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(323) 652-9451 - LAAn article in the Wall Street Journal Tuesday discussing the Rajat Gupta insider trading trial in NYC pointed out that the judge and the accused’s defense attorney, who are apparently longtime friends, have been cracking jokes throughout trial in and outside the presence of the jury. The article posed the question, but did not weigh in, on whether humor in the courtroom is a good idea? Well, when it’s the judge making the wisecracks there’s not a lot counsel can do, so why not laugh along. But when, if ever, is it appropriate for counsel to inject levity into the courtroom?
I think some humor can serve two useful purposes. First: it breaks the tension that naturally develops in a courtroom, where freedom, money, reputation or all three are at stake. Second, depending on timing, humor can break the monotony and actually “wake up” the proceedings a bit. The problem is, the parties, their lawyers, the judge, the clerk, bailiff, court reporter, observers and, most importantly, the jury, may find different things funny (or not so funny). An intentional joke can fall flat or, worse, offend. That said, here are my thoughts on the uses of humor in the courtroom:
1. It’s not appropriate when it’s not appropriate. This presumes we all possess at least some judgment and, let’s face it, some of us don’t. So, by way of illustration, when the subject matter of the trial is catastrophic injury (burn victims, etc.) or heinous crimes (rape, murder, etc.), there’s a 99.9% or better likelihood that any joke is going to offend someone. So steer clear. Don’t even try it. There’s probably nothing funny to Rajat Gupta about going to jail and facing jail time, yet it’s his own lawyer making the jokes, so presumably it’s ok. (“What, I’m paying you $1,000 an hour and you’re making jokes?”)
2. Take your cue from the judge. The judge always sets the tone of the courtroom. If the judge makes a funny, then humor may be acceptable in his or her courtroom. Pay attention to whether the judge allows humor when jurors are present. Even if laughter is permitted outside the presence of the jurors, a joke could be sanctionable conduct if made when there are jurors present, particularly if your opponent or his/her client is the butt of the joke.
3. Know when to stop. Here, again, we need to exercise our judgment and some of us don’t have any. So, to be safe, stop while you’re ahead. If something you said elicits a chuckle, leave it there. Because I’ve never been great at timing or telling jokes, I would never intentionally try to be funny in the courtroom. The stakes are too high and I don’t want to risk it. When I have been funny, however, it has always been accidental and usually something self-depreciating I’ve said or done. People seem to appreciate humility.
So . . . in my view, using humor in the courtroom is a mixed bag. I almost always appreciate it when the judge says something to break the tension, but I’m loath to try it myself. What do you think?
Learn MoreThis excerpt from Atticus Finch’s cross-examination of Mayella in To Kill A Mockingbird highlights why you might want to prepare your witness for a potentially challenging cross-examination.
[youtube https://www.youtube.com/watch?v=44TG_H_oY2E?rel=0&w=560&h=315]
Learn MoreIn the last post I talked about the concept of a “managerial” judge. Some have suggested that having an overly involved or controlling judge may not be a good thing. Having litigated several cases before micro-managing judges over the years, I’ve come to believe that, in most instances, my clients will tend to benefit from our case being assigned to a judge who employs “hands-on supervision of cases from the outset, using various procedural tools to speed the process of dispute resolution.” Here’s why.
First, parties and lawyers involved in a civil dispute need someone to take charge and crack a whip. Picture, if you will, a giant sandbox filled with sand toys. In each corner there is a 3 year-old who is told by his/her parent to “do whatever it takes, but be courteous” to capture all of the sand toys. The ensuing exchange among the toddlers–admonition to “be courteous” notwithstanding–would soon turn ugly. This is what many lawsuits turn into, despite the involvement of lawyers who are reputed to be educated, ethically duty bound professionals. Without a strong, hands-on judge, a dispute over the breach of a contract will too often turn into the equivalent of a toddler sandbox fight. Even with a strong judge lawsuits frequently devolve into bare knuckle brawls. (I still have bruises.)
Second, I find that hands-on, managerial judges tend to be more consistent in their rulings than judges with a more laissez-faire style. It is much easier to plan and execute strategy when you know how your judge typically handles a particular issue. Managerial judges often issue their own set of rules regarding how they want pretrial matters handled. Get these rules and follow them religiously! You will likely remain in pretty good stead with the judge. In fact, following a managerial judge’s rules is a great way to gain an advantage over a disorganized opponent who fails to strictly follow the rules.
Finally, managerial judges tend to put a lot of energy toward settling cases. A laissez-faire judge will allow a case to take its own course and the parties to enter settlement negotiations whenever they feel the timing is right. This is almost always in the days or weeks just before trial. The problem with this approach, and the reason a managerial judge is better in my view, is that parties can save a lot of fees and costs if they are forced to explore settlement earlier. Also, when cases settle earlier it helps free the clogged courts. This, in turn, allows other cases to get to trial (or otherwise resolve) sooner, which gives judges freedom to give more individualized attention to their dockets.
