Courts

When The Trial Court Beats You Up, You May Be A Winner

Getting a bit of a beat down in the trial court may not always be such a bad thing.

By Christine A. Rodriguez  
on

Attorneys face difficult, and often unpleasant adversaries in court all the time.  We expect this. Litigation is a tough business and for some, civility is not a part of their playbook. Sometimes the same is true for the court and one side gets pushed around a bit more than the other. This can be strategically and emotionally challenging for trial attorneys. But getting a bit of a beat down in the trial court may not always be such a bad thing. Sometimes, it gives counsel the upper hand, especially with a jury.

Many things determine the experience counsel has while trying a case. Venue, local procedural rules, and individual court and judge practices impact the overall atmosphere of the courtroom and how the attorneys who appear in those courts are treated. In many jurisdictions, the same lawyers and, more often, the same agency counsel, appear regularly and have all of their cases heard by a handful of judges. Often, municipalities, like the City of New York, will have special parts dedicated to the large volume of cases in which they are a party. In criminal matters, often certain types of cases will have court parts designated just for certain criminal offenses. For example, many jurisdictions now have special drug court parts, domestic violence parts, and in some places, a part for gang related cases. And then there are the Federal District Courts, which are generally smaller than their state and local counterparts. The Assistant U.S. Attorneys (AUSA) and defense attorneys who regularly appear in those courts try all of their cases before a handful of judges and everyone often knows one another in those courthouses.

Given that Judges are human, it is no surprise that sometimes one side’s attorney(s) seems to be treated rougher than the other during a trial. On occasion, the attorneys who are in front of a certain Judge more frequently will get the short end of that stick, but more often it is the other lawyer who is pushed around. As defense counsel in criminal cases, I have, on many occasions, been on trial in a court part that is a second home to the assigned prosecutor. Sometimes the reception I have received from the presiding Judge in those situations was less than welcoming. I have had my cross examinations interrupted by impatient Judges who thought the pace of trial was too slow. I have been cut off trying to make a record to preserve objections for appeal. I have had objections overruled, only to have the Judge later sustain an objection by the prosecutor on a similar issue. I have heard comments (not so kind ones) about the volume and tone of my voice, the effectiveness of my questions and the zeal with which I advocate for my clients. During one three-month long gang conspiracy trial, I had other lawyers come up to me at the end of almost every trial day for weeks to ask me how I managed to keep my cool while the Judge taunted and bullied me all day long (I didn’t, but I managed to fake it well enough).

So, when I read that the Judge in the Manafort case appeared to be biased against the government because he rushed through parts of trial and pushed the AUSAs around, I was amused.  The government so often has the advantage in a trial. Despite my amusement though, this is no laughing matter.  I did not observe the Manafort trial and only read some of the news reports about the daily proceedings, so I have no opinion about whether the Judge’s conduct during the trial was really biased against the government. That said, the appearance of bias from a Judge has no place in the trial court.  Juries pick up on when a Judge seems to favor one side over another. In my experience, juries often side with the party that gets bullied in the courtroom, particularly when it appears that a Judge is making it difficult for counsel to advocate for their client.

In the Manafort trial, the government had to deal with, among other things, the Judge rushing them through witness testimony, commenting on their evidence and limiting their ability to present evidence that is regularly presented in other similar cases (according to the news reports). The jury seems to have commented on this by handing the government a win with a guilty verdict on eight counts. My client in that three-month long case was acquitted. Perhaps my jury commented on the Judge bullying me in that case as well. Obviously, the strength of the evidence and how well the attorneys try their case is likely a much more important factor in who prevails. Skilled lawyers get good results. Yet, I have noticed that anytime I get beat up by the Judge in a jury trial, my client prevails. Perhaps I fight harder when I get pushed, though I always fight really hard even when the Judge is nice as pie. More likely, since jurors are human too, perhaps they just don’t like to see one side getting pushed around while the other is favored.

So, if you have a tough Judge on trial who seems to be pushing you around more than the other lawyer in the room, the odds may just be in your favor. Keep your cool (or pretend well), use it to your advantage and fight that much harder. When the trial court beats you up, don’t sweat it because it could help you win.

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Christine A. Rodriguez is of counsel to the firm Balestriere Fariello and successfully represents individuals and small businesses in all manner of employment discrimination, civil rights, criminal defense, civil litigation and commercial litigation matters. She also advises small businesses on all aspects of legal matters from contract to employee issues. You can reach her by email at christine. a. rodriguez@balestrierefariello. com.

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