United States: Advocacy Tips – Think Like A Judge

I have been back in private practice for eight weeks after six years on the appellate bench in Texas.  Now that I am back in private practice and am arguing to courts orally and in writing once again, remembering the perspective I had as a judge has helped.  Here are a few tips from my experience on the bench.

  1. Simplicity is your friend

Variety may be the spice of life, but it can prove difficult for a judge.  The high variety of subject matters encountered by a court of general jurisdiction took me by surprise when I became a judge.  My court handled approximately 70% civil cases (including most administrative cases filed in Texas), and about 30% criminal cases.  And, we wrote approximately 1,000 opinions per year as a court (roughly 150 per justice per year). Courts are busy, and every judge brings a finite amount of knowledge from his/her background to the bench.

As a judge, issuing decisions efficiently while also finding the correct answer was largely dependent on the quality of the attorneys and their briefs.  I quickly learned to appreciate those lawyers who could take a complex legal issue and simplify it.  They would begin their analysis, not end it, with the relevant cases that were potentially binding on my court.  They would avoid acronyms and terms of art unless they had explained them fully, assuming no knowledge on my part (which was a good assumption in most cases!).

One of my early mentors in private practice was a long-time Chief Justice on the Texas Supreme Court.  I had the pleasure of working under him as a young lawyer when he retired from the bench.  He told me to keep in mind the KISS principle—Keep it Simple, Stupid.

As a judge, I can't tell you how much I appreciated those lawyers who kept that principle in mind in their advocacy.  You may feel like you are insulting the court by taking issues down to an elementary level but, I promise you, it is appreciated by judges more often than not.

  1. The risk of over-advocacy

On a related note, one thing that annoys judges almost universally is when lawyers feel the need to make their arguments "punchy" and include zingers in their prose.  Here are a couple of my favorites from actual briefs:

"[Opponents'] ludicrous argument is reflective of the thuggish tactics they have employed throughout this litigation;" and

"[Opponent] obviously has no legal justification for a single argument presented, as they are all based on a complete mischaracterization of the factual record."

A word of advice—don't do it.  I know, I know.  It feels good to do it.  It's fun.  Plus, that's what lawyers do on TV.  And some clients love it, of course—they can think they hired a real "bulldog" (a term I've grown to despise) to handle their case.

The use of zingers or what I will call over-advocacy only undermines your client's case.  I know very few judges who truly enjoy that sort of thing.  Judges remember how lawyers behave, both in person and in written advocacy.  Often a judge tries to identify "the adult in the room."  Once you've gained that status with a judge, you will have credibility with the judge and will be given the benefit of the doubt in future proceedings.  So, you have to ask yourself: Is that zinger really worth the possibility of undermining your credibility with the judge?  The answer to that question is easy.

And for clients, consider the type of lawyer you want to hire.  If the word "bulldog" comes to mind when describing a lawyer you are considering, you may want to re-think hiring that lawyer.  Lawyers who use a measured approach are the most effective, in my experience.

  1. Admit weakness

Some of you quit reading when you saw that heading.  Weakness is something that we are taught—especially as attorneys—that we should not embrace or admit.  Yet, in court, the lawyers I thought were most effective were those who were not afraid to admit to the court where there were weak spots in their arguments or evidence and who would then make arguments to overcome those vulnerabilities.  Think about it—the judge probably already knows where your argument is weak, and if the judge doesn't already know, then opposing counsel will point it out soon enough.  Why not take ownership of what seems like a weakness and control the narrative about it?  Lawyers are far more effective when utilizing this approach as opposed to the type of "zealous advocacy" taught in some law schools.

One caveat.  Be mindful of a client's insecurities about exposing their weak points when taking this approach.  As always, open communication with the client is of paramount importance and will assist in developing a comfort level on such issues.

Keep these three tips in mind for effective advocacy to the bench, both oral and written.  In sum, if you learn to "think like a judge" (not just "like a lawyer"), you will present your arguments in the best light for success.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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