'Snarky Comments,' 'Watering Down' and Other Things Judges Hate, Per Bench Panel
An appellate lawyer recently had an opportunity to turn the tables on a panel of judges at the State Bar of Georgia headquarters building in Atlanta for a conference on “Handling Big Cases."
April 23, 2018 at 08:53 AM
4 minute read
An appellate lawyer recently had an opportunity to turn the tables on a panel of judges at the State Bar of Georgia headquarters building in Atlanta for a conference on “Handling Big Cases.”
Michael Terry of Bondurant Mixson & Elmore—who has answered countless questions from panels of judges in oral arguments—did the asking for a change. The April 13 program title was 'Handling Trials & Appeals More Professionally.” The panel included: Douglas County Superior Court Judge Cynthia Adams, Fulton County State Court Judge Jane Morrison, Georgia Court of Appeals Judge M. Yvette Miller and Court of Appeals Chief Judge Stephen Dillard. When it was over, Terry had teased out some rare revelations from judges about what they really don't like.
Based on the answers to Terry's questions, here are 10 tips on what not to do in front of a judge.
1. Play to the cameras. Terry asked the judges if they encounter “lawyers putting on a show” in big cases. Morrison answered with a question: “Is that just big cases? All the world's a stage,” she said. Dillard reported that he saw “some of that” when cameras were present before the court began live stream and video coverage of all oral arguments. Now, he said, “everyone forgets the cameras are there.”
2. Be nasty. “Once in a while, we see snarky comments,” Miller said, particularly when the stakes are high. “We don't like to see that.”
3. Bring up an issue on appeal that wasn't argued in the court below. Dillard said he's seen lawyers ask the Georgia Supreme Court to review Court of Appeals decisions and slip in new arguments. The justices don't fall for it. “They will call you out,” Dillard said. “I've seen it over and over.”
4. Read from the briefs. All the judges—appellate and trial court—said they read the briefs before they hear arguments. “Tell me something I haven't already heard,” Morrison said. “I want to hear something else from you if you got it.”
5. Write an excessively long brief. “There's a danger to your credibility if you are throwing everything you've got into the brief,” Dillard said. “Be careful about watering down your strongest points by putting in weaker ones.”
6. Let the client bring in a rowdy entourage. “It's the duty of the lawyer to keep the client in line—and the witnesses and their groupies sitting behind you,” Morrison said. “The judges can see it all.”
7. Seal records unnecessarily. The judges said they're encountering more of this with electronic filing because it's so easy to “hit the seal button” when it's not necessary. They said they're having to hold hearings to unseal documents. Morrison warned that, if lawyers seal documents improperly, she opens them until the hearing. “There'll be 10 days of an open window before a hearing,” she said.
8. Flat-out lie. This came up in answer to a question from the audience: What to do when opposing counsel makes up facts and lies. “You have a duty to report that lawyer to the bar,” Dillard said. “If that's going on, it's the end of the case.”
9. Be a sore loser. The judges said they can assess lawyers' character and professionalism by watching how they deal with defeat. Adams said she saw this even in her first year on the bench. Her advice: “If it doesn't go in your favor, take it with a smile and show your frustration later—maybe in your car.”
10. Forget what's most important. For better or worse, lawyers leave lasting impressions with judges that carry over to their future cases. Dillard cautioned several times to “remember no case is worth your reputation, no matter how big it is.”
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