Taylor J. Cohen, Pond Lehocky Stern Giordano.

Attorneys are sometimes faced with a difficult tightrope walk between being zealous advocates for their clients and maintaining deference to the judiciary. The balancing act becomes even more difficult when the judge displays openly partisan or inappropriate behavior.

You have a duty to represent your clients to the best of your ability. When faced with a hostile judge, you need to push back. But how much? Where's the line? If you object to a judge's question, will that make the judge even more hostile to your client's case?

How to handle such a situation is not taught in law school and, as a young attorney, impossible to know how to prepare for. The judge, the opposing attorney and even your clients are sometimes more than twice your age. This makes it an even more daunting prospect to speak up when a judge has crossed the line from impartiality to advocacy. However, despite your age, your client is looking to you for guidance, protection and help.

I recently had such a situation in a workers' compensation matter. I was representing a 45-year-old single father of five, who had been injured while working as a driver for a moving company. The client was unloading a truck when his ankle was caught and crushed between two pallets of ceramic tiles. At the time of his first hearing, he had been out of work for nearly two years.

Hijacked Direct Examination

At this first hearing, the client testified, covering aspects of his employment, work injury and treatment related thereto. During his testimony, the presiding workers' compensation judge took over most of the direct examination, but not asking questions as a plaintiffs lawyer would, but rather, as a defense attorney, utilizing leading questions in an attempt to disprove the veracity of the injured worker's case. It was evident by her questioning that she was looking for different defenses to our claim.

I thought the manner of questioning was highly irregular and inappropriate; however, it is difficult to challenge a judge during such a situation. There are many factors to be considered in a split second: the judge is the ultimate fact-finder and should be given some deference in questioning; objecting to the questioning or otherwise challenging her could sour her on the case; eliciting the proper testimony to meet the burden on a claim petition; and ensuring the client feels represented and protected.

It is important to note that that this was a first hearing on a claim petition. So far, the only evidence of record was my client's uncontroverted testimony about the nature of his employment, the work he performed, how he was injured performing that work and the extent of his injuries.

'Nuisance Value'

At this point in the proceedings, no medical evidence had been submitted and no other witness testimony had been provided. In fact, the defense had not even scheduled an independent medical evaluation of the claimant.

Despite that, the judge, on the record and with my client present, said to the defense attorneys, “if both parties want to contribute some type of nuisance value into this and make an offer to the claimant, we can. If not, we can litigate this thing for a year.”

Nuisance value, to put it simply, is a small amount of money intended to be a “token” to the claimant, allowing the defendants to rid themselves of the “nuisance” claim.

My client, a 45-year-old single father of five who had been out of work for two years because of a legitimate work-related injury, was indirectly told by the judge presiding over his case, that it was worth “nuisance value.” I thought it was inappropriate for a judge to suggest this case could be resolved for nuisance value. It was premature for any settlement negotiations, especially those suggesting the case lacked merit.

An Off-The-Record Monologue

The judge then went off the record and launched into a five-minute aside directed at my client, explaining she had been doing this job for over a decade, seeing paraplegics and cops shot in the line of duty who returned to work. I was not sure of the relevance and how that pertained to my client's case, but she continued. She informed my client that workers' compensation is not a “be-all and end-all” and that he should be looking to return to work.

She continued with her speech until I stopped her, saying, “with all due respect, Your Honor, I'm going to request you stop talking to my client.” She attempted to explain herself, but I again requested she stop and dismissed the client from the room. She eventually apologized to me, explaining she may have been wearing her “mediation” hat, whatever that means.

The situation showed the judge had become a partisan, not an impartial arbiter. It left myself and my firm with the prospect of seeking recusal.

As a postscript, my client's case was transferred to another judge and eventually settled for much more than mere nuisance value.

A Fine Line: Decorum, Deference and Advocacy

This nightmare scenario shows the difficulty of handling a judge who is hostile to your client's case. On the one hand, there's the need to maintain decorum and deference to the judiciary. But those values need to be balanced with zealous advocacy of our clients.

We're representing people and we work for our clients. For lack of a better phrase, they're entrusting us to “have their back” against anyone hostile to the receipt of the benefits for which they are entitled. Unfortunately, in this scenario the hostile party was the judge.

I learned that even when disagreeing with a judge who you believe is acting inappropriately, it is important to remain respectful but forceful when necessary. Respect for the judge's position requires giving them some leeway, but when they cross the line into outright advocacy for the other side, your job as an attorney is to protect your client, but also the profession. As such, you need to speak up.

In this case, I thought the judge had crossed the line with the “nuisance value” comment and the aside directed at my client. That is when I stepped in and asked her to stop speaking to my client. In the end, it was most important to me that my client felt protected by his attorney.

Hopefully, you will not experience a judge directing such animus to your client or their case as I experienced here. But if you ever do, I hope my scenario provided you with some guidance.

Taylor J. Cohen, an associate at Pond Lehocky Stern Giordano is a workers' compensation attorney. Contact him at [email protected].