Don't Cite 'Horizontal Precedent'—and Other Tips From a Trial Judge

One of the great joys of being a female judge is when I answer the phone and the caller assumes I am the judge’s secretary. Often, it’s a criminal defendant’s mother or girlfriend trying to spring him from jail. Without identifying myself, I explain “the judge’s” procedures, referring to myself in the third person like I am a tin-pot dictator. Finally, the caller, weary and cynical from the courthouse runaround asks, “And with whom am I speaking?” There I am—busted. On other occasions, I answer the phone and it’s an attorney on a civil matter and the conversation turns out to be not so civil. Again, the conversation ends with, “And with whom am I speaking?” This time the caller is there—busted. 

Attorneys should know instinctively that their communication with chambers will undergo scrutiny. Judges and their staffs are more like family than co-workers. A noteworthy conversation with one will be quickly told to the others. As such, communication with chambers should never be adversarial. We want to help you. Like you, we are committed to advancing your case to conclusion. In light of our common goal, I suggest the following:

• Be prepared when you call the office. At a minimum, know the case number, parties’ names and the court date. Much of my staff’s time is wasted returning phone calls to find out these basic facts.
• Be nice. There is no excuse to be rude to my staff. I think some callers lack self-awareness as to how they come across to others. The law attracts smart people who like to get things done. You may feel that your position is right and ruling in your favor is a foregone conclusion. Guess what? So does your opposing counsel. Sniping at my staff is a sure-fire way to get the wrong type of attention.  My staff attorney got an email once that said, “Tell the judge to rule according to the guidelines.” Also, be nice to opposing counsel.  Copy the staff attorney on snarky emails at your own peril. And don’t argue with my staff attorney over one of my decisions. If you want reconsideration, move for it. 
• Don’t use the logic of “Horizontal Precedent.” As trial judges, we know that we are bound by vertical precedent from appellate courts. Horizontal precedent is when you state, “All the other judges do it this way.” Did that seventh-grade logic work on your mother? A reference to a judge whom I do not respect might incline me to do the exact opposite.
• Check the judge’s standing order. Communication may be unnecessary after its review. And it’s perfectly OK to call my staff and inquire as to my preferred way of doing things. However, it’s not OK to use that call as a fishing expedition. “If I file this, how would the judge rule?” Fishing expeditions can quickly devolve into ex parte communication, which is also a big no-no.
• Speaking of ex parte communication, remember, the rules of professional conduct are there for your protection. If you’re calling the chambers, advise the opposing counsel that you will be contacting the judge’s staff and limit your inquiries to scheduling. A phone call may be quicker, but an email copied to the other attorney is a good way to avoid problems.
• Don’t use my staff attorney as your staff. I can’t tell you the times an attorney or their paralegal called my staff attorney for advice on legal issues. The call might be couched in the “judge’s preference” language, but it is simply seeking legal guidance from my staff attorney. For example, a senior partner in a large firm called my staff attorney and asked how to add a party. His response, “There’s a code section for that.”
• Be considerate of our time. Like you, time is a precious commodity to us. When I look at a calendar, it always surprises me how little trial time I have for the year. This scarcity will only become more pronounced as we dig ourselves out of the COVID-19 backlog. If you are close to settlement, please give us a call so we can have another case as backup. We often get calls on Friday at 8 p.m. —or an email on Saturday or Sunday—telling us the case will not be tried on Monday. While we are happy that you have come to a resolution, late notice prevents us from advancing other cases. In addition, jurors may be called in on Monday solely for your case.