by the Honorable Gerald G. Johnston
Over a twenty-four-year judicial career with the Orange County Superior Court, I was fortunate to serve lengthy assignments in our Criminal, Civil, Probate, and Trust divisions. During this tenure, I came to realize certain best practices in lawyering apply to various case types and practice areas. Following is a short list of such “universal” best practices I have observed to be applicable across a broad spectrum of legal proceedings.
Be Aware of How Your Behavior Is Perceived by the Court Few occupations are less dynamic than judging. The job requires one sit almost motionless most of the day, listen stoically to testimony and argument, and avoid any display of emotion or determination in favor of one side until proceedings are completed. The nature of the process allows a judge ample opportunity to observe and consider the behavior of witnesses and counsel. Lawyers in the courtroom should keep in mind their verbal and non-verbal actions convey information to most jurists. Whether you may be a pen-clicker, a constant phone message checker, or tend to make “non-lexical conversation sounds” (e.g., constant uttering of “ummm” between words), chances are some judge has watched and noted (perhaps with some irritation) your particular courtroom idiosyncrasies. As a litigator, you are subject to the well-known concept that it is best the judge be focused on the message and not the messenger.
No one wins every ruling. How you react when receiving an adverse decision can make a difference in your credibility and standing with the court. Groans, eye-rolling, and heavy sighs will be noticed and generally not appreciated. Judges must make quick decisions during hearings and may sometimes make an incorrect ruling. It is best to avoid incredulous stares, pencil-throwing, or other gestures of frustration when a decision goes in an unanticipated direction. Respectfully asking for reconsideration will generally be welcomed, provided you can make a convincing presentation why the decision should be changed. For judges, it is refreshing and greatly appreciated when counsel remain calm and professional, even in the face of a disappointing determination.
Some common expressions may not serve you well during argument. One that has always caught my attention is sometimes used when counsel disagrees with a ruling. Prefacing the objection by stating “with all due respect” may convey an unintended message. I can speak only for myself in this regard, and perhaps some of my colleagues who have expressed unhappiness with the term. However, when I would hear this introduction to argument from an unhappy counsel urging me to change a ruling, those words would translate into my head as: “You crapulous MORON! How did you even get dressed and find the courthouse this morning?” It may be prudent for counsel to consider prefacing such an argument with a different word choice.
Be Prepared Successful advocacy in court is a learned process. The journey can take time and may include difficult and embarrassing moments. Many accomplished litigators I have encountered over the past four decades have stories of less-than-stellar early courtroom experiences. Most would agree it is our failures, rather than successes, that inspire the greatest professional growth. No matter the nature of a case, lack of preparation is a sure-fire way to lose something you should have won. I will share one of my own experiences which helped to shape my early practice as an attorney.
As a new bar admittee in the mid-1980s, I had gleaned my understanding of courtroom procedure and conduct from watching episodes of Matlock and LA Law. Relying on this self-directed training, I eagerly anticipated my introduction to the world of courtroom advocacy. My very first court trial as a newly sworn deputy district attorney involved a juvenile accused of unlawful possession of beer—hardly a capital case, but a matter of critical importance to me at the time. When the judge invited me to cross-examine the young man, I recall bounding from counsel table and striding purposefully into the well on my way to confront the witness at a distance of mere inches. My mission: to win the case through Perry Mason-like cross-examination of a clearly prevaricating defendant. However, before I could reach my target, the very large courtroom bailiff appeared in my path and barked at me to get back in my seat. I was surprised and embarrassed at this treatment—no one ever prevented Andy Griffith from leaning into the witness stand while dragging the truth from a witness. The judge agreed with his bailiff and less harshly confirmed I must return to counsel table. This deflating moment devastated my presentation. At best it was halting, unfocused, and uncertain. Adding to my humiliation and irritation, the defendant and his counsel both smirked during my inept examination. The trial concluded with the judge finding I had not proven the case (a note to the reader: before starting a trial, research and be prepared to elicit evidence demonstrating all elements of a charged crime). The judge explained I had neglected to ask the citing officer during the case-in-chief if the liquid in the container was, in fact, an alcoholic beverage. I was fortunate to suffer this defeat in the court of a kindly and avuncular bench officer who later invited me to chambers to offer much needed advice and guidance.
He patiently explained the significance of the “well” in a courtroom, and helped me understand the value of forethought, planning, and preparation before trial. I remain thankful to that bench officer for making the effort to help a young, and perhaps annoyingly overeager, young litigator take a first step in the journey to becoming a better lawyer. That experience taught me to carefully look at applicable jury instructions and statutes early and often prior to starting an evidentiary proceeding so that I would have a full understanding of what I must accomplish.
