Before starting my own practice and settling into entertainment law, I worked as a corporate defense litigator at an international law firm. As most litigators know, representing your client occasionally means arguing in favor of positions that you know aren’t “winners.” Or—even worse—arguing positions that you know will be met with outright hostility from the judge.
After all, just like the rest of us, judges are human and therefore vulnerable to idiosyncrasies, prejudices, and mistakes. On one unpleasantly memorable occasion, the judge I was arguing before looked almost ready to jump over the bench so he could hit me over the head with his gavel. Without a doubt, he appeared to be personally offended by my client’s position. Nonetheless, I had strict marching orders which did not allow me to accept the compromise he was proposing.
We’d already suspected that he would not accept our position in the case, but it was important to us that we preserve our ability to appeal his ruling. I walked away with what amounted to a “dressing-down” in a packed courtroom and with no small amount of venom directed at me personally. Nonetheless, I felt like I was able to walk away with my head held high. I’d not let myself be bullied. My client way happy, and, much to my surprise, I even later received an apology from the judge.
When you’re required to take an unpopular position at a hearing or trial, or you have to deal with a difficult judge, it’s important that you keep your cool. After all, if you’re arguing before a jury, you don’t want the judge’s hostility towards your position to sway the jury’s opinion of you and/or your client. Even if you aren’t in front of a jury, you’re better off not burning bridges with any members of the judiciary.
Here are a few tips to help you get out of the courtroom with your nerves and reputation intact.
Always stay professional, courteous, and deferential
Staying professional, courteous, and deferential allows you to maintain the high ground. And, if there is a jury involved, you don’t want a backlash against you and your client. Most jurors tend to hold the judge in high regard and will often side with the judge. Not only that, regardless of whether you’re arguing before a jury, you’ll gain nothing for your client by dirtying the waters with the judge. At the end of the day the judge is authorized to rule on your case and enter judgments. Even after you’ve concluded a matter, you never know when you or your client could appear in the same courtroom again. And, in my experience, by remaining calm under fire you may even win the respect of a difficult judge.
Hold your ground
It’s true that by their very nature most successful litigators are pretty tough. Nonetheless, I’ve seen judges pressure attorneys into accepting compromises that aren’t the best options for their client. No matter what else happens, remember that your role is to advocate for what’s best for your client – no matter how difficult it is for you personally. If you know that your position is the right approach for your client and their case, then stand firm. Similarly, if the judge delivers a ruling that isn’t supported by the circumstances or relevant law then make an objection and state your position clearly for the record. At the very least, you can work to maintain a good record for a potential appeal.
Know when to let it go
Although it’s important to hold your ground in some occasions, it’s also important to know when to make a strategic concession. After all, it may actually be in your client’s best interest to accept a loss on minor issues in order to maintain the judge or jury’s goodwill for more important matters. By remaining calm and collected you’ll be better able to analyze whether a given issue is worth the fight.
Most people operate at their best when they remain calm, cool and collected. For that reason, it’s important not to overreact or lose your cool. Getting angry typically won’t solve anything. Exaggerating will only help you lose your credibility. And by remaining calm you’ll come across as more sympathetic and sincere on the record (in the event you have to seek an appeal).
In my experience, one truth about litigation is that occasionally you’ll lose cases you should have won (even though you did everything right), and you’ll win cases you should have lost (even though the other side did everything right). Although it’s natural to get worked up over an unfair outcome, I suggest you treat these outcomes like water off a duck’s back. As a result, you’ll be less stressed and a more effective representative for your client.