Make no mistake, appearing before managerial judges can be difficult. They develop and impose their view of how the case should progress and the parties go along for the ride. On balance, however, I think there are benefits to a heavy-handed judge which outweigh the difficulties, and I’d pick one over a hands-off, laissez-faire judge any day.
Learn MoreIn the course of researching a question about judicial discretion, I recently came across an article discussing “managerial” judges. The author, quoted below, argued that managerial judges are dangerous and something which should be discouraged, if possible. Is this fair?
The term “managerial” judge was reputedly coined in a 1982 Harvard Law Review article by Judith Resnick, entitled, ironically, Managerial Judges. She used the term to describe a judge who employs “hands-on supervision of cases from the outset, using various procedural tools to speed the process of dispute resolution and encourage settlement.” Thornburg, “The Managerial Judge Goes To Trial,” 44 U. Rich. L. Rev. 1261 (2010) (citing Resnick’s article).
This definition sounds neutral and constructive enough. But trial lawyers who have lived with a case presided over by a managerial-style judge know they can be difficult, unpredictable and downright scary. The key to their danger lies in the phrase “using various procedural tools.” Consider some examples. The simplest I can think of was a judge who, seeing that the parties were disinclined to seriously discuss settlement, scheduled a lengthy trial to start on December 26th, the day after Christmas. Other judges routinely withhold or time issuance of rulings to impose maximum leverage on one or both parties to come to the bargaining table.
When I was a first year lawyer I witnessed a California Superior Court judge order the entire legal staff of a Big Three automobile manufacturer to travel from Michigan to California to attend a settlement conference the next day because the judge felt the car maker was not being appropriately generous in settlement negotiations. Put yourself in the shoes of the car maker’s lawyer (my boss at the time) telling our client over the courthouse pay phone (this was in the early 90s) to round-up her colleagues, pack a bag and get to the airport!
I’ve seen and heard of other judges doing radical things with discovery or the presentation of evidence, like completely rearranging the order in which the parties presented their respective cases to the jury. This seems less calculated to pressure settlement negotiations, and more to fit the judge’s personal vision of how the case should progress.
Whatever the purpose, there is no question that, at least in Federal District Court and California civil courts (where I practice) judges possess enormous discretion to dictate, with extreme detail if they desire, how a case progresses from filing to resolution. The question is whether judges who seize this discretion and micro-manage cases are furthering or hindering justice.
In my next post, I’ll explain why I think the parties to a lawsuit actually benefit from being assigned to a judge with a managerial style.
Learn MoreFollowing my post yesterday about the California Bar’s exploration of a possible skills requirement, I was pleased to see that my alma mater, Loyola Law School, has rolled out a new “Concentration” program which, according to the Loyola Lawyer, will require students participating in the program to “participate in at least one semester-long simulation or live client experience.” The Concentrations are in Civil Litigation and Advocacy, Corporate Law, Criminal Justice, Entertainment/Media Law, Environmental Law, International and Comparative Law, Public Interest Law and Tax Law.
Nice work!
Learn MoreThe California State Bar has apparently formed a task force to explore whether to “develop a regulatory requirement for a pre-admission practical skills training program” for new lawyers. Is this a good idea?
I think requiring a prospective new attorney to complete some kind of practical skills training is a really good idea. With some caveats.
First, the requirement shouldn’t be one-size-fits-all. In the perfect world, every prospective lawyer would get some exposure to various practices before he/she focuses, by choice or necessity, on a single area. Many of us litigators will wonder until we retire what it would have been like to practice as a transactional lawyer (and vice versa). That said, it would take a major overhaul of the American style of legal education to expose everyone to a little bit of everything. A more palatable approach would be to give prospective admittees a range of reasonable options for fulfilling the requirement.
The second caveat would be to avoid attaching a mandated proficiency level to the skills requirement. In California, at least, passing the bar examination is hard enough. Of the 4,382 people who took the California bar exam this past February, only 42 % passed and only 53% of those taking it for the first time passed. Those kind of statistics can be really discouraging to someone who invested 3 or 4 years of their life and roughly $100,000 toward a professional career. We don’t need to make the admission process more intellectually challenging.
I would argue that we do, however, owe both new practitioners and the consuming public an obligation to help ensure someone who holds a license to practice law has some basic practical skills. By the time I graduated law school and passed the bar examination in 1993, I had already “clerked” for two litigation firms. I had been exposed to depositions and court (as an observer), I had written, copied, blue-backed (remember those?), served and filed pleadings and motions. In short, I had a decent idea what courtroom lawyers did for a living. Although the early 1990s are typically remembered as a “challenging” job market for students and new admittees, most of my classmates who desired experience during the summers and their second and third years of law school found it.
