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My client finally came to grips with the fact that our opposing counsel was, well, evil. Oh, that took some explaining — particularly the fact that there is not much a non-evil lawyer can do about all the rude, shifty, unprofessional, duplicitous stuff that you and I call bad lawyering. I was beginning to sound like George W. talking about “evil-doers” every time opposing counsel pulled some stunt. I thought that maybe my client would be so battle-hardened by the time we reached trial that nothing much would perturb her. After a hearing before a judge, I learned I was wrong again. Client: (Shell-shocked expression). What happened? Me: You mean the part about the judge ruling against us and then throwing that major hissy fit? Client: You know exactly what I mean. You told me that the law was clearly on our side. You told me that our facts looked excellent. You told me that we were well prepared. You didn’t tell me that the judge was a maniac who wouldn’t listen to our side or follow the law. Me: Mere details. I can’t be expected to cover everything in our pre-hearing discussions. Besides, I didn’t tell you that we definitely would win this motion. Our judge strayed a bit from the script, but judges do that sort of thing — rule wrongly, that is. Client: Strayed? Didn’t he completely ignore the facts and the law? And then gave us a hardcore tongue-lashing for “wasting” his valuable time. Me: Oh, sure, in the technical sense, but you have to learn to roll with the punches if you plan to stay in the litigation game. Next time, the facts and law may be on our opponent’s side and then that ol’ judge will rule for us. It usually evens out. A bad judge is usually bad for everyone, eventually. Client: Appeal immediately! Me: If you think our judge is bad, wait till you get a load of the court of appeals. � There’s nothing like a bad ruling from a court to shake a client’s confidence in mom, apple pie and his or her lawyer. And that’s probably the core problem with bad rulings: The client concludes that the system is either irrational or rigged — and the client’s lawyer may not be any good, either. None of which is likely to be true, but to any lawyer who ever has been on the wrong side of a wrong ruling — which is to say every lawyer — a bad ruling means client trouble of the third kind. SUPPORT THE JUDICIARY As lawyers, we have an obligation to support and to defend the judiciary in general and not to make false or reckless statements about the qualifications or integrity of judges in particular. Our system of justice depends on the public’s confidence that judges generally are just, fair and correct. The alternative — a lack of public confidence — means that folks resort to what is euphemistically known as “self-help” to settle disputes. Self-help usually involves a firearm of some sort. Can’t have that. Of course, it is not just clients who struggle with maintaining an adequate amount of confidence in the judiciary. We lawyers struggle with this as well — and probably with more cause to doubt the system than the average client who, presumably, has far less experience with judges than we do. And no lawyer doubts the judicial system more than a new lawyer the first time a case turns south because of a bad ruling from the bench. If you didn’t think about chucking the whole lawyering gig the first time a judge laid an egg on your case, then you must have been so green that you missed the fact that you lost. I read some study years ago that said that, on average, judges rule correctly about 75 percent of the time. (Shame on you who were just thinking, “Seventy-five percent incorrect, more like. �”) Well, I confess that I thought then that getting only 75 percent right didn’t sound great. After all, if a judge flipped a coin, he or she has a 50 percent chance of getting it right. So that 75 percent meant that our justice system is only doing a bit better than if we had a gaggle of coin-flippers on our benches. If that study was not significantly flawed itself, then it is humbling to think that we humans are not doing better than that. My experiences with judges generally have been sociable enough, although I certainly have seen my share of bad rulings, judicial meltdowns and other disappointments. Over time, I have arrived at a preference for judges with great judicial temperament over judges with super-high wattage brains and little temperament. The scientific formula works out roughly like this: Big brain + small temperament = bad judgment. Then there’s another formula: Little brain + small temperament = bad judgment x 2. One more formula that I like is haughty spirit + pride = a fall and destruction. Obviously, lawyers have a lot of influence over how our clients view the judiciary and their rulings, for better and worse. We have a duty to clients to explain what we know about particular courts and judges in a generic sense, but I must caution against being too free with information that might lead our clients to believe that the court system is composed mainly of flawed individuals making bad or corrupt choices. I don’t believe that is true. If you believe it is so, then you would be better off in another line of work. Clients are not well served if their lawyers are essentially cynics. Well, what of the bad rulings that come? How do we explain the what and why of bad rulings to our clients who are in shock and bewilderment? First, take a hard look at the ruling itself. Is it really off base? If so, assess whether there was a failure of proof. If not, was there a failure of understanding? If not that, then was there simply human frailty? Clients just may accept this explanation: “The judge made a mistake. He’s human. We have options. Let’s discuss those.” Then, move on.

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