by Art Raedeke

Every now and then attorneys find themselves at trial in front of a judge who is overtly antagonistic to their case.  When this situation occurs, trial counsel are rightfully concerned about what signals the judge may be sending the jury, and what they can or should do about it. 

In a recent trial that ended with a defense verdict, the judge’s position on the case was so apparent to some jurors that in a post trial interview one plaintiff-oriented juror commented, “I think the judge was leaning toward the plaintiff because he would scold the defense a lot.  He got looks on his face when the defense lawyer was doing his thing.  When the defense lawyer would object, he’d get overruled a lot.  The judge was probably surprised when he read the verdict.  That reinforced my sense of being on the right side.”  A defense juror in the same trial said, “One juror felt the judge didn’t want the defense to go into certain areas because he agreed with the plaintiff.  That seemed to move her more toward that side.  I got the sense he treated the sides unevenly.  I wondered how he felt about the case because he seemed so intent on finishing the trial.”

In another trial, the judge’s facial expressions and leading questioning of witnesses prompted some jurors to think he was “skeptical” about the defense’s positions.  The attorneys in these cases were faced with a real dilemma: should they “join battle” with the judge, or ignore his actions and focus on their case presentation.  In both instances, trial counsel chose the latter course, with good success and for generally sound reasons.  Feedback from hundreds of jurors strongly suggests that aggressively challenging a judge is rarely a good tactic.  This article discusses some of the reasons for this conclusion and offers suggestions for how to respond to this situation.

Reverence for Judges:  Despite considerable cynicism about our nation’s judicial system as a whole, jurors hold trial judges in very high esteem.   Comments from jurors in post-trial interviews indicate that judges are overwhelmingly viewed as impartial and evenhanded.   Jurors want to believe, and mostly do believe, that judges are intent on having truth and justice prevail.  Moreover, most judges make considerable efforts to make the jury experience a positive one, thereby currying jurors’ favor and reinforcing the positive feelings they have for the judge.

In contrast, jurors view trial attorneys as advocates with an agenda.  Jurors are inherently skeptical of trial counsel, viewing their task as having to decide which lawyers are trying to con them.  In light of these disparate perceptions, lawyers who feel they are being treated unfairly rarely benefit from challenging the judge’s handling of the trial.

Failure to Perceive Bias:  Jurors are much less likely than trial counsel see bias on the part of a judge.  While attorneys are keenly aware of the implications of a judge’s actions, jurors often are not.  For example, counsel may consider a judge’s questioning of a witness to be leading, whereas jurors are more likely to think the questions are intended to “get at the truth.”  Likewise, trial counsel who are on the losing end of a majority of rulings may see bias on the part of the judge, while jurors are more apt to think the losing side is just usually wrong.  Because jurors are less likely then trial counsel to perceive bias on the part of judges, it is dangerous for attorneys to react as if bias is apparent to all.

This conclusion was borne out in the first case mentioned above.  While at least one juror felt the judge was in the plaintiff’s corner, most of the other jurors described the judge as being very fair to both sides.  Any heavy-handed treatment of the defense team was more often viewed as an attempt by the judge (one which jurors appreciated) to move the trial along.  Comments about the judge in post-trial interviews with these jurors included:

“He was excellent.  He was very personable and treated us very well. I had no feelings about how he felt.  He was getting bored with the repetitiveness, especially with (defense counsel).  He treated each side the way they should have been treated.”

“He was brusk with the defense and I felt he was impatient for it to be over.  I didn’t think about how he felt about the case.  He did a good job of keeping a poker face.  His questions were intended to make sure the witness and the attorney were on the same track.”

“We thought he was great.  He was very considerate of the jury and always kept to the schedule.  I had no feeling about how he felt about the case.  Afterwards, (defense counsel) said he was afraid the jurors might think the judge was picking on him, but I didn’t see that during trial.  I thought the judge treated both sides equally.”

“I have nothing but positive feelings about him.  I thought he was fair.  Some jurors commented that he seemed to pull the reins in on the defense, but he did an excellent job of moving the trial along.  My employer doesn’t pay for jury duty so I appreciated that.  I didn’t see that he was leaning one way or the other.”

In this situation, even though some jurors thought the judge was playing favorites, it would not have been wise for the defense team to make an issue of the way it was being treated.  Jurors all had a very favorable impression of the judge and would likely have reacted negatively had the defense challenged him.

So when confronted with a hostile judge, what should you do?

Take the High Road:  Maintaining proper decorum and professionalism in interactions with the judge will help prevent backlash among jurors.  It will also reduce the likelihood that jurors will think the judge is favoring the opposition, which may prompt them to do the same.

Choose Your Battles:  Some situations require a more aggressive response to adverse actions by the judge.  Knowing when to hold and when to fold is important, however.  By concentrating on the really important battles, you reduce the risk of further alienating the judge and jurors.

Stick to Your Game Plan:  In reaching their verdicts, jurors are much more likely to rely on the testimony and evidence presented at trial than on attorney-judge dynamics.  For this reason, it is crucial that your case presentation not get side-tracked by skirmishes with the judge.