Effective Lawyering – Observations from the Bench
When I was asked to share my reflections on “what makes a good attorney” from a bench officer’s perspective, three thoughts immediately came to mind.
First, even after more than 12 years on the bench, I still recall how committed I was to the practice of law and how thoroughly I enjoyed being a lawyer. Second, for me, one of the most pleasurable aspects of being a judge is seeing attorneys who are dedicated to representing their clients and who do so at a very high level of skill and practice. Third, in our Contra Costa County legal community, top-notch lawyering is the rule, and its opposite is mercifully a rare exception. With these thoughts in mind, I offer the following as my own personal observations and musings about some practices that make for effective lawyering, especially when your audience is a bench officer, though certainly many of them could also apply to lawyers making their cases to juries.
What are you asking the judge to do?
Sometimes lawyers get so excited about what they are going to say to the judge (or the jury) – that they forget the importance of focusing in on why the matter is on calendar. Worse yet, lawyers sometimes neglect to include “the ask” – or to tell the judge what relief they are seeking or what order they would like the judge to make. During the five years I spent in Family Law where all of the proceedings – whether hearings or trials – were tried to the court, occasionally attorneys finished their presentations and I was still left to wonder aloud, “What order are you asking me to make?” Whenever that happened, I always considered it a major “missed opportunity” for attorneys to focus their argument with a clear and specific request for relief. Sometimes, too, in criminal proceedings, attorneys get lost in the weeds of their arguments (often well-researched and artfully phrased), and never clearly articulate the relief they are seeking or the order they would like the court to make. Fortunately, many lawyers do remember to make “the ask” clear in some way, guiding the bench officer’s attention directly to the issues to be addressed and the decisions to be made.
Remember the purpose of the proceeding
In criminal calendars, most cases will be before the court for a specific reason – an arraignment, a change of plea, “to set” a future court date, to address bail or custodial status, etc. Effective lawyers are keenly aware of why they are there and what the purpose of the hearing is. When one case is on “to set” on a calendar with upwards of 40 matters, it is usually not a great idea to try and expand the scope of the hearing to encompass matters that cannot feasibly be addressed in the few moments allotted for that case. So, if it turns out that there are other aspects of the case that you would like to address but that are not specifically on calendar that day, be prepared to ask to have the case back on calendar on a future date to address those separate issues, in case the court and opposing counsel are not able to accommodate a last-minute desire to address them.
Your reputation is your best asset
When I was just beginning to practice law in the early 1990s, I quickly realized that “reputation” was a prized commodity in the legal profession, and deservedly so. In the practice of criminal law, I learned that there were always a few lawyers, and only a very few, both on the prosecution side and defense counsel, who had developed reputations as being less than completely trustworthy. Over the years, I saw that those reputations, once established, rarely “got better.” Put another way, what might look to be a minor mistake or misrepresentation could end up taking a lawyer’s reputation for years to come – and perhaps permanently.
At some point early in my practice, I realized that judges and opposing counsel had come generally to accept my representations – whether made on or off the record. This regularly worked to my clients’ advantage.
Experienced practitioners know the value of a solid reputation for ethical conduct and candor with the court and counsel. For attorneys newer to the practice of law, it bears mentioning that a good reputation can take you (and your clients) a long way – and a reputation once called into serious question, can be hard (or impossible) to restore.
Become adept at reading the signals
A judge who has long-since retired once said to me, as I was about to launch into what I was certain was a winning argument in favor of a motion to suppress evidence, “Counsel, if you’re so confident of your argument, why don’t you just submit it?” As a relatively new attorney, I was caught off guard, but realized in that moment that I was getting a signal from the bench – my motion was going to be granted, and I did not need to say all the wonderful things I thought I needed to say.
Developing an ability to “read the signals” from the bench is tricky, and made even more so because different bench officers may have different signals. Of course, when in doubt – or if you are experiencing “radio silence” and not picking up on any signals – you should make the arguments you need to make for the party you represent and the position you’re taking on their behalf. I will occasionally ask whether the attorneys would like a preview of my tentative ruling to help guide their arguments. If the attorneys’ subsequent arguments then make me reconsider my tentative position, I let them know, ask appropriate follow-up questions, and make sure that in light of the arguments and any change in my tentative ruling, all parties have had a chance to complete their arguments.
I have had extended assignments in both the Criminal and Family Law Divisions of our court. Our bar and our bench are lucky to have excellent lawyers of many experience levels. In my current assignment, I see outstanding criminal law practitioners every day, and am constantly reminded of the nobility and value of our profession. From this bench officer’s perspective, there is nothing more satisfying than watching good lawyers in action – and having them make their cases confidently, directly (and succinctly!) to advance the interests of the parties they represent.