is a free shot at what I'm thinking and how I
would be ruling. Some attorneys resist, finding it safer to play it close
to the chest. I'm not sure what their motivation is, whether it is their
modus operandi or whether they are playing into their client's
reluctance to settle.
Hiding the ball and game-playing are hard-ball litigation tactics that
do not transfer well to family law. However sometimes - but not often
- there is a very good reason for saving evidence for another time; a
good attorney will play it case by case.
Tell me if your client is difficult, or has a hidden agenda. I'm usually
suspicious if an attorney says his client is NOT difficult, but the other
is. An effective settlement conference must have all the cards on the
table. It may be easier for attorneys to insinuate that both clients
are difficult, then I know what I'm dealing with. In these cases I can
talk directly to the clients, who seem to need to hear it from the horse's
mouth. Taking the time to hear everyone's concerns is valuable; what most
people want is to be heard.
I normally get a lot of cooperation from the family law bar; my taking
charge of the case can be an end-around their clients' perceptions that
they are "giving away the store" when they are actually trying to settle
in good faith.
Sacramento: I set cases for settlement - whether trial or
pendente lite - at least three times a week on the afternoon calendar.
I find that attorneys are happy to participate. A lot of the time they
are advocating for a cause they may not truly believe in and in truth
want and need the court's help to resolve the case. My taking charge is
to our mutual benefit.
I would definitely encourage an attorney to tell me if either or both
clients are difficult. Then I will talk to the clients alone, together,
whatever it takes. I recognize the problem for attorneys revealing a fact
like this to their trial judge; if I don't settle the case, I generally
will not try it.
Sometimes it is hard for me to tell whether attorneys are leveling with
me in a settlement conference. Occasionally, at one of the settlement
conferences, an attorney will accuse the other attorney of not having
disclosed a certain fact that was known the day before. Sometimes this
is because the attorney hiding the ball is not prepared to go forward
with settlement, which wastes everyone's time.
Watch Your Ps and Qs
San Francisco: Bring enough copies for everyone. Send
me a courtesy copy of everything you want me to read well in advance of
the hearing. But don't make me read your version of War and Peace; write
just enough for me to grasp the issue. Clearly frame each issue.
Complete and file your income and expense declarations. Don't try
to make me do all the work at a hearing, and don't turn a hearing into
self-help discovery. Don't ramble: Although I might be enjoying your stream
of consciousness, I won't be able to figure out what you want. Tell me.
Know and practice the rules of evidence.
Sacramento: Do a cost-benefit analysis before you even start.
Arguing over a few dollars in support can cost more in fees than ten years'
worth of the extra dollars. Cut your client's losses and put the fees
toward important issues.
Meet and confer before you take up the court's time, waste fees and polarize
your clients. Most of the time, attorneys can agree on many of the issues,
narrow the focus for the court, and calm the case down considerably.
Help us with security; let us know if there is a problem. We have metal
detectors, a regular armed deputy in our courtroom and a roving bailiff
on our floor. Our deputy will do a computer check on pro-per litigants
for prior offenses. Over and above that, we rely on input from our attorneys
to keep us vigilant and safe.
There's no question but that the court's involvement with the family law
bar activities is important, as is the attorney's involvement in their
own activities. If the court takes the initiative to get involved and
develop a good working relationship with the family law bar, they can
develop the "Ps and Q's" and policies together in a constructive fashion;
this tends to keep each aware of what is expected of each other.
Be Courteous To Courtroom Staff
San Francisco: An insult to my staff as an insult to me.
The same is true about trying to shift blame onto them. It isn't like
they never talk to each other or to me; news gets around, and the
staff can make or break you.
How? Certain attorneys' paperwork is held up and checked every time. Other
attorneys' paperwork is processed quickly as a matter of course. Certain
attorneys' language comes back in a transcript garbled, while others'
is cleaned up. Some attorneys' calls are returned right away, their questions
answered, and so forth.
