Courts

Meaningful Signals From The Bench

There might be a reason that you'll be happy you're losing on all your objections.

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A long time ago, I was trying a jury case. I proposed a jury instruction that was pretty aggressively in my favor. The judge said, “I think you’re right on the law, so I’m inclined to give this instruction. Are you sure you want it?”

I was a young man. Of course I wanted the instruction! It would help me win the case: “Yes, Your Honor. Please give the instruction.” I was delighted.

The judge was an older man. He was thinking something different: “My sense is that the jury is likely to rule in favor of this young man’s client. But jury instructions are fertile ground for appeal. The last thing that I want — or that the young man’s client wants — is for this case to be reversed on appeal because of an improper jury instruction. I’ll ask the young man if he really wants the instruction.”

(And then, again to himself, after my enthusiastic response: “He didn’t even understand what I was asking. He’ll learn. Experience matters, after all.”)

An even longer time ago, a guy I knew from high school was trying his first case — representing the federal government in a bench trial in federal court.  He and I may have been two years out of law school at the time. I trotted over to court one Friday to watch my buddy in action, and we went out to dinner that night.

My buddy was psyched: “The judge really trusts me! The other side objected to a couple of things that we had included in a deposition designation. I explained why the objections were wrong. The judge ruled in my favor! The deposition was transcribed only last night, and the judge surely hasn’t yet read the transcript. I’ve established so much credibility that the judge is ruling in my favor without even having looked at the testimony. That’s a great sign!”

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The judge, of course, was thinking exactly the opposite: “I’ve decided that I’m going to decide this case against the federal government. [That is: My buddy was going to lose.] Since I know who’s ultimately going to win and lose, my task now is to minimize the risk of reversal on appeal. I’m therefore going to rule in favor of the government on every objection from now until the end of the case. Then, when I ultimately decide the case against the government, the government will have fewer issues to take up on appeal.”

My buddy continued to win all of his objections at trial, thinking that he was a fine, credible lawyer. The government ultimately lost the case. And the government had relatively few issues to take up on appeal.

Experience matters, after all.

I flashed back to those events during a bench trial I attended on behalf of the company for which I now work. Late in the trial, the judge ruled against my company on evidentiary issues several times during the course of the day.  The senior lawyer trying the case on my company’s behalf was delighted. He reported on the “trial team call” that night: “Things are looking up for us. The judge is ruling against me every time I object.”

I remembered my ignorance of 30 years ago: “It might strike young lawyers as odd that you’re happy to be losing all of the objections you make. Why don’t you explain that, for the sake of the folks on the phone?”

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He did.

We lost the objections, but we won the trial.

Experience matters, after all.

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 Drug and Device Product Liability Litigation Strategy (affiliate links). You can reach him by email at inhouse@abovethelaw.com.

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