When the judge got it wrong, I . . .

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For anyone who routinely argues motions or handles matters before any court, it is probably only a matter of time before you experience a time (or several) when a judge rules against you even though you are quite certain that the facts and the law support your position. In the last couple of weeks, I have twice experienced the sheer helplessness of standing at counsel table, arms locked firmly behind my back, while a judge issued a lengthy and completely incorrect decision from the bench finding against my client.

In the first incident, the judge refused to permit testimony that was relevant and based upon personal knowledge. He also refused to admit documents into evidence even after the proper foundation had been laid. He then found against my client because the documents we needed to prove our case had not been admitted into evidence.

The second incident was even more frustrating. I was arguing a motion to dismiss on jurisdictional grounds. (Briefly: I was before a specialized court with very limited jurisdiction and the complaint filed against my client requested relief that the specialized court did not have jurisdiction to grant). The judge hemmed and hawed for nearly an hour, listening to the facts of the case from opposing counsel even though those facts were not properly before her on a motion to dismiss. In the end, the judge found against my client but ruled that we could renew our motion to dismiss after some discovery.

After the first incident, I spoke briefly with my client after the decision. I apologized for the result, clearly placing the blame for it on the judge’s shoulders. This felt hollow to me. After all, my client had hired me to get the result I had been unable to obtain. Because of the judge’s error, my client was now in a position where he would have to spend more money in order to get the result he should have gotten in court on that day. I was lucky in this instance because the client was sophisticated and understood what had happened.

The client in the second incident chose not to attend the proceedings, but this — in some ways — made it even tougher to explain over the phone later that day. Again, luckily, the client understood litigation and was relieved that we’ll have an opportunity to present the argument again down the road.

As I have written about in prior posts, my background is as a teacher, the de facto judge of the classroom, the giver of decisions and not the silent accepter. In the first instance, I did not do a good job of disguising my displeasure. The judge, upon finishing his ruling, peered down from the bench in my direction with a none-too-pleased look on his face and noted that the record was complete in case an appeal should be filed.

The drive back to the office was maddening. I couldn’t believe that the judge had gotten basic rules of evidence so wrong. As I thought about it, though, I became more disappointed with myself for allowing my displeasure to show so openly that the I had angered the judge.

It was then that I recalled a trial advocacy class in law school in which a professor — a former prosecutor and current judge — told a story about trying a case against a highly skilled defense attorney. Throughout the course of the trial, this defense attorney, after every bench conference, would always, regardless of the outcome of any ruling, say, “Thank you, your honor,” loud enough for the jurors to hear as he walked back to his place at counsel table.

I resolved to learn from my mistake. In the second instance, I showed no sign of displeasure, beyond the answers I gave to the judge’s questions that quite clearly disagreed with her view of the case. In fact, after her ruling, I even managed to say, “Thank you, your honor” before leaving the courtroom.