When you walk into court, it’s easy to assume the judge is always right. That assumption can hurt your client and your reputation. You must be able and willing to stand up to a judge who is violating the law, your client’s rights, or the judicial code of conduct.
The Toughest Law Job of All?
Trial court judges generally get a lot of deference and respect, and most of them earn it. They have one of the toughest jobs in the law, one that requires vast knowledge of statutes, procedure, court rules, case law, and the rules of evidence. To add to the challenge, they need endless reserves of patience. Finally, they must know the limits of their power, and strive unceasingly to appear always utterly unbiased.
A Lonely But Exciting Dilemma
Like the rest of us, sometimes judges come up short. But when a judge gives in to his baser instincts, how will you react? It’s natural to want the judge to see you as deferential and respectful. But you must have the knowledge to realize when a judge is off the rails, and you need the backbone and patience to make it clear that the judge is wrong and you are right. You even have to risk being tossed in jail to protect your client, the Constitution, even justice itself.
“Remand [Counsel] to the jail.”
Michigan attorney Scott Millard recently passed this extraordinarily difficult test. During a bond hearing, Judge Robert Post repeatedly questioned Millard’s client about the last time the client had used illegal drugs. Millard told the court that his client would not answer such questions under his 5th Amendment right to not incriminate himself. Again and again, despite the judge’s rude, sarcastic, and derisive responses to this utterly straightforward effort to protect his client’s rights, Millard refused to lose his cool, and prevented his client from answering those questions. Millard’s reward for his courageous defense work? The judge found him in contempt, twice. First he fined Millard $100.Then, when that wouldn’t shut Millard up so the judge could trample the defendant’s constitutional rights, the judge ordered Millard jailed. A higher court freed Millard hours later, and let’s hope Judge Post will face disciplinary action.
Don’t Apologize for Doing Your Job
In a less-egregious but troubling incident, Minnesota attorney David McCormick cross-examined a police officer during a DWI pre-trial hearing. After the hearing, during which McCormick suggested that the officer might have been trying to “cover [his] ass” in his handling of the investigation, Judge Gregory Galler told the lawyer to send a letter to the officer apologizing for “impugning [his] personal integrity.” McCormick, no doubt regretting his mild profanity, said he was sorry and that he’d send the letter. News of the exchange made its way to a local reporter, and eventually Galler faced discipline (although he was ultimately not disciplined).
McCormick’s mistake was not significant to his client; the substantive part of the hearing was over. It was fine to apologize for saying “ass” in court, but McCormick should have told the judge he wasn’t going to apologize for doing his job—zealously defending his client. McCormick did discuss the incident later, which was why it wound up getting the attention it deserved.
Being the person who gets to confront, on the record, a judge who has gone off the rails is just one reason that trial lawyers live the law more than the typical lawyer ever gets a chance to. If your chance comes, will you be ready, willing, and able?