From what I read and hear, the present legal job market makes the “challenging” early 1990s look almost like a “boom” period. At a time when new admittees who graduated at the top of their class from a top-tier school are struggling to find a position as an associate anywhere, it makes me believe the opportunities to gain practical experience before passing the bar examination are more limited. This will need to be addressed or our profession (and reputation) will (further)erode.
The major criticism of a skills requirement is that it will increase the cost of legal education. I fail to see the link between ensuring that bar applicants have some skills to go along with their theoretical training and higher law school cost. It may be necessary to adjust the nature of what is taught, meaning more clinical programs. Or, the solution could be training through volunteer or pro bono programs which, in addition to fulfilling the skills requirement, provides the disadvantaged with greater access to needed legal services.
Without the training I received during my two years as a “law clerk,” I still would have received training at the first firm who hired me as a lawyer. The problem now, as I see it, is that many are graduating law school, passing the bar and entering the marketplace without a job, forcing a great number of those who intend to enter private practice to open a solo practice without any skills training. These newly minted professionals will learn, eventually, by a process of trial and error, but woe to those who hire them!
Learn MoreAnyone who has argued a complicated summary judgment motion knows the challenges of making sure the record is robust to provide for appellate review, if necessary. This is particularly true given increasingly “jammed” law and motion calendars, which sometimes cause judges to encourage counsel to make oral argument brief.
Against this background, the Second District California Court of Appeal issued an opinion last week which highlights an important rule when briefing or arguing summary judgment motions. In Tarle v. Kaiser Found. Health Plan, Inc. (2012 WL1850926), an employment discrimination case, the employer moved for summary judgment. The employee opposed the motion, including submissions of 750 pages of evidence. In reply, the employer submitted 335 separate objections to the plaintiff’s evidence. Despite a second hearing and briefing opportunity, the plaintiff did not specifically oppose, in writing or during oral argument, the objections to the plaintiff’s evidence.
The trial court sustained nearly all of the objections to plaintiff’s evidence and granted summary judgment. The plaintiff appealed and tried to raise the issue of the court’s sustaining of defendant’s numerous evidentiary objections. Although the Second District Court of Appeal reversed the summary judgment (on separate grounds), the appellate court barred the plaintiff from arguing the objections, based on her failure to argue orally or in writing against the objections at the trial court. It said. “We conclude that a party who fails to provide some oral or written opposition to objections, in the context of a summary judgment motion, is barred from challenging the adverse rulings on those objections on appeal.”
This opinion reinforces the importance of presenting an organized oral argument on summary judgment motions. Where a judge is “rushing” counsel to make their argument unduly brief, it may even become necessary to take steps to assure that the record reflects this fact (which, itself, could raise an impatient judge’s ire). Tread carefully!
Learn MoreIn addition to learning as much as I can about my opponent and the nature of his or her practice through his or her website, I also use the following resources to do more research:
4. State Bar Information. It’s pretty rare, but I do occasionally come up against someone who’s been disciplined, even suspended. There are a number of reasons why a lawyer can be disciplined by the Bar, and it doesn’t always signify anything I consider relevant. But it could, so I try to find out as much as I can. For example, if the discipline has related to commingling client funds or failing to communicate with clients, it could mean the lawyer does not make it a priority to communicate with his or client. This could become important later, if we get into settlement discussions and it’s critical his or her client is being kept informed of my client’s offer (or demand). Information about Bar discipline is typically available on the State Bar website.
5. Track record. Does my opponent try cases? This may not be readily apparent, but if I review the jury verdict sheets (I still use the paper kind) I can sometimes see if he or she has tried any cases in recent years and, if so, what kind of case and what was the outcome. This information isn’t always available. But if it is, it can be very revealing. For example, it might show a pattern of taking meritless cases to trial and losing (or barely wining). This becomes important when evaluating the likelihood of an actual trial later.
6. Reported cases. Has my opponent participated in any appeals that led to reported opinions? Actually, Lexis and Westlaw even report cases that are not officially published, which further broadens the field. If he or she was the sole attorney representing a party on appeal, this tells me that he or she probably has a fairly in-depth understanding of the issues and law in that kind of case. If our new case involves the same issues, this is important information for me.
5. Finally, I may send an email to some close colleagues and see if anyone knows or has dealt with my opponent before. This can provide a great deal of useful insight. One thing I’m looking for in particular is my opponent’s reputation for honesty or civility. Is he or she someone I can trust when they promise to communicate an offer to his or her client? Will I encounter resistance if I seek a reasonable extension or continuance?
From this information, I can generally get a decent “feel” for my opponent before I pick up the phone to call him or her and introduce myself (which I always do). Over the years, I’ve found different information useful for different reasons. Often, however, I know I’m going to be looking for leverage against my opponent or his or her client. This can come from a variety of sources, including “situational leverage,” which I will discuss in future posts, such as a disinclination or financial inability to take a case through trial. The earlier I learn this the more I can shape my defense accordingly.
