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John Day

I obviously do not know why Ms. Sullivan is doing what she is doing, but I have seen defense lawyers bait judges and try to force error. It is a high-risk strategy, particularly when the judge has thousands of similar cases before her.

But some clients like a fight and a mistrial - unless sanctions are attached to it - can work to the advantage of the defense. Hopefully, the judge will keep her cool and continue to call balls and strikes accurately within the bounds of discretion.

Seeger is going to have to work hard to keep the judge within the bounds of her discretion given the conduct of defense counsel. The trap here is that Seeger seizes the opportunity to push the envelope and the judge rules in a way that causes reversible error. Seeger is a good lawyer and he needs to hold back a little bit to protect the judge - and the verdict.

Emily Mann

In my limited trial experience, I have found that it is almost always better to stay on the good side of the Judge, even if that means that the lawyer has to bite her tongue throughout the entire trial. Very few judges will take the bait, and the news of the lawyer's baiting will quickly get around to other judges and lawyers, and the news will not be positive.

Michael Carter

When I routinely performed criminal defense I was willing to pick a fight with a judge when the matter was crucial to our case or when I thought the court was being so unfair the jurors had to notice. Defendants are being accused of doing something wrong. When the accuser goes too far, or the trial court can be perceived as siding with the accuser I firmly believe taking a stand can be very beneficial. Additionally, if you are losing every ruling, as you often do in small communities where the state's attorney position is a stepping stone to being a judge, sometimes the court will consider its rulings more carefully after an attorney puts a comment in the record that suggests the court has been a little less than fair, or a rubber stamp for the government.

It's different on the plaintiff's side. I have yet to engage in a true war of words with a trial court. Thus far it hasn't seemed to be worth while. However, with judges running on pro tort reform platforms, I know it's a matter of time. No good trial lawyer should ever refuse to play any legal, ethical card that can benefit the client he or she is representing in the case at trial. You never refuse to assist the client because of future ramifications. The client deserves better.

P. K. Scott

This tactic appears to be similar to standard football tactics, such as, icing the kicker and trying to get a defense to jump offsides on fourth down. Both are done on a regular basis, but I have yet to see either work.

I'm not a lawyer but I would think that antagonizing a judge would detrimental to your case in the long run and would appear childish and bullying in front of a jury.


I think there is a big difference between what I would consider as "picking a fight" withe judge and engaging in what sounds like an over-the-top shouting match with the judge. There are times, I believe, where you may have to stand up to the judge to get your record for appeal. If it is a piece of evidence you simply must get in or an objection that you really need to make clear, then, as noted above, you gotta dso what you gotta do.... Normally, I believe this is best done with a firm but calm tone. When Merck's market cap dropped a couple of billion in reaction, according to some news articles, to the exchange, you got to wonder how much Merck executives really appreciated Sullivan's aggressivness.

I note also that this is not the first time Sullivan has had a run-ib with the Judge during the trial -- Sullivan's references in her opening to opposing counsel and "lawyering, lawyering,..." after apparently having been warned against such statements was the first "strike" I've read about.
The deeper concern for a mistrial, or at least appealable error, I believe, lies not in the heated exchange, rather it lurks in the Judge excluding the entire testimony of a witness, reportedly an employee of a party, not simply the apparently offending portion, and even though plaintiff's counsel only requested exclusion of a part of the testimony.


You're definitely right about that last point.

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