A Judge’s Guide to Protecting Your Reputation | Litigation News | ABA Section of Litigation

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A Judge’s Guide to Protecting Your Reputation
By James G. Carr

One of a lawyer’s most important assets is his or her reputation. Each of us can create a good reputation by blending talent, intelligence, competence, and integrity. But we also risk destroying our reputation through deeds or words, whether deliberate or thoughtless, that undercut how others view us. Here I offer a list of steps that you can take to protect your reputation in the eyes of judges.

Be on Time or Call
Most lawyers are late once in a while for reasons beyond their control. But problems arise when a lawyer is routinely late and, what’s worse, pins the blame on someone else. Whenever you are late, you convey a message that your time is more important than the court’s time. If the judge comes to believe that, it’s likely that you are going to get less attention from the court than you would otherwise enjoy. Courts value their time.

Call and tell those waiting where you are, why you will be late, and when you expect to be with them. A heads-up may not make the judge happy, but at least it will avoid giving the impression that you have a casual view toward the court’s timetable.

Meet Deadlines; Don’t Wait to Ask for More Time
For many lawyers, predicting what they will be doing next week or month is difficult. Their time is at the mercy of the needs and schedules of others, including judges. Judges, in contrast, depend on predictability to make best use of their time. Without control over the course of the cases on their docket, judges cannot well serve the litigants and lawyers before them.

Because you sometimes have no choice but to ask for additional time, let the court know as soon as possible of your inability to meet a deadline. Explain the reason candidly. Admit that you simply weren’t able to get something done within the set time. That’s better than inventing an excuse that the court might view as implausible.

Be Prepared
Being unprepared is a serious professional failing. Lack of preparation, especially if manifested during trial, can injure a lawyer’s reputation and his client’s well-being irremediably. Direct examination is no time for discovery of what a witness has to say; doing so on cross-examination is even more risky. Failure to prepare carefully for direct and cross-examination will put off both the court and the jurors. Jurors dislike an aimless, rambling, and seemingly unending examination—especially a cross-examination.

Less dangerous manifestations of lack of preparation may also hurt your case and your reputation with the court. Your fumbling through a file or box of documents for the next exhibit may be recalled when the exhibit is not. The equivalent in today’s electronic world—not knowing how some technological marvel works—will leave jurors, especially those under 30, distracted and unimpressed in equal measure.

Be Meticulous When You Write
Most lawyers pride themselves on their oral skills and assume that they are just as persuasive when they put pen to paper. Sadly, that is often not the case. Turgid prose makes for unpersuasive arguments. Good writing pays handsomely. A well-written brief is always more persuasive, even where the facts and the law would favor the author of a poorly written brief. More than ever, your stature as an advocate depends not on how well you can present your case orally but on how well you do so in writing. Trials are few and far between. The outcome of cases increasingly depends on motions and briefs.

Content alone does not suffice. Proofread. Otherwise, typos and other errors will be distracting and may even cause the judge to lose sight of your argument.

State the Facts and Cite the Law Accurately
A misstatement of facts, even if unintended, stains your reputation for care and candor. Recite not just the facts that make your case. It is just as important for your credibility and the forcefulness of your assertions to acknowledge the unhelpful facts.

Be equally accurate and complete with your exposition of the law. Misrepresentation of the law will indelibly tarnish your reputation for competence and probity. Don’t assume that the court won’t bother to read the cases. It will. If a court believes you led it astray, whether intentionally or not, all your assertions will be suspect. Few briefs, no matter how well written or otherwise persuasive, can recover from such doubt on the part of the court.

Emphasize the Essential and Ignore the Trivial
If you can’t prevail on your strongest contentions, you’re unlikely to win with ones that are trivial. Be selective. Focus on what matters and will make a difference. Don’t squabble over every bagatelle and bauble in the case. Pick the fights you need to win.

Don’t Sandbag Your Opponent in Your Reply Brief
Some lawyers withhold their strongest arguments and cases until their reply briefs. This may seem to be an effective way to disarm the opposition and beat back its arguments. It is not. All it does is annoy the court. As a result, the court may sua sponte strike your reply brief, or it may give your opponent leave to file a surreply brief. The judge will view you as acting unfairly and unprofessionally, and will give less credence to whatever you have to say. Sandbagging is no way to gain a good reputation as a fair and competent advocate.

