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Friday, March 5, 2021

How to Infuriate a Judge in 4 Easy Steps

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Depending on your perspective, Judges lie somewhere between a necessary evil and the pinnacle of the justice system.  Whatever your view, however, the fact is that many areas of law require interaction with a Judge.

Any long term readers/listeners will know that I’m a litigation lawyer.  As a result, although I don’t spend as much time in Court as everybody seems to think I do, it’s not too uncommon that a trip to the Courthouse is necessary.

With that in mind, I thought we might take a look at a fairly important aspect of advocacy – not annoying the Judge.  An annoyed Judge simply makes your job much harder, and sometimes impossible.  It’s also embarrassing if you were the cause of that irritation, which can be a problem if your clients, colleagues or competitors are around.

I’m going to share 4 ways to annoy a Judge – I welcome more so please let me know if you’re seen anything spectacular yourself!

1. Be Late to Court

This still happens.  It’s always a bit surprising and it’s always a complete debacle.

When the Judge calls your matter on, you have to be there and you have to be ready.  Whether it’s bail applications, a callover or a bankruptcy proceeding – you need to be there well beforehand.

If you’re cutting your timing fine enough that “our watches must be different” is the excuse you’re thinking about using, then you need to rethink your strategy.

The only way out – an abject apology.  Unless your excuse is extremely good, I’d generally just recommend sticking with the apology unless you’re asked to explain further.

2. Disorganisation

Picture this: your matter has been called, your opposition has spoken, and it’s now your turn.

You stand, begin your introduction…. and then you go to get your first case to speak to.  And you can’t find it.  You also can’t find your speaking notes or submissions.  Your court documents are in piles in front of you that you can’t remember the system for.

After around 30 seconds, the silence becomes a little embarrassing.  The other practitioners behind you are staring at their feet because it’s so awkward.

What is the Judge thinking?

That should be sufficient incentive.  Know what you have, where it is, and how to find it if you need it.  Use tabs, colours, piles, folders or whatever takes your fancy – just use something that works.

3. You’re Not Prepared

Connected with, but not identical to, disorganisation, a failure to prepare is going to annoy any Judge who has the misfortune of listening to you.

But you already knew that.

So instead of repeating the bleeding obvious, I wanted to talk about HOW MUCH preparation is required.  Reality check – you can’t spend 50 hours learning the entire law relating to Bankruptcy for a 10 minute hearing.

A certain amount of wisdom is required, and this is where risk creeps in.  Obviously zero preparation is too little.  But there is such a thing as too much for many types of Court hearing.

Here are my essentials – these are the things you must know:

  1. The facts – who is your client, what is their problem, and what does the affidavit material (if any) you have filed actually say.  Similarly, what does the other side’s material say;
  2. The purpose – what are you there for, what is it you want, and what is the Court’s power to do what you want;
  3. The principles – what is the fundamental law (statute or cases) dealing with what you want and what the other party says they want.

It’s the final one where we have a tendency to get caught up – we just keep researching.  However, knowing when to stop is an excellent practice to develop.  Experience helps here – or just ask somebody who’s done the same thing before, if you can find one.

4. Have a Hissy Fit

I am all for the passionate argument of your client’s case, put forward fearlessly and forcefully.

But letting your emotions get the best of your conduct is a BAD idea.  What it really does is to have the Court start to think you are wasting its time with an argument that has no merit and is founded completely in emotion.

It is damaging to your client’s case.  It also suggests that your objectivity on the assessment of your client’s arguments could be impeded, which is a professional ethics issue.

That’s easy to say in the fairly dispassionate world of taxation law and corporations litigation, I know.  It’s far more difficult if you are in family law or criminal law.

Either way though, it’s important to keep a grip on your reactions to comments from the other side and the bench.  Inside you might be going berserk, but on the outside you need to be in control, from your facial expressions, to your hands, to your feet, to your tone of voice.  A bit of tactful emotional energy in your speaking can be beneficial – but keep it under your control, not the other way around.

Any More?

Have you annoyed a Judge?  Survived to tell the tale?  How’d you go about doing it, and how can we avoid it?  Let us know in the comments!

Happy lawyering!

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  • One of the things that annoys Judges is failing to observe the ‘formalities’ of Court ie. asking to be excused before you leave the Bar table, leaving the Bar table unattended, failing to stand when being addressed by the Bench. Such little things aren’t going to get you thrown out of Court, but they make a difference in your overall professionalism and demeanour.

  • Alina Kondek-Tuchowska says

    March 5, 2014 at 10:25pm

    Agreed Alina – I seen once, very irritated Judge, when a Lawyer have very high and noisy heels and try walk very quickly to the Bar table. The Judge said: ” can you walk more quietly”?

    PS. If I can not sleep, and sent emails, please do not answer at night, that do not happened very often. Please reply when you have time.

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