Listen to this post

If your judge is prepared and understands the facts and law of your case, all is well. But when your judge is not prepared, or simply doesn’t “get” it, he’s what Denver, Colorado litigator Peter Bornstein refers to as a “cold” judge in Persuading a Cold Judge, an excellent article he published in the ABA’s Litigation magazine. Here’s how Bornstein frames the issue:

Having your case decided by another human being who may rule against your client out of ignorance is to stare into the abyss. Of all the reasons to tell your client why his or her case was lost, the least satisfying and most embarrassing is having to say, “The judge never understood what it was about.” Every trial lawyer has candidly said, “I won cases I should have lost and lost cases I should have won.” The reason for this truism is often the “cold” judge—the judge who hears and rules without knowledge, understanding, depth, or concern. So, what do you do when you stand before a cold judge? Don’t panic. Keep your cool. Do your best. And remember that even when your judge is prepared, scholarly, and mindful of her reputation, you still know more about your case than anyone else in the courtroom.

State courts are especially prone to cold judging. Not because our state judges don’t want to do the right thing (I assume they all do), but because our state court system is so starved for resources they simply don’t have the luxury of preparation. Also, as a general rule, although the stakes in dollar terms may be smaller, the issues involved in contested inheritance proceedings can be just as complicated and difficult as the issues at play in large complex commercial cases. To make matters worse, clients are often unwilling or unable to pay for the same level of preparation.

So what’s to be done? One option is to “privatize” the litigation by including mandatory arbitration clauses in all your wills and trusts and if that wasn’t done, try tapping into one of the many voluntary alternative-dispute-resolution tools available under Florida law. And if that doesn’t work, then Bornstein delivers solid advice – especially useful for probate litigators – on how to warm up even the frostiest judge:

Begin at the beginning. In every court appearance, there are six basic queries to answer for a judge:

  1. Who are you?
  2. Who is with you, and whom are you representing?
  3. What is the controversy, in one sentence?
  4. Why are you here today?
  5. What outcome or relief do you want?
  6. Why should you get it?

This last query is most often forgotten. Indeed, these six essential queries are a good beginning even when you are dealing with a warm judge. Consider putting them on a PowerPoint slide, a handout in the form of an “executive summary,” or a demonstrative exhibit to project through Elmo or other presentation technology.

A judge in a suburban district told me that the one thing I could do to assist his judging was to begin succinctly by telling him what was before the court, remind him of the nature of the case, and tell him what action I wanted the court to take and why I thought I had the right to that action. Once I did this for him, he would be ready to listen to my argument. This particular judge told me that he has so many cases that he can’t read the motions before the hearing, and if he has read them, it was so long ago that he couldn’t recall what he’d read. He has no legal assistant to write memos for him; he does his own legal research, and if you cited more than 10 cases for him to read, he couldn’t do it. He likes being a judge and wants to do the best job he can, but he is forced to come into hearings and trials cold. So, help him be the good judge he wants to be and the quality of his decisions will be your reward.