Understand Your Audience and Enhance Your Credibility Lawyering is a craft and requires presentations be framed in a way that is persuasive to the target audience. What works with a jury could be unsound strategy when the trier of fact is a judge. Juries might be swayed by hyperbolic argument, emotional appeal, and righteous outrage. Judges, not so much. With bench officers, the best strategy is almost always tight focus on the proven facts and leading with the strongest legal arguments rather than emotional entreaties.
During my judicial tenure, the attorneys whose work routinely brought a smile to my face provided concise written pleadings, arrived at court well prepared to answer questions and defend their written assertions, and did not unnecessarily savage opposing counsel. As an arbiter of fact and law, my estimation of the credibility (and sometimes ability) of any advocate would be greatly impacted by the soundness of written materials, articulate explanation of their positions, as well as responses to opposing counsel’s arguments, and, perhaps most importantly, respect shown to everyone in the courtroom.
Many years ago, I oversaw a motion for fees in a guardianship matter where the opposing counsel in his filing described the moving party as a corrupt, insatiable vampire intent on sucking every dollar from the minor’s estate. Although opposing counsel had some valid legal arguments, the message was obscured by his relentless legal philippic. His failure to focus the pleadings on the key issue (entitlement to fees) weakened his argument and did little to assist his client.
Courtesy and respect are no less important in the courtroom setting. Attorneys who commence an appearance with finger-pointing and assertions of bad faith against the opposition can diminish their own credibility. Practitioners should keep in mind, the judge will usually know little of the history of relations between counsel. A calm recitation of the facts supporting an assertion of improper conduct by the opposition is really necessary before making an accusation or seeking sanctions. Judges certainly want to be made aware of any improper behavior by counsel. However, if the accusation precedes the proof, the court will likely be unable or unwilling to act. When one attorney accuses another of misconduct, it is important to keep in mind the judge may be compelled to consider credibility of both sides. A calm, courteous, and professional presentation will serve you well in the eyes of the judge. If you take the high road, and your opposition does not, you can bet the judge will notice.
Every judge I have ever known is committed to the ideal of evaluating all cases on merits only. However, this is not done in a vacuum. Our past experiences with both difficult and highly professional attorneys can impact our perceptions and impressions of competence and reliability. Every litigator should aspire to be considered by judges as the type of attorney whose word is reliable and whose legal positions are to be taken seriously. The best way to develop high standing amongst judges is to consistently display those important qualities that encourage trust and confidence.
Respect the Court (Even When You Are Unhappy With the Judge) Both in writing and oral argument, it is prudent to maintain a respectful demeanor with the judge handling your case. A few years ago, I was tasked as a supervising judge to review a matter handled by one of my colleagues. I reviewed a brief filed by counsel in a high conflict litigation case. One attorney dedicated more than a page of text describing what he asserted were examples of egregious misconduct and bias from his trial judge. After a lengthy review of the case, I could find no evidence these assertions were true. The judge remained on the case and issued a fair and proper judgment. I believe the attorney who made the accusation prevailed at the end of trial, but I would imagine his client was left wondering during the pendency how his attorney’s actions might impact the outcome.
Educate Your Client and Manage Expectations Litigation attorneys must navigate the path of pursuing effective courtroom advocacy and following the direction of the client. Occasionally, these two goals will clash. Naturally, most clients will trust their attorneys to understand and adopt a strategy to win the case.
However, in high-conflict cases, a client may be more assertive with counsel about using confrontational tactics and presentation. If an upset client demands aggression and invective, the attorney should consider whether such an approach will diminish the chances of an advantageous outcome. In my experience, when the client drives the litigation, the chance of positive results dim.
I have also found that when counsel takes steps to help the client recognize the weaknesses as well as the strengths of a case, and to have a realistic understanding of possible outcomes, the challenges created by high emotion can be dampened. Clients who fully appreciate the risks of losing at trial, are often more open to a negotiated resolution.
In Written Pleadings, Remember Less Is More Civil judges are quite busy managing large inventories of cases. Reading lengthy pleadings and motions can become a slog when counsel fail to concisely and clearly present their positions. Your judge will be grateful when you present your strongest legal arguments early in your briefs. If you can, stay under any preset motion page limit. Trust me, it will be noticed and appreciated.
All lengthy e-filings, particularly those with voluminous exhibits, should have bookmarks included to help the court efficiently examine the document.
Conclusion This review addresses only a few examples of habits displayed by great litigators. Positive reputations are only built over years, but can be diminished by regrettable moments of emotional frustration. It is crucial to constantly maintain a professional demeanor and to display respect for the dignity of the court. Judges tend to take notice of those who are routinely prepared, professional, and courteous. In my experience, attorneys who display these behaviors tend to thrive in the legal community, earn the respect of the bench, and achieve superior outcomes for clients.
Submitted for your consideration, with all due respect.
The Honorable Gerald G. Johnston offers mediation and arbitration services through JAMS. He can be reached at gjohnston@jamsadr.com.