Dealing with the Difficult Judge
To follow up on my recent post regarding Judicial Hellholes, one of the criteria for being a judicial hellhole is “strong ties between the judges and plaintiff’s lawyers.” Reading this it occurs to me that at some point in their career every trial lawyer must deal with a difficult judge. In my case, this has occurred many times over the last 20 years. Although, not as prevalent today, I have often had to deal with a judge that had a cozy relationship with opposing counsel. Here are some thoughts on how to handle the judge who always rules against you no matter what.
1. Don’t whine about it. I have often seen lawyers who are having a difficult time with a judge whine about it to anyone who will listen, including the Court and opposing counsel. Don’t do it. It does no good. It hurts your credibility with the other lawyer and Court. It also tends to encourage the disparate treatment.
2. Always dot your “I’s” and cross your “T’s”. This is important. When dealing with a difficult judge, make sure that your work is significantly better than that of the other side. You must also never put yourself or your client in a position where you need a favor from the Court. Instead, be one step ahead of the other lawyer and the Court. It may not make any difference in your treatment in this case, but in the next case it might.
3. Begin preserving error early. Judges hate to be reversed. When dealing with a difficult judge, you should expect to take them up on appeal. Handle your case accordingly. Start preserving error early. Preserve the error in a respectful way, but make it clear to the judge that you are planning on an appeal and fully expect them to be reversed. I have often found that painstakingly preserving error in the early stages of the case will cause a judge to start ruling more even-handedly later on. Don't be afraid to tell the Court point blank, "Judge, I am afraid that your ruling on this issue is going to cause the case to be reversed and we are going to have to do this all over again."
4. Look for an early opportunity to seek an appellate ruling. Similar to number 2, if the opportunity presents itself, get an early appellate ruling on some issue. In Texas, this sometimes results from the seeking of a Writ of Mandamus. If you are clearly in the right, don’t be afraid to mandamus a difficult judge. It is not like they are going to start ruling in your favor anyway. Whether or not the mandamus is successful, this strategy conveys to the Court that you are going to call their “uneven-handedness” at every opportunity.
5. Prepare the jury for the disparate treatment and take advantage of it. Most juries have an innate since of fairness. As a result, if they know you are getting treated unfairly by the judge, they often have a tendency to make it up to you in someway through their verdict. If I expect to be treated unfairly, I precondition the jury for the fact that the judge may be ruling against me frequently in the case and that I will have to do a number of things during the case to preserve the Court’s ruling for another court to look at. Once again, this has to be done in a respectful and professional way. But if it is done properly, the jury will often catch on that the judge and other lawyer are ganging up on you.
6. Push the envelope. If the judge is ruling against me anyway, I like to push the envelope. (Some would argue that I like to push the envelope even when the judge is not always ruling against me. However, that is the subject for another blog another day.) Since the judge is ruling against you anyway and you undoubtedly are going to have to appeal the case, you might as well be an aggressive advocate on behalf of your client. But be careful. It must be done in such a way as to not make an enemy out of the jury.