Sacramento: My staff is human just like anybody else. If
they are treated with courtesy, they are going to reciprocate. A good
rapport between attorneys and court staff helps expedite my work, and
in that respect I'm very fortunate.
My clerk has been doing this for several years and deals with the public
very well. No matter how upset someone is, she deals with the situation
calmly and with a smile. As a result, attorneys are very nice to her.
My bailiff is also very congenial with the public and with attorneys.
Be Courteous to Each Other
Sacramento: I run a very low-key courtroom and allow a little
bit more explanation and exposition than other judges may. I believe that
each party, especially in propria persona, should have his or her
day in court.
I have no objection to vigorous advocacy, but obviously some attorneys
believe they must engage in histrionics to let their clients know they're
really doing something for them.
I expect attorneys to discuss matters before they enter the
courtroom. I will order them outside if it is clear they have not
had more than a perfunctory discussion. I won't allow them to, in effect,
take depositions in my courtroom.
I expect attorneys to proceed in an orderly fashion. Whoever brought
the motion should start and the other attorney should not interrupt.
It is important to let the other side finish his or her presentation.
Interruptions are more than just rude; they can cause things to get out
of focus and out of hand. Tempers start to rise and what might have been
a short presentation takes forever.
I expect attorneys to be prepared. I understand that they may have
time pressures, may have been unable to meet with their clients, their
clients have their own job pressures as well. While I prefer and expect
attorneys to be prepared and normally they are, I can be fairly tolerant
with the unprepared. I get handwritten pleadings, incomplete Income and
Expense Declarations and last minute presentations of paystubs and such.
However, I usually allow it because I don't favor continuances that just
cause more expenses to the detriment of the parties.
I expect attorneys to be courteous. Some people just know how to
push another attorney's buttons and will do so. However, I don't let attorneys'
discourtesy influence the outcome - by nature some attorneys are more
rude. I may not be happy about the way they behave in court, but I have
to make my decision based on the client's case, not the attorney's behavior.
Having said that, I admit that it bothers me when I have to rule against
a courteous attorney in favor of a belligerent and bellicose one. But
if the client's position is correct, I will rule for that person regardless
of his or her attorney's conduct even though I might not like doing it.
San Francisco: In some ways I disagree, in that there are ways
to deal with the attorney who is discourteous other than by punishing
the client. And to some extent, rude conduct has to influence the outcome,
as you generally expect a client to have a role in his or her attorney's
behavior. These are the attorney behaviors that push my buttons:
Interrupting - even when I tell them to stop. These attorneys usually
insist that they need and have the right to interrupt. Frankly,
I've never seen that to be true, unless they are going to make that rare
legal and appropriate objection. If they persist, I then have to spend
energy trying to control them rather than get to the issue at hand.
Name calling: It is simply bad form to call another attorney a
liar. An attorney can indicate that something may not be the "truth" by
using the facts in other, more subtle and effective ways.
Hysteria: The family law court is already emotional enough. When
the attorneys get hysterical, it requires another layer of energy from
me to control the courtroom rather than focussing on the issues at hand.
Baiting the other attorney: When both attorneys are out of control,
it is sometimes because an unreasonable attorney is simply baiting the
reasonable attorney. It can be difficult to tell who is behind it, but
in time I have a handle on this. It's a simple matter of the "victim"
crying wolf too many times.
However, my philosophy generally is that a person who loses his or her
temper is out of control by definition. I will sit up and take notice,
however, when an attorney I know to be calm and reasonable by nature on
that rare occasion loses his temper. Although sometimes anger is appropriate,
someone who is always angry is going to have very little credibility.
Be Courteous to the Other Party
When you have no basis for argument, abuse the plaintiff. Cicero
106-43 B.C.
San Francisco: Every player should be treated the same.
Everyone should be afforded his or her dignity. There is a certain amount
of leeway you have in cross examination; but remember that you can get
your point across more effectively by being polite. If I'm not trying
to wade through someone's anger, my ability to get through to the core
of the problem is increased.
