For my inaugural appearance on what I expect to be a monthly piece for the ABA Journal, I wrote about the propriety and wisdom of arguing with a judge. I posed this question to several lawyers: “When does something matter enough to argue with a judge about it?” As with all the other times I’ve interviewed lawyers about litigation topics (i.e., voir dire strategy and closing arguments), the answers were interesting and instructive.

A friend of mine shared her experience with me about a recent encounter that required her to call a judge’s ruling into question:

I recently had occasion to quickly ponder (if one can quickly ponder), whether to push to be heard orally on a dispositive motion.  I opted to push. A little background: I had filed a motion for summary judgment several months prior to the trial setting, in accordance with the Scheduling Order. Since the Judge was new to the bench, I called her office first and talked to her clerk about the Judge’s preferred procedure on such a motion. I was told I did not need to obtain a hearing date before I filed the motion and that once the Judge read the motion and was ready to hear it, she would issue an Order setting a date. Time went by and I never received an Order and I called and talked to the clerk a few times and was told the same thing on each occasion.

The trial date came and no hearing had ever occurred. I appeared at the trial docket expecting to argue my motion before the trial began but, instead, was handed a copy of an Order entered that morning denying my motion. It is my opinion that on such a dispositive motion that a hearing is required and I also wanted to make the Judge aware of information that had been learned the week prior that changed some of the dates set forth in my motion, which could impact her ruling. Instead, I held a piece of paper with a single sentence denying my motion without a hearing. What to do? Do I push the Judge for a hearing and risk making her angry before we start the trial by calling her procedure and ruling into question or do I stay quiet and proceed to trial? I knew that even if she granted my request to be heard she would likely not change her ruling in order to “save face”.  Was it worth it? Do I or don’t I? Should I or shouldn’t I? Would my client be harmed if I make the Judge angry before we start the trial?

I ultimately decided that I had no choice. I was not familiar with this Judge since she was new to the bench but if she ruled against my client at trial (this was a bench trial), I knew my client would want to appeal and that I should win on appeal given the facts of the case. If I didn’t have a hearing on my motion, part of the facts I wanted in the record would not be present for the appellate court to review. Regardless of the consequences, I had to make a record.

It’s at this juncture that some experience comes in handy. I knew I had to soft-pedal my request for hearing and be very respectful and humble in my request. You never want to put a Judge on the defensive or argue with them right off the bat.  It sets a bad tone and you and/or your client will pay the price, one way or another. When the Judge took the bench and asked if there was anything we needed to take up before calling the first witness, I very nicely told her that although I had received her Order I would like to be heard on my motion and that while I realized she was not likely to change her mind, I did have some information that I would like for her to consider that was not in my motion and in order to properly represent my client I would need to make a record.  With the respectful way I posed my request and by bringing proper representation of my client into play, I think any judge would be hard-pressed to deny such a request.  Sure enough, she granted my request, heard me out and did not change her ruling but, at the end of the plaintiff’s case in chief, she granted my motion for judgment as a matter of law. I think she respected by willingness to call her Order into question but to do so in a non-combative way. Judges desire respect and even when we know they are wrong about something, I believe if you approach the issue with humbleness, you’re more likely to win in the long run.

I’m going to tease you over to the ABA Journal article with this – before you do launch into an argument with the court, you may need to consider whether your position is worth your license … or even your life. Now, go read the article, “When is it wise to argue with a judge? Only sometimes.“

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Photo by Allen Allen