Judges are human, and thus are subject to the same human errors and limitations as the people before whom they preside. If you spend as much time in the courtroom as I do, you will be able to differentiate between a bad judge and a judge having a bad day. A judge having a bad day can be refocused with careful and respectful presentation of evidence, while a bad judge will routinely commit legal errors, make personal attacks on the litigants, and make erroneous rulings. When facing a bad judge, you have two choices, wilt under the pressure of the situation, or embrace the opportunity to educate the court, protect the record and prevent the possible miscarriage of justice. As an attorney practicing family law bad judges can have a greater immediate impact on the parties before them, as their rulings affect the families and communities where we live.
As a family law attorney, being in court is often tied together with heightened emotions of not only the litigants, but also the court. Appearing before a judge whom I had clerked for prior to entering private practice, I had the audacity to keep my coat on in the courtroom (I was cold, sue me!). Despite the fact that this was a common occurrence, he decided I was the target of his moodiness that morning, and dressed me down in a full courtroom. My maturity got the best of me, and I simply thanked the court for its comments, removed my coat, and conducted my business. Though this was embarrassing in the moment, it turned out that I gained many friends that day, as, after leaving the courtroom, several attorneys whom had similar experiences with that judge shared their stories and commended the manner in which the situation was handled. However, judges with bad attitudes are not necessarily bad judges, just difficult on the ego of the attorney they offend.
Arrogant or Uninformed
I sometimes find myself in front of a judge who is arrogant, uninformed or both. These judges are miscarriages of justice waiting to happen. Observing these judges in action, you regularly witness these judges pontificate about various topics. Claiming to almost never misstate any facts in sharing their expertise, these judges will bully any litigant who dares challenge their authority. These judges make rulings based upon many factors, but usually omit the actual evidence, relevant case law, but leave litigants shaking their heads and wondering, “How did that judge get appointed to the bench?”
An example of this is a notoriously bad judge in the family court, who once insisted that a litigant had a 44% income tax rate, despite the documentary and testimonial evidence to the contrary, and despite that this tax bracket does not exist! This error waited two years to work its way through the appellate system to be corrected.
Another example is a judge who cannot even recall their orders, and changes them based upon their recollection and mood. During one case, the issue of pretrial discovery was heavily contested. This judge would issue a ruling, and that ruling would come in into play several weeks down the road. Appearing in front of this judge to clarify his prior ruling, they simply could not recall their order, so they attempted to create a new one. This may have worked, but knowing this judge’s penchant for this behavior, I appeared with a certified transcript of the previous ruling to bolster my actions and secure the enforcement of the actual court order.
Whenever there is a chance we will be presenting to one of these bad judges, it is important to remain calm, stand your legal ground, and to protect the record, for both your professional reputation, as well as to make a clear trail for any necessary appeal. Sometimes you will find that by paving the road for a bad judge, they will follow your lead and actually arrive at a correct ruling.
If it is likely that I will be presenting to a bad judge, I take proactive measures to minimize their impact on the case. Bad judges are usually not as prepared, so be prepared for them. I have courtesy copies of relevant case law, memorandum of law on issues likely to be contested, and even offer to prepare proposed findings of fact for the court. If the opportunity arises, I also will suggest that the attorney’s brief the issues in front of the court, and provide areas of agreement, in writing, to assist the court.
Also, advise your client about a bad judge, and let them know that a bad judge requires more caution in protecting the record, so your client will know what to expect from the court. In family law cases this is especially sensitive, as there are life-altering decisions made by these judges that impact families in our communities.
Ignore rudeness. It is that simple. However, when presenting before a truly bad judge, take on the role of guide, and provide enough relevant materials to the judge to allow for a correct ruling. Otherwise, you will be frustrated, left making excuses for the bad judge, or retrying the case on appeal. Take the correct path, protect the record, and you may be surprised, after all even a broken clock is right twice per day.