Sacramento: When an attorney gets antagonistic toward a
person on the witness stand, the witness will take a very defensive position
and will be extremely careful about what he or she says. The most effective
attorneys can twist the knife while appearing polite. Rudeness toward
a witness usually backfires.
Some attorneys file fifteen or twenty pages of exhibits and statements
that are extremely intrusive to the other party's privacy. I don't want
to read this kind of garbage and am inclined to strike these kind of pleadings;
they have no business in a no fault situation, let alone the public record.
Be Courteous to Us
Sacramento: I strongly believe that the demeanor of litigants
depends on the atmosphere of the courtroom and the way we as officers
of the court conduct ourselves. I am convinced that the fact that I run
a very calm and mannerly courtroom accounts for the rare instances of
discourtesy. I have not reached a point where an attorney has gotten so
far out of hand that I've had to admonish or restrain that person.
I will admonish or remove someone who will just not stop talking,
and I take issue with an attorney who will argue with me after I have
made my ruling.
I have seen judges completely lose control over their courtrooms, but
I can't recall this happening personally; I agree with Maria that to be
that angry is to be out of control by definition.
San Francisco: It always amuses me when someone is discourteous
to a judge. In some ways it is less egregious than other types
of discourtesy in that I'm in a position of power and can defend myself.
There is a difference between newcomers who don't know what my rules are
and what the gig is...and oldtimers who don't care what the gig
is.
Of course, it's awfully stupid to be discourteous to a judge. Try to remember
who is making the decision, if for no other reason than it is in your
client's best interests.
Having said that, these are the behaviors that annoy me:
Arguing with my ruling: Even worse, not believing that I have actually
ruled. I'm more inclined to listen to attorneys trying to teach me something
than those who are trying to convince me they're smarter than I am.
Threatening me: Attorneys sometimes like to close with the thinly
disguised "A"-word: by implying that I don't understand the situation
and that an appellate court probably will. Even though this could be true
sometimes, it should be obvious that I have made up my mind and I don't
want to debate. So appeal me: I want to move on with my calendar.
Being "slick" with me: This goes more to credibility than to courtesy,
but it is extremely disrespectful and unprofessional to mislead a judge.
I will have figured it out by the next time I see that attorney.
Insisting that an issue is NOT BEFORE ME: For example, when someone
raises an issue that is directly related to the welfare of a child, and
I start to look at it, don't tell me it's not before me. This is family
court; the best interests of children are always "before" me. Don't tell
me I can't address it. Instead, tell me you want to respond, or
that you want to research it.
As a judge, I don't want my energy to go into policing the people in front
of me. Even so, I try not to react or let myself become really angry.
I usually regret the reaction. Again, if angry, a person is out of control
almost by definition, and then the courtroom is out of control.
We Don't Do Windows
Sacramento and San Francisco: Save the Court's energy
for the major issues; limit the use of our time. Don't make us do furniture,
or anything else that you can do yourselves. By and large none of us is
going to do pots and pans and that type of thing. Normally, we expect
that attorneys will have those issues resolved ahead of time.
We like to see ourselves as problem solvers, not overseers of petty battles;
have confidence in us and let us deal with the bigger picture.
Conclusion
A truly qualified advocate - like every genuine professional - resembles
a seamless garment, in the sense that legal knowledge, forensic skills,
professional ethics, courtroom etiquette and manners are blended in the
total person. There are some lawyers who scoff at the idea that manners
and etiquette form any part of the necessary equipment of the courtroom
advocate. Yet if one were to undertake a list of the truly great advocates
of the past 100 years, I suggest he would find a common denominator: They
were all intensely individualistic but each was a lawyer for whom courtroom
manners were a key weapon in his arsenal. Whether engaged in the destruction
of adverse witnesses or undermining damaging evidence or in final argument,
the performance was characterized by coolness, poise, and graphic clarity,
without shouting or taunting, without baiting witnesses, opponents or
the judge. Warren E. Burger. Lecture, Fordham University Law School, reported
in the Los Angeles Times, December 28, 1973.
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