Avoid Ad Hominem Arguments, Sarcasm, and Similar Rhetorical Techniques
No judge likes to watch grown-ups being nasty to each other and calling each other names. Even if you genuinely believe that opposing counsel is being deliberately dishonest with the court, don’t call him or her a liar. Simply tell the judge what you believe the facts are and then prove them to be so. Keep in mind the old saying: “You draw more flies with honey than vinegar.”

Let Opposing Counsel Speak Without Interruption
Sure, you have a right to be heard, but then so does the other lawyer. You are less likely to get a fully attentive and sympathetic hearing if you interrupt while your opponent is in the midst of speaking. Let the other lawyer speak at will for whatever time the court is willing to listen. Be patient and attentive. When it’s your turn to speak, make good use of your time, anticipating that you’ll be able to do so without interruption (except from the court).

Let the Judge Speak Without Interruption
Judges generally believe that what they have to say is worth listening to. Interrupting the judge is unlikely to lead the court in the direction you wish it to go. At best, it shows that you believe that what you have to say is more important than what is on the judge’s mind.

Answer the Judge’s Questions
Good lawyers do not see questions from the bench as getting in the way of their eloquence and the elegance of their arguments. On the contrary, even when the judicial question disrupts a train of thought or argument, the seasoned advocate welcomes the interruption. Judicial questions allow the lawyer to understand and respond to issues troubling the court. To be most persuasive, focus primarily on the issues the court raises and then turn to the ones you wish to present.

Know the Rules of Evidence
At some point, judges will form impressions of how well you know and follow the evidentiary rules. If you give the judge the impression that you either don’t know or care to follow the rules of evidence, you will be less likely to prevail when the outcome of an objection is a close call.

Accept Adverse Rulings
Some lawyers continue to argue even after they have won a ruling. Many more continue to argue after they have lost one. The message to the judge is that what the court has said either remains open to debate or doesn’t matter. Either way, the message is highly annoying. Once a judge has ruled, stop arguing and don’t ignore the ruling. Make your record and move on.

Don’t Tell the Court It Has Committed Reversible Error
No judge likes to be reversed. For an advocate to tell a court that it has just committed reversible error is usually seen as an insulting threat. “Change your mind or else” is hardly likely to cause the court to change its mind. It is more likely to brand you as an impertinent would-be bully who has probably—and to the misfortune of his reputation, case, and client—forgotten who is in charge.

What should you do if you believe that a ruling or decision is, in fact, erroneous and irredeemably harmful to your case? First, make sure the error is preserved for review. Next, if you have not done so before, call the judge’s attention to controlling authority. If you have not given the court that authority sooner, tell the judge why you did not do so. Then wait until you are in the court of appeals to contend that the error is reversible.

Don’t View Every Negative Event As a Manifestation of Judicial Hostility
Some, but far from all, adverse rulings are an indication of judicial unfriendliness. If that seems so, ask yourself, as objectively as possible, whether you might be the cause of the judge’s apparent petulance.

Usually, the judge is truly calling them as they appear to be. Give the judge credit at least for trying to do so. By all means, never display annoyance or incredulity when a ruling goes against you. Communicating, no matter how subtly or obliquely, a belief that the judge is wrong-headed will only lead the judge to think the same of you.

Don’t Get Angry When the Judge Does
Judges get paid to keep their tempers. Some judges habitually don’t deserve a paycheck. Others, even those whose judicial temperament normally is exemplary, occasionally erupt.

You’ll not help an already volatile situation by losing control as well. The best response after a judge has unfairly pinned your ears to the far wall is to ask for a recess. It will give the judge time to cool off and calm down and for you to figure out how to extricate yourself from a painful impasse.

Be Forthright
A well-founded reputation for integrity is the lawyer’s most important attribute. Whenever you do something as a lawyer that causes someone to doubt your candor and honesty, your professional standing slips. Let it slip often enough, and whatever good reputation you once had will be lost forever.

A good reputation is invaluable. Honesty really is the best policy. Make that your guiding star and you will earn, deserve, and keep the best of all possible reputations.

James G. Carr is chief judge of the U.S. District Court for the Northern District of Ohio.
This article was adapted from a longer one that was published in the Spring 2010 issue of Litigation.


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