There is a delicate balance for the lawyer who is being unfairly chided by a judge
By RICHARD MEEHAN
The Cool Justice Report
www.cooljustice.blogspot.com
Oct. 7, 2009
EDITOR'S NOTE: This column is available for reprint courtesy of The Cool Justice Report, http://cooljustice.blogspot.com
How does a lawyer deal with a contentious judge during a trial?
This question was posed to me during a recent appearance on TruTv's with Ashley Banfield.
We reviewed a televised trial in which the defense lawyer was constantly fighting with the judge over the manner in which the attorney was stating objections. The judge became inpatient and his intolerance of the lawyer's approach became obvious to the jury. This was always a lecture topic when I taught trial practice in law school.
Our judicial system is like a medieval fiefdom. Judges are the lords demanding respect from the commoners -- including the lawyers.
Generally, lawyers and judges share a mutual respect. Lawyers avoid familiarity with judges, even when engaged in informal discussions in chambers or meetings in a hallway. Rarely do you overhear a lawyer address a judge by first name. Even in social situations, most lawyers will always call a judge by his or her title or as "Your Honor."
In the medical world or the business world there are hierarchies as well, but the social compacts that exist in those worlds don't demand such formality. In the legal world judges don't make "requests," they issue "orders" which lawyers are required to obey. The consequence of failing to adhere to a judicial order can involve sanctions imposed on the litigants and even referral to the Statewide Grievance Committee to discipline the disobedient lawyer.
In the televised trial the lawyer was engaging in what judges call "speaking objections." Courtroom protocol requires that a lawyer objecting to evidence should stand and simply state, "objection." The judge may then ask the basis of the objection. This should be done succinctly, without a speech in the presence of the jury. If further argument is needed the judge will either invite the attorneys to a sidebar conference outside the hearing of the jury or excuse the jurors from the courtroom. With "speaking objections" lawyers attempt to inject their view of the facts into the objection, generally to get a point across to the jury rather than advance an argument to the judge.
Each judge has a different tolerance level for lawyers in these exchanges. Generally, experienced judges and trial lawyers find a balance during trials and avoid confrontation. Ultimately, the judge has the upper hand, possessing the power to rule on the objection.
Occasionally, as in the TruTv trial, the lawyer keeps pressing the point, inviting a stern rebuke. The impression left with the jury can subtly influence the outcome of a case. Some jurors trust the judge as their protector in the courtroom. The judge ostensibly represents fairness and due process of law. When the judge and the lawyer begin to battle, often the lawyer is perceived as disrespectful.
There is a delicate balance for the lawyer who is being unfairly chided by a judge. My father had a saying he shared with me as a fledgling lawyer: "You can't try cases on your knees." Sometimes you have to stand up to the contentious judge to bring the atmosphere in the courtroom back to neutrality.
"Respect the robe even if you don't respect the person," was my father's way of expressing proper courtroom demeanor. We honor the men and women wearing the judicial robes, not necessarily for who they are but what they represent. If the jury perceives that the judge is being unfair in his or her comments the lawyer becomes the underdog and jurors start to feel empathy. Learning how to do this takes years in the courtroom. Some lawyers figure this out.
Bridgeport, CT attorney Richard Meehan Jr. was the lead defense counsel for former Bridgeport Mayor Joseph Ganim's corruption trial. Meehan is certified as a criminal trial specialist by the National Board of Trial Advocacy since 1994 and serves on the organizations Board of Examiners. He is a Charter Fellow, Litigation Counsel of America -- Trial Lawyer Honorary Society. Meehan has also obtained multi-million dollar verdicts and settlements in complex medical and dental malpractice and personal injury litigation. He is a past president of the Greater Bridgeport Bar Association and appears regularly on TruTv. His column also appears in the Sunday Norwich, CT Bulletin. Website, www.meehanlaw.com
1 comment:
Good article, but could have done without the plug for TV. However, procedurally I RESPECTFULLY disagree about the manner in which an objection should be made. It is my humble experience that the attorney should 1. STAND, 2. State in a clear and respectful way TO THE JUDGE (not to opposing counsel as some do): "Objection". 3. State the LEGAL basis of the objection (for example: "Objection your honor...Leading".
It is an almost rote response for experienced trial lawyers. The main disagreement here is that many judges will chide an attorney who simple "objects to anything" or expects the judge to know the basis of the objection. IF YOU DON'T know; why should the judge have to figure it out? And although some will simply rule without any mention of the basis this is WRONG, since the trial record will therefore be incomplete and appellate review clumsy or unavailable. Therefore, all trial lawyers should learn the Rules of Evidence; common objections, and practice and whether the judge likes it or not STATE the LEGAL basis of the objection, briefly and succinctly.
Although it is true that many defense (insurance especially) trial lawyers are trained to "object to everything" (to throw off the opponent or jury or judge or all three) The response from the opponent should be: "Judge, what is the legal basis?"
All that said, if you can get in some speaking objections DO IT. It does make a difference and most judges allow some of it. I especially like the "underdog" part. Juries are smarter than one may believe, and they don't like bullies; even if they are anointed,um I mean appointed Judges.
Great article Rich.
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