TIPS FROM THE TRENCHES »Overcoming Judicial BiasBy Stan Perry
Judicial bias may be conscious or unconscious. For example, there is the natural tendency of judges to feel more comfortable with lawyers who practice regularly before them, and to view lawyers from afar with suspicion, if not hostility. The best antidote I have found to combat bias against an out-of-town lawyer is to find the best local trial lawyer and hire her. You can gain instant credibility by associating yourself with a local favorite.
Too often, retaining local counsel focuses on who is perceived to have influence with the trial judge. Instead of influence, I suggest you look for the best courtroom skills. Even hostile judges appreciate excellence in the courtroom, especially excellence with a local flavor. It’s a mistake to ask a local lawyer to do nothing more than file pleadings until it is time to pick a jury. Instead of having the local trial lawyer sit on the sidelines, get her into the field as soon as you can and make her an integral part of your trial team.
Another antidote to potential judicial bias can be summed up in a single word: Listen. This is so very hard for lawyers to do, especially trial lawyers. Many times hostile judges will signal—if not flat-out tell you—what they do or do not want to happen in their court. Lawyers, however, are often too busy talking (or arguing) to pick up on these vital, and sometimes obvious, clues.
Recently, I was in a rural county in Texas before a trial judge who was not receptive our position. The judge mentioned, in passing, that the trial date was firm and he was not going to continue the trial. Only a few of the 20 or more lawyers in the courtroom were paying enough attention to hear the judge. Well, I heard it—and I based my discovery plan on the premise that the trial date was set in stone, and not the aspirational guideline my adversaries were expecting. When the trial date approached, we were ready, and they were not. Our timely preparation was an excellent antidote to the judge’s initial bias against my case.
Another story highlights the additional benefit of listening: you may avoid giving the judge a reason to dislike you. My local trial lawyer and I planned to divide oral argument between us, with him starting and me finishing. Five minutes into the hearing, however, it became obvious that the judge really liked and admired our local lawyer. So I decided it might be best if I never opened my mouth. To this day, the trial judge may think I am the local lawyer’s associate. I could have argued part of the motion and explained to the court that I have handled numerous cases like this one and they never have any merit and blah, blah, blah. My argument, however, would have forced the judge to defend his home turf and the local opposing counsel. Instead of that scenario, the court was entertained by two excellent local lawyers arguing about the meaning of law outside his circuit and whether it should or should not apply to our case. Had I interjected myself into this hearing, the tone and context would have been dramatically different.
Some judges are tired of arrogant, conceited lawyers marching into their courtroom and explaining how things are done in Dallas, Los Angeles, or New York. The local judge does not care. He has a courtroom to run and a docket to manage, and has done just fine without the bright lights of the big city. In this scenario, it is time for the trial team equivalent of a curveball or change-up: Have your youngest member of the trial team make the argument. Her fresh approach may eliminate some of the tension, and even resentment, the judge has toward the out-of-town, know-it-all lawyer. On more than one occasion, I have seen a hostile judge go out of his way to help a young lawyer argue a position. The judge who snarls at the experienced lawyer becomes, somehow, the judicial equivalent of the aunt or uncle trying to mentor a favorite niece or nephew.
Sometimes the best victory is the one that is never fought. I am still amazed at how many times lawyers demand to have their day in court when they have a pending proposal from the opposing side that is better than their best possible ruling from the court. It is almost as if the lawyer would rather lose in front of a hostile judge, even if this is inevitable, than reach an agreement with the other side. It is, therefore, imperative that you work, and work hard, to reach an agreement so that you can avoid these guaranteed losses.
There is no dishonor in reaching an agreement with the opposing side that might be better than a result you would get from the trial judge. In fact, the opposite is true; there is honor in working to get the best possible result for your client by agreement and avoiding the risk of appearing before a hostile judge. Sometimes even the most hostile judge will appreciate your efforts to avoid a hearing. This is particularly true when the dispute is over discovery. Discovery disputes are to judges what children fighting over broken toys are to parents: unnecessary racket. Even a hostile judge may reward your efforts to avoid making him hear a discovery dispute by being more receptive to your arguments on substantive issues.
Throughout your dealings with the biased judge, frame the issues so that if she rules against you, you have a record you can take up by mandamus or appeal. This is lawyering as a high art form. You are taking your loss, which is as sure as the sun coming up in the east, and turning it into a possible win or, at worst, giving the judge a warning that his or her conduct is subject to review by the court of appeals. If you play your cards right, the hostile judge may even make—you guessed it—a hostile statement on the record that gives you a perfect lead for your appellate brief.
Even if you lose the mandamus or appeal, your effort may ultimately reduce the judge’s hostility. It has been my experience that most hostile judges do not think they are being hostile; rather, they have busy dockets to run, they are tired of arrogant and insulting lawyers, and, often, they are just bored of the same old thing, day in and day out. Seeing their own behavior in black and white can, occasionally, take the edge off of a hostile judge.
In dealing with a hostile judge, it is necessary to persevere. Sometimes a judge is hostile because he wants to avoid hearings or disputes, and one way to do this is to make sure that neither side wants to appear before him unless absolutely necessary. If you cannot get an issue resolved and judicial involvement is necessary, then stand strong and do not let the hostile judge intimidate you. After a while, the hostile judge will, grudgingly, grow to respect your perseverance, especially if your persistence is always professional.
I have seen hardened, hostile judges worn out by docile, introverted attorneys who refuse to go away and refuse to give up. It takes a very special touch, because pursuing the same argument the same way can quickly lead the court to perceive your persistence as disrespect of the court’s authority. One example of professional persistence is requesting individual trials in multi-plaintiff cases. A defense lawyer knows that individual trials are both critical to the defendant’s right to a fair and impartial jury and something the trial court would prefer to avoid because they mean more hearings and a more congested docket. The good defense lawyer raises the issue of individual trials at each opportunity—in connection with the scheduling order, decisions on which plaintiffs to depose first, the scheduling of experts and the challenges to experts—in a manner that is both respectful to the court and germane to the issue before the court. The key here is to persevere but not bore or offend the court.
Be a professional. Be careful not to lose your integrity when you lose a hearing. Don’t return a negative ruling or attitude from a trial judge with a negative comment or attitude. Rather, try to raise your professionalism each time the court is hostile. Self-reflection is important: what did you do right, what did you do wrong, what can you do to cure these mistakes, what other approach should you take with the court? If you can remain a professional, act with dignity, and learn from your losses, you will leave the courtroom with honor and dignity, and you will, eventually, overcome this judicial bias.
Keywords: Litigation, career development, judicial bias
Stan Perry practices law with Haynes & Boone, LLP, in Houston, Texas.
This article was adapted from a longer one that was published in the Summer 2009 issue ofLitigation.