The 5 Litigators Sure To Drive Judges Mad

By Gavin Broady:

Whether it's an attorney who shoots himself in the foot by shooting off at the mouth or one who botches her case by not bothering to learn local rules, litigators all too often risk sinking their own suits by antagonizing judges with bad courtroom behavior.

Few understand the endless hours of effort that go into readying a suit for trial than the litigators at the helm, yet, as the following jurists point out, simple etiquette breaches, poor preparation and other avoidable errors can rankle judges and jeopardize months' worth of work. Law360 spoke to prominent judges and trial lawyers who gave us their list of the five litigators sure to get on the bad side of the bench.

The Uncivil Litigator

The No. 1 way to make a judge’s temper flare is to disrespect the bench. Attorneys say that while a litigator doesn’t need to “kiss the ring,” there is no excuse for interruptions, backtalk or condescension.

“One major pet peeve is when a lawyer arrogantly instructs a judge as if he or she is in middle school,” says former Ohio Supreme Court Justice and Jones Day LLP partner Yvette McGee Brown. “You have to argue the law, but you should assume the judge has reviewed pleadings and the briefs and knows the case.”

Judge Brown says there is no excuse for a lawyer to lose his temper, particularly in response to inquiries from the bench.

“You should welcome questions from the court,” Judge Brown said. “It means they’re interested in your argument and trying to test your legal hypothesis. To get argumentative in response to questions is not best way to win the day.”

Another cardinal sin for counselors is cutting a judge off mid-sentence, according to Jackson Walker LLP’s Charles Babcock, a veteran litigator and 20-year member of the Texas Supreme Court Advisory Committee.

“Interrupting a judge is something I see too often,” Babcock said. “Some lawyers are so interested in getting their points and arguments across to the judge [that], a lot of the time, they won’t even let the judge talk. And when the judge does start talking, the attorney isn’t even listening because they’re so focused on what they’re preparing to say next. That’s dangerous.”

Attorneys can also commit smaller etiquette breaches that nonetheless raise the hackles of even the most composed judge.

“Judges are very sensitive to any visible reaction by counsel to witness testimony, such as eye-rolling, grimacing or nodding,” says Dawn Solowey of Seyfarth Shaw LLP. “They will not hesitate to call out counsel for doing so.”

The File Fumbler

Another litigator that drives judges crazy is the attorney who shows up in court unprepared for trial. Whether they fumble with their exhibits or stumble when asked simple questions on the case record, judges and litigators agree that at trial, readiness is everything.

“There is nothing more disturbing to a judge than to have counsel not be prepared,” says Melanie Cyganowski of Otterbourg Steindler Houston & Rosen PC, who was formerly the chief bankruptcy judge in the Eastern District of New York. “Telling a judge that you just ‘picked up the file on your way to court’ is no excuse. If you don’t care about your case, why should anyone else?”

Judge Cyganowski said that the more prepared an attorney is, the more likely it is the court will provide sufficient time to present all of his or her arguments in a cohesive and persuasive way.

A lack of preparation can balloon into a major problem if it becomes apparent to the court that an attorney is unable to provide direct answers to simple questions.

“A major pet peeve on the appellate bench is when you ask a question that doesn’t get answered,” says former Wisconsin Supreme Court Judge Louis B. Butler Jr. of Gonzalez Saggio & Harlan LLP. “Often the question a judge might ask goes to the heart of the moving issue, and if the attorney doesn’t give an answer, it can sometimes damage their clients’ case.”

While the inability to answer questions about a basic element of the case is troublesome, the worst thing attorneys can do when they don’t know an answer off the top of their heads is fake it, Judge Butler added.

“Judges would rather hear a party say, ‘I don’t have an answer now, but I’d be happy to file a supplemental letter,’” he said. “It’s better than spewing forth an answer that wastes the court’s time and may ultimately affect a judge’s take on an attorney’s credibility.”

The Cross-Talker

Attorneys must also comport themselves respectfully toward one another if they hope to stay in the good graces of the bench, as many judges are put off by argumentation and incivility among the parties.

“Direct your oral argument and statements to the court,” Judge Cygnowski said. “Do not engage in cross-bantering with your adversary and especially do not ‘talk down’ or belittle your adversary. If your adversary is acting rudely, leave that to the court to deal with.”

Babcock agrees that judges “absolutely hate” when an attorney directs his arguments toward opposing counsel, but says he has seen several instances in which an attorney has been repeatedly reprimanded by the court yet still insists on interacting with the other attorney.

“Whenever I want to ask the opposing counsel a question, I’ll ask the judge,” Babcock said. “More often than not, the judge will look over and repeat the question verbatim. No. 1, it’s respectful of the judge. No. 2, it’s often much better for you if the judge is asking the question than if you are.”

The Out-of-Towner

Attorneys often try cases in multiple districts, and because the procedures for different courts can vary widely, lawyers must bone up on the local rules if they hope to stay out of the judicial doghouse, judges say.

“One of the first things is that lawyers need to read and familiarize themselves with the local rules for the district they’re in,” said former New Jersey federal judge Alfred J. Lechner Jr. of White & Case LLP. “Too many attorneys don’t do that. They fail to pay attention to local counsel, and they make huge mistakes as a result."

Judge Cyganowski added that familiarity with the local rules of the court is especially important when it comes to the presentation of evidence.

“If the court requires exhibits to be premarked and exchanged with your adversary, make sure you have done that,” Judge Cyganowski says.”If the hearing requires live witnesses, make sure that they are present and ready to take the stand. Know how to introduce documents so that they can be admitted into evidence.”

The Brief Bungler

Sometimes the mistakes that put an attorney on a judge’s bad side happen during the preparation stages, where an undercooked or error-riddled brief can exasperate the bench and kick the legs out from under a case before it has even begun.

Judge Lechner notes that briefs that lack candor and forthrightness are problematic, and often attorneys fail to give proper attention to useful briefing tools that judges often use, such as the table of contents and table of authorities.

“In addition, local rules concerning page limits can cause problems,” Judge Lechner said. “For a lawyer, this is the one case he or she has, while a judge has literally hundreds of cases on his or her docket.  The only time a judge can read these documents is on nights or weekends. Lawyers need to accept the universal rule that shorter is better.”