A Tip from the Machiavellian Lawyer

The Machiavellian Lawyer once said:

When appearing for a motion hearing, the lawyer who filed the motion is permitted to speak first. This is an unwritten rule of courtesy among lawyers. It is also a rule you should always strive to break.

As you approach the judge, your opponent will be nervous and apprehensive, no matter what his or her level of experience. Never wait for him to speak first. Instead, introduce yourself to the judge, even if he is well known to you, and state which side you represent. Next, introduce your opponent. Finally, tell the judge which motions are set in the case for the day.

In conducting your introduction, you will appear so pleasant, so helpful, so polite, that your opponent will never even consider interrupting you. Meanwhile, as you explain the day’s motions to the judge, you should characterize them in a way that puts your own position in a favorable light. You can do this by carefully choosing your words or through subtle cues such as your tone of voice and facial expressions. In this way, you can seize the high ground even before the argument has begun.

Comments

[Rufus]

I don't know where that guy practiced (Venice, perhaps?), but if you tried that in front of most state court judges in and around the Large Urban Center you'd get a pretty good judicial bitch slap. Most motion hearings began with the clerk calling the motion and the judge saying, "Counsel, can I have your appearances for the record." Many, not all, judges would then state what they perceived the issue to be, e.g., defendant's motion for summary judgment on the duty to defend, and then ask the moving party for a brief argument, or they would start right in asking questions. And pulling that kind of thing in federal court? Forget about it. I shudder to think about how a few of our partrician district court judges would have reacted to that kind of breach of protocol in their courtrooms.

[Rufus]

Let me add a caveat, most of my cases were in the tony suburban counties of the Large Urban Center, in the heart of the Center itself things were a bit more free wheeling in state court.

[UCL]

But I agree with Rufus, and I practice in the downtown courts of my own Large Urban Center. I'm actually laughing at the thought of some lawyer trying out this advice in the courtrooms of some of the federal and state judges I know. "Bitch-slapped" is putting what would happen to them very politely.

[Evan]

Has the advice of the Machiavellian Lawyer been misconstrued? It's true he speaks cryptically. However, when I pointed out the comments of Rufus and UCL to him, he said:

My advice does not propose that a lawyer opposing a motion should argue first. This would in fact be improper and wrong. What it says, instead, is merely that he should speak first.

Assuming the lawyers are not called to a podium to speak one at a time, the judge is rare who would "bitch-slap" a lawyer for saying something like, "Good morning, Your Honor, I'm Mr. Machiavellian Lawyer, and I represent the defendant in this case, and I'm here today with my opposing counsel, Mr. Smith, who represents the plaintiff. We have two motions today: first, the plaintiff's motion to set a trial date, and second, my motion to dismiss. I suggest, Your Honor, that we address my motion to dismiss first."

Or: "Good morning, Your Honor. As my opponent is flipping through his briefcase, let me tell you what we have on tap today. It's my opponent's motion to reconsider your ruling from last month on his motion to dismiss. Oh, I'm sorry, Your Honor, I misspoke. I don't believe he actually titled his motion a 'motion to reconsider.' Did you, Charlie? Well, I see Charlie's ready. I'll let him explain."

The Machiavellian Lawyer also wanted me to say that he'd be happy to try out his strategy against either UCL or Rufus any day, and he doubts whether given his own sunny personality (which is an act, by the way, conceived for its own Machiavellian purposes), any judge would ever "bitch-slap" him.

[Rufus]

Nope, I still don't agree. Most judges I appeared in front of would cut someone off who tried to say more than simply put his apperance on the record before all counsel had put their appearances on the record. Further, I couldn't imagine my adversary introducing me to the court. I'm not sure what I would've done if it happened. I probably would have been so taken aback by the bizarreness of it that I wouldn't have said anything. (Perhaps that's the intent of the of the ML?) Finally, in the counties where they used recording instead of reporters the tape wasn't even rolling until everyone was at counsel table and ready to proceed. So the judge just would have told him to sit down and shut up; particularly one of the judges that I plan to write about tonight.

[Ted]

I think context is everything. I can imagine scenarios where Mac's advice would be good, and others where it would be bad. Depends on the judge and how freewheeling the courtroom is.

(To add a variation, I've seen a couple of judges say they've read the papers, are inclined to rule for/against the motion, and ask the presumptively losing party to state their case. This strikes me as the most effective way to do things, because it can cut oral argument time down if that opening argument isn't persuasive. Similarly, on more than one occasion, I saw the Seventh Circuit tell the counsel for appellee that there was no need to stand and argue, because the court was going to rule from the bench, with opinion to follow.)

[UCL]

Ted's right that it depends on the judge, and perhaps on the jurisdiction as well. But even the more polite and tolerant judges I know might take note, in their minds, of the fact that counsel was presumptuous enough to introduce his adversary, despite KNOWING that most attorneys prefer to introduce themselves to the court thank you very much. And maybe that's what it boils down to. I want to introduce myself to the judge, as part of my presentation to him. When my adversary chooses to introduce me instead, he is intruding on the content and substance of what I had already planned to be my presentation. And most judges, often former trial lawyers themselves, will be sensitive to that intrusion.

I also know many, many busy judges who fit Rufus' description. Upon being seated, the first thing out of their mouths is often, "Good afternoon counsel, Mr. UCL I've read your motion, do you have anything to say in addition to what's already in the motion?"

The very thought of the bitchslapping that would ensue if I tried to inject TML's advice into my subsequent response makes me shudder.

[Ted]

Just wanted to close the unclosed italics html code.

Also, I'm reminded of the C.D.Cal. federal district judge who regularly asked "I've read your motion, do you have anything to say in addition to what's already in the motion?" To which the only correct answer was "No," because otherwise the judge would snap "Well, why wasn't it in the motion?"

This was not a judge you wanted to alienate, because once he picked sides, you weren't going to win any controversial or discretionary motion practice -- making litigation by knowledgeable attorneys in front of him a curious and tentative affair where both sides tried very hard to avoid engaging the judge until the eve of trial, where both sides would immediately engage in a game of chicken, filing a flurry of motions asking to strike the other side's entire case for one arbitrary reason or another, sufficiently increasing the fear of a disastrous litigation result on both sides as to create a huge incentive to settle. The strange thing is that I'm not sure that this wasn't efficacious, notwithstanding this judge's huge reversal rate on the cases that did eventually get tried to judgment.

[Evan]

Ted: I wonder if the federal district judge you mention has read Advice to Federal Judges #2. Alas, probably not . . .