Levity in the Courtroom? Yes! Provided . . .

Posted on Jun 14, 2012

An 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?

Why You Want A “Managerial” Judge

Posted on Jun 10, 2012

In 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.

What Is A “Managerial” Judge?

Posted on Jun 6, 2012

In 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.