Litigators

Don’t Be Too Concerned About Annoying Your Judge

You're there to win for your client who entrusted you with her case, not to get a first place medal in the Likeability Category.

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Most judges really want to do the right thing. If trying to do the right thing for your client means possibly annoying them, do it.

A judge in the Southern District of New York where my colleagues and I practice a great deal is one of the most gentlemanly lawyers I have ever seen. Even when I’ve seen lawyers painfully unprepared or absolutely incapable of addressing the actual questions of the judge, he always maintains his patience.

As any practitioner knows, it is not always so. Most judges simply do not suffer fools gladly, whether out of a commitment to efficient administration justice, impatience developed over years of seeing bad lawyering, personality, or something else — and right or wrong. Experienced litigators have seen judges many a time express their frustration (or worse) at lawyers, and it does not look fun.

Given that, when you know that you are going to do something that will likely annoy a judge, it’s easy to feel reluctant, no matter how much you think you may need to ask or do a certain thing. I think this particularly comes up at trial where, in most cases (and thankfully) judges are anxious to move cases along and, especially with jury trials, not waste the time of nonparties, including those juries. You may want to make a particular application, or object to question, or simply make a logistical request. But you’re afraid the judge will get annoyed for taking up everyone’s time or not figuring it out on your own or with your adversary.

Get over your fear. You’re there to win for your client who entrusted you with her case, not to get a first place medal in the Likeability Category.

Now, understandably, as an advocate you may fear that the judge’s annoyance will translate into an adverse ruling for your client, or some kind of bias as you proceed. I think this very rarely happens. Even the most crotchety of judges try to do the right thing. Indeed, I think some judges use a purportedly annoyed demeanor as a way to get members of what might be generously called a loquacious profession to get to the damned point and move on as needed.

If you think what you will do is right, even if it may annoy the judge, then do it.

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A colleague of mine in a jury trial was faced with this issue at multiple points. Her adversary was a more experienced, affable, and fairly arrogant, guy. During voir dire in a state court action they could not agree on a for cause basis to challenge two jurors. My colleague was concerned about going before the judge who was assigned to address juror challenges. The very experienced judge in question gets annoyed very easily at lawyers who he thinks are wasting his time. But it was right for my colleague to seek to challenge the two jurors in question, and not use the limited peremptory challenges which she had. As such, she made a challenge for cause and went before the impatient judge. And she won. Maybe he expressed annoyance at her. But who cares? He did the right thing and dismissed from the jury the two individuals who did not belong.

My colleague experienced the same thing during subsequent motions in limine. The seemingly charming adversary sought to prevail on my colleagues: can’t we simply agree? No, we could not: our side forced the Court to hear the parties’ motions in limine regarding a series of evidentiary issues. The assigned judge who immediately made clear that the parties should settle still heard argument on multiples motions in limine. We won on all of ours, and they lost on all of theirs. The judge did the right thing (and, I would like to think, we also just did a better job).

Only a fool or a scoundrel is going to seek to annoy a judge needlessly (and I have seen few of those). But good trial lawyers have to accept that they may annoy their judges at times, and be ready to do so in order to win for their clients.

john-balestriereJohn Balestriere is an entrepreneurial trial lawyer who founded his firm after working as a prosecutor and litigator at a small firm. He is a partner at trial and investigations law firm Balestriere Fariello in New York, where he and his colleagues represent domestic and international clients in litigation, arbitration, appeals, and investigations. You can reach him by email at john.g.balestriere@balestrierefariello.com.

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