Years ago, a friend was trying his first case. It was a bench trial, to a federal judge in California.
Several times during the trial, my buddy objected to things involving documents the judge hadn’t yet seen — depositions taken overnight and not yet transcribed, for example, where the question was whether the witness had said something.
“I’m doing great,” my buddy crowed. “I was impeccably honest during pretrial proceedings, and I’ve been so honest during the trial that the judge now believes me, and not opposing counsel, about things that the judge doesn’t know. Every time I object to stuff about which the judge is ignorant, she rules in my favor! I’m doing great!”
Filevine’s New Legal AI Platform LOIS Turns AI Into A True Legal Coworker
Legal work isn’t slowing down, and the firms that win won’t be the ones working harder — they’ll be the ones working smarter.
That was, of course, precisely the wrong interpretation.
Suppose you start winning all of your objections. Does this mean that you’re always right, or that you have the judge’s confidence?
Maybe.
But it more likely means that you’re going to lose. The judge may well be thinking: “It’s already obvious to me that I’m going to rule for the plaintiff. The defendant is objecting to evidence. I’m consistently going to rule in favor of the defendant so that the defendant has fewer issues to raise on appeal.”
AI Is Killing Legal’s Billable Hour. It’s Also Repeating Its Worst Mistake
Law firms and legal departments are writing the future of the profession in separate rooms. What happens when they actually work together?
My buddy lost his trial.
I flashed back to that experience from decades ago recently, when I heard a report from a trial site: “I think we’re going to win! The judge is ruling in our favor on almost all of our objections!”
Uh-oh.
I hear your report: The judge is ruling in our favor. I just interpret that differently than you do.
A similar issue can come up in jury instructions. Suppose you’re proposing a pretty aggressive instruction on an important issue in the case. The judge says: “I’m ready to give that instruction. Are you sure you want it?”
What’s the judge saying? How should you react?
Young lawyers grab the prize that’s been offered: “Of course I want it! Please give the instruction.” If the judge gives that instruction, then you’re very likely to win!
Older lawyers pause for a minute before accepting the gift. The judge may have just said, implicitly, “I suspect that the jury will rule in your favor. That means that your opponent will be looking for appellate issues. Although I’m reasonably sure you’re entitled to this jury instruction, I’m not entirely sure. And jury instructions make great issues on appeal. Do you really want to create an appellate issue for your opponent by having me give this jury instruction?”
Hmmm. The proposed instruction is not quite as enticing when viewed in that light.
Okay, okay: I confess that I was once a young lawyer. The judge asked me whether I wanted the jury instruction. I accepted in a heartbeat. The verdict came back in our favor. And I then struggled mightily on appeal to hang onto the trial court judgment in light of that instruction.
The appellate court did affirm.
But perhaps, having learned from my [possible] mistake, you can consider this issue more carefully when you confront it.
Winning is not always what it seems.
Mark Herrmann spent 17 years as a partner at a leading international law firm and is now deputy general counsel at a large international company. He is the author of The Curmudgeon’s Guide to Practicing Law and Inside Straight: Advice About Lawyering, In-House And Out, That Only The Internet Could Provide (affiliate links). You can reach him by email at [email protected].