How lawyers can temper judicial temperament

A steady, fair-minded temperament is one of the most defining attributes of a judge. Yet, as a young lawyer I learned early that stumbling onto a judge’s pet peeves could short circuit his or her otherwise cordial disposition. To avoid unnecessarily stressing the judge, let alone, myself, I made it a habit to inquire into the idiosyncrasies of judges hearing my cases. In this way I greatly reduced my anxiety and accepted the sense of an Old Russian saying, “The thing to fear is not the law, but the judge.” 

Now a judge myself, I assume lawyers are trying to find out my pet peeves to ease their fears! Well, they should have nothing to be afraid of. A display of anger, frustration, disgust or other emotions has no place in any judicial repertoire. A judge on the bench is like an actor on the stage and the litigants are closely watching and listening to what the judge does and says. I believe that whatever a judge might be feeling inside about what is happening in front of the bench, it should stay inside, lest the judge do or say something which is interpreted as forecasting bias or favoritism. 

I do my best to keep my pet peeves under wraps, incomprehensible to anyone appearing before me. My essential duty as a judge is to maintain not just the reality of impartiality but its appearance and perception. Once a judge’s words, actions or attitude undermine his or her temperament, the aura of justice recedes. The best antidote is for the judge to let pet peeves escape detention and handle them with stoicism and common sense.

When I joined the bench I asked a few experienced judges to tell me which courtroom shenanigans most aggravated them. I then knew what to look for and made sure I could handle each situation in a non-threatening, even-handed way without appearing judgmental. 

Here are nine general irritants that judges frequently mentioned. Lawyers should steer clear of them. No lawyer or litigant helps his or her cause by provoking the judge. Avoid the irritants, and you can rest easy, knowing that the thing to fear is no longer the judge, but the law!

Ignorance of Court Rules

To paraphrase Justice Holmes’ father, young lawyers know the rules, but old lawyers know the exceptions. Unfortunately, some young and old lawyers don’t know either. Judges have been known to bristle at lawyers who only minimally master court rules. Imagine playing “Monopoly” against someone who says they know how to play but who turns out to be clueless about the basics. Lawyers are expected to firmly grasp, among others, the procedural rules, the Illinois Supreme Court Rules, the Illinois Rules of Professional Conduct, local rules, and evidence rules. They also should be familiar with any standing orders of the judge. Besides raising a judge’s eyebrows, lawyers who don’t know or understand the rules applicable to their case risk appearing incompetent or, worse, giving their opponent a big advantage. 

Tardiness

Arriving late to a party might be fashionable, but not arriving late to a courtroom. As my son’s high school football coach liked to remind his players, “If you’re early, you’re on time. If you’re on time, you’re late. If you’re late, you are forgotten.” Judges, like clients, don’t appreciate being made to wait. Judges also disdain wasting valuable time –there is always another case in queue. Allow yourself at least an extra 15 minutes before heading off to court. And, once in the courtroom, don’t go wandering off without informing the clerk. Most judges will hold a case if the attorney clears it first with the clerk. Consistent tardiness is irresponsible, and may even earn you the appellation “the late attorney (your name here).” 

Personal Attacks

Lawyers should heed the advice of an African proverb, “If your mouth turns into a knife, it will cut off your lips.” Judges loathe seeing lawyers cross swords as if in a duel. Although lawyers usually treat one another with respect, particularly when before the bench, they occasionally lapse and haul off on one another. Not a judge in this country appreciates such antics or is swayed by them. It is another time waster and can sap a judge’s patience faster than you can say, “Touché.” Should you feel like sniping or snapping at opponents (or the court), think twice. Besides degrading yourself, you put at risk your integrity, your professionalism, and above all else, your reputation. Why would you want to do all that in front of a judge? 

Courtroom Noise

Remember to turn off all “noise makers” before entering a courtroom. And remain quiet. Commotion and disruptions can give a judge a headache. Not only do good manners and decorum dictate silence in the courtroom, but lawyers should use the time until their case is called to pick up clues about the judge’s habits, quirks and methods of dealing with legal issues. 

Blabber-mouths 

Long-winded lawyers weaken their message with stale air, and are prone to antagonize the judge. A German Proverb suggests, “The wise person has long ears and a short tongue.” Judges appreciate lawyers who get to the point and stay on point. Lawyers who listen too little and talk too much invariably become their own worst enemy. When someone is speaking, carefully pay attention and don’t interrupt. It is a truism that people learn more from listening than from talking. Judges also don’t like it when lawyers continue to argue after the judge has already ruled or talk directly to one another rather than address the court. In each of these situations the lawyers have forgotten their professional manners. In sum, watch your tongue. 

Lack of Communication 

Another all too frequent annoyance occurs when lawyers don’t try to resolve differences among themselves, particularly discovery disputes. “What we’ve got here is failure to communicate,” as Paul Newman’s character says in “Cool Hand Luke.” The matter ends up in the judge’s lap, when a simple phone call, quick e-mail, or face-to-face meeting should have taken place before using up the judge’s time. Judges expect lawyers to work together to address, minimize and prevent misunderstandings and confrontations. Before jumping into a paper war, consider trying in good faith to resolve your differences. Lawyers who can work together not only save their clients’ money and themselves time, but make for happier judges.

Lack of Candor

Judges expect lawyers to tell it straight—no embellishments, no exaggerations, and no fabrications. The Illinois Rules of Professional Conduct require nothing less. Occasionally, however, lawyers in oral argument and in pleadings take unwarranted liberties with the facts and the law. Nine times out of ten a judge or an opponent will catch the doublespeak. A want of candor is an affront to the search for truth, appalling to a court and, once revealed, a credibility disaster for the lawyer. If a misstatement or omission is made, correct it at the earliest opportunity. Few missteps are worse in the eyes of a judge than distorting the facts and mischaracterizing the law. 

Lack of Preparation

A Portuguese proverb goes, “Prepare a nest for the hen, and she will lay eggs for you.” Unless you crave egg on your face, be conversant about your case’s facts and legal issues when appearing before a judge. Ignorance, as well as lack of preparation, irritates judges no end, and undermines your credibility and effectiveness. Judges sense an unprepared lawyer’s vulnerability. Most judges prepare every day for their call and expect the lawyers coming before them to do the same. 

Rudeness to Staff

The court clerk, courtroom deputy, judge’s secretary, court reporter, and law clerk are all extensions of the judge. Lawyers should never consider those around the judge to be inferior or regard them with indifference. Judges are protective of their staff, and more often than not take it personally if a staff member is badgered or bullied. In fact, lawyers should be kinder and gentler with the judge’s staff than with the judge. To avert problems, treat everyone with respect.
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Judge Michael B. Hyman, of the Circuit Court of Cook County, sits in Courtroom 1401 at the Daley Center hearing Supplementary Proceedings. He is a member of the ISBA Bench and Bar Council. Portions of this article were adapted from Judge Hyman’s Editor’s Briefcase column in the April 2007 CBA Record, published by the Chicago Bar Association.