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With a new year upon us, it is an appropriate time to take stock. I purport to speak for no one but myself, but I was a trial judge for 13 years, and have been an appellate judge for almost two, and so I have a decent sense of some of the recurring failures that judges view from the bench. With apologies to Dave Letterman and everyone else who devises tidy little lists of do’s and don’ts, here is mine. Some represent personal preferences; others, I suspect, would find agreement among my colleagues on the bench around the country. 1. Answer the question asked. It is a recurring mystery to me why lawyers fail or refuse to directly and accurately answer questions that judges ask them. In my opinion, this is the single most glaring failure in oral advocacy with the most serious adverse consequences for a case. Some lawyers think they will reveal a weakness if they answer directly. But by denying a weakness, rather than confronting it, a lawyer often highlights the problem in the judge’s mind. Other lawyers think that bobbing and weaving is the essence of effective advocacy. I would respectfully suggest that they have been watching too many lawyer shows on television or in the movies. Don’t get to a point later � get to it without delay A good New Year’s resolution for all lawyers who argue on their feet would be to answer every question asked directly, accurately and persuasively. One response that is particularly off-putting to many judges is: “I’ll get to that point later, Your Honor.” Even if a judge has interrupted the flow of your argument, when you are asked a question, you should leap at the opportunity to answer it without delay. View the question as an opportunity to establish a dialogue with the questioner. If you are unable to give a full answer, try, at the very least, to give an abbreviated answer, telling the judge after your initial response that you will embellish on that point later. But never forget that when a judge asks a question, you have a rare chance to address a significant concern of someone who will be deciding your case. 2. Don’t interrupt witnesses, opposing counsel or the judge. In the midst of contested court proceedings, the adrenalin starts to flow. When someone makes an inaccurate argument, or misstates the law, the temptation to interrupt to set the record straight can be overwhelming. But it should be resisted. Discourse in society at large may be coarsening, but in a courtroom, the rules of professionalism and decorum are still of the utmost importance. If you are prone to interrupt witnesses or opposing counsel, figure out a way to avoid this shortcoming. Interrupting a judge during argument is always a very bad idea. Fair or not, the rules of engagement permit judges to interrupt lawyers while they are arguing, but the reverse is not true. Even if you feel you have been interrupted before being provided the opportunity to give a full answer, hold your tongue, count to 10 or figure out some other way to remain calm, cool and collected. The acumen with which you handle interruptions and stay focused and in control sends unmistakable signals about your skill as an advocate. 3. Avoid saying “As your honor knows.” I admit that this may simply be a personal pet peeve, but I find this phrase to be disingenuous. The fact is that sometimes the judge does not know. Unless the proposition you are putting forth is so apparent that it clearly needs no explanation, it is better to state the proposition, or, alternatively, ask the judge politely if he or she is familiar with what you are arguing. By the way, I have heard a number of my colleagues say that when someone states “With all due respect . . . ,” they suspect counsel is thinking the opposite of what they are expressing. I recommend that you avoid using this phrase. 4. Don’t make ad hominem attacks or accusatory statements. In the entertainment world, and perhaps in the popular culture, the lawyer with the sharp and insulting tongue is something of an icon. But in the real world of effective advocacy, ad hominem attacks are unprofessional and counterproductive. Judges don’t like them and, based on discussions with jurors over the years, it is my firm conviction that jurors don’t appreciate them, either. Likewise, do not make accusatory statements about opposing counsel � especially in the presence of a jury. If you feel the need to make a record that opposing counsel, for example, failed to provide you with requested discovery, or made an inaccurate representation, approach the bench, ask to have the jury sent out and make your record. Simply unleashing a verbal attack is a serious breach of etiquette. 5. Refer to witnesses by their titles and last names. I have seen lawyers attempt to denigrate witnesses by refusing to address them by their proper title, e.g., referring to a detective or a physician as “mister.” This is unnecessary and unprofessional, as well as transparent. People who have titles deserve to be addressed properly. Using an improper title is disrespectful and the functional equivalent of name calling. There are proper ways to undermine a witness’s credibility; this is not one of them. 6. Do not be too familiar with a judge. There are certain time-honored linguistic conventions that most judges expect to be honored. One of these require counsel to avoid using language in the courtroom that is too familiar. When arguing to a judge, counsel should avoid directly referring to the judge as “you.” For example, counsel should not say: ‘I don’t know what you mean, judge.” Say instead: “I don’t understand what Your Honor is saying.” Outside the courtroom setting, different rules may or may not apply, depending upon the circumstances. But formalities should be observed in a court of law. 7. Don’t continue to argue after an adverse ruling. Experienced lawyers know that they will win some arguments and lose others. They will win some arguments they should lose and lose some arguments they should, by all rights, win. But polished advocates make their argument to their best of their ability and then learn to live with an adverse ruling. Of course, you have a right to make your record, and if local rules require you to take an exception to protect the record, do so. But arguing after a ruling is generally a bad idea, and it runs the risk of creating a negative impression in the mind of the judge. Most arguments are not case-breakers. Get used to winning some and losing some with equal equanimity. 8. Pay special attention to the beginning and ending of your argument. When arguing to a judge or jury, a strong opening, or a strong closing, can sometimes compensate for a mediocre case. The hardest part of advocacy is not making good arguments; it is envisioning them in advance of the argument. Persuasive advocacy takes a good deal of concentrated thought and imagination. When preparing an argument, think about ways to make your opening pithy, accurate and eye-catching. Try to focus the judge’s attention, as succinctly as possible, on your theme. Use your closing to drive the point home and restate your essential point. 9. If you don’t know the answer to a question, say so. One of the most painful things to watch from the bench is the struggle of counsel to try to respond to a question when he or she obviously does not know the answer. Hopefully, you will know the facts of your case, and applicable legal principles, each and every time you step into a courtroom. But it is inevitable that you will be asked questions to which you do not know the answer, or for which no answer exists. There is no disgrace in simply stating: “Your Honor, I do not know the answer to your question.” Or in stating: “Your Honor, I don’t have that information at my fingerprints, but I will provide it to the court if permitted to do so.” But hemming and hawing when you don’t have an effective answer is almost always harmful to your cause. Whatever you do, resist the temptation to fake an answer, or try to sound knowledgeable when you really don’t have anything responsive to say. When lateraling a file leads to a dead end 10. Do not say “It’s not my file.” Here is the familiar scenario, reenacted in courts, and in chambers, around the country. Let’s assume it is a pretrial of a civil matter. Counsel have been ordered to appear to meet with a judge in the hope of settling the case prior to engaging in expensive discovery, or, later in the process, prior to beginning jury selection. One lawyer arrives with his clients out in the hallway. The other counsel sits down and, as the discussion begins, announces that “It’s not my file.” In most jurisdictions, lawyers who attend pretrials are supposed to have some authority of some sort. But in this instance, the entire process has been short-circuited. This is fundamentally unfair to the opposing side and a waste of time and resources for everyone, including the court. Now I know that sometimes lawyers find themselves required to be in two locations at once and feel the need to lateral a file to another lawyer � often a young associate � with instructions to show up at the appointed time and place. I also understand that solo practitioners and those working in small practices have great demands placed on them. Still, the impact on the other side, and the court, is quite negative when a lawyer is just taking up space. Counsel have a good-faith duty to try to do better. Partners who lateral a file to younger lawyers have a duty to inform them what the case is about so that, at the very least, the pretrial won’t be a complete waste of time for everyone else. Douglas S. Lavine, a judge on the Connecticut Appellate Court, is the author of Cardinal Rules of Advocacy (NITA 2002) and Questions from the Bench (ABA Section of Litigation 2004).

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