One factor to which I never give any weight, which some might find surprising: where my opponent attended law school. I’ve encountered lawyers trained at the very best (ranked) law schools who had trouble knowing where to sign their last name, and really first rate lawyers who attended lesser ranked law schools. I usually find experience level to be a far more telling predictor of competence in the courtroom than law school ranking.
Learn MoreOne of the first things I look at when I get involved in any new case is who is my opposing counsel. Though I’ve never practiced in a small town, the legal community in Southern California is smaller than you’d think when it comes to lawyers who concentrate their practice on a particular area, such as employment discrimination or product liability lawsuits. If the lawyer is someone I’ve come up against before, I generally have a pretty good idea what to expect. But if the name or the firm is unfamiliar, I like to do some research, to find out who I’m up against. Here’s what I look for, why, and where I look to find it:
1. Firm or solo practitioner. Is he or she a part of a partnership or a solo? This is usually evident from the caption of the complaint or letterhead if we’re in the presuit stage. Why do I care? If it’s a mega-firm, I expect the opponent is well-funded (by their nature, big law firms tend to be expensive, though not always) and I’m likely to encounter a “team” of lawyers on the other side. This doesn’t make the case easier or harder to win–it’s just a factor. If it’s a smaller partnership or solo, and the case is one taken on contingency (where the lawyer fronts time and expenses) the ability of my opponent to properly fund the case, through trial if necessary, may become a factor. Sometimes I will see an anomaly. If, for example, a partner from a high-powered BigLaw firm has taken a small case on contingency (a rarity), it suggests he or she may have some personal stake in the outcome. Perhaps the party is a family member or close personal friend. In either event, the lawyer may not be as objective about the case as if it was an arm’s-length representation.
2. Bar number. How seasoned is my opponent? Assuming they were not previously admitted elsewhere (a dangerous assumption), I can make an estimate based on Bar number. Whether I’m facing a new lawyer or a veteran does not, by itself, make the case harder or easier to win. But I know from experience that a sole practitioner fresh out of law school will tend to exercise different judgment than someone who has been practicing for a few years or longer.
3. Website. I access the opponent’s web site. I still sometimes encounter lawyers working by candlelight who have not invested in a website. When this is the case I picture (perhaps unfairly) a caveman (caveperson) lawyer on the other side. The problem is that some cavepersons really do know how to build and try a case (and connect surprisingly well with jurors–some of whom are also cavepersons), so it’s not any automatic comfort. Assuming there is a website, this provides a wealth of information. For example, do they focus their practice or dabble in every area under the sun. Do they have a professional picture, or are they wearing a flowered Hawaiian shirt?
In Part II of this post, I will explore additional sources of information and what kind of information I consider useful and why.
Learn MoreFew would argue with the suggestion that a crucial skill for any lawyer who makes a living helping clients resolve disputes is the ability to persuade. Anybody can look up a case. And, while novel arguments or clever strategies can enjoy a certain symmetrical beauty, the ability to persuade, to sell, is ultimately what separates a good or great lawyer from the merely adequate. To this premise, I would add that the ability to write, to string together sentences in a clear, articulate and persuasive manner, is the most crucial skill of all and one clients should absolutely insist upon.
Why is writing such a critical skill to our trade? Conceptually, persuasive writing doesn’t just require a command of language, it compels organization. Even a point delivered orally requires a structure, if it is going to persuade. Clear writing always embodies this structure. It reflects the ability to conceptualize and frame an argument. Like the frame of a house, a clearly framed argument helps guide the reader—often a judge—follow on the journey to the desired conclusion. It lays a firm foundation for the real magic which, in the context of the law, is the synthesis, or interweaving, of evidentiary facts with a governing rule. There is no substitute for the ability to organize and frame an argument.
In modern civil disputes, it is always a written instrument—a complaint or claim—which sets a case in motion. While it’s certainly possible to win a massive verdict or coax a settlement out of a case premised on an inartfully drafted complaint, the complaint frames the issues, sets the tone of the case, and introduces the parties and their lawyer. If the complaint is sloppy, exaggerates or overreaches, it underwhelms both the judge and the lawyer on the receiving end. The judge may become prejudiced. Equally important, there can be a subtle, almost imperceptible, shift in the balance of power between the opposing lawyers. Respect between counsel must typically be earned; it is rarely presumed.
Most crucial of all, ask any civil trial or appellate judge and you will hear that, in all but the rarest instances, an argument is won or lost on the quality of the papers. This is not to discount the importance of having favorable law or facts. But good law or compelling facts are worthless if your lawyer has not articulated them in a clear and persuasive manner.
Clients should demand their lawyer have impeccable writing skills!
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