Motion Hearings: Listening to the Judge

Some judges don't say very much at motion hearings. When they do, however, make sure you're listening to them.

Last year, I saw a judge interrupt a lawyer with a comment. As often happens at a motion hearing, the judge was hearing about the issues for the first time. He was clearly wondering if he was understanding the lawyer. The judge was also a little ahead of the lawyer, and he proposed what he thought was the lawyer's best argument.

As it happened, the judge had it exactly right. But the speaking lawyer was so focused on his own presentation that he ignored the judge. The judge took it as a sign he was on the wrong track. When the judge spoke up again, he was focusing on the wrong issues, some irrelevant considerations that favored the other side.

The speaking lawyer had lost the judge and wasn't going to get him back. The correct way to handle this situation is easy. When the judge speaks, listen. Next, give him some feedback. If he's understanding your point, let him know. If he's not, tell him why not.

It's just basic communication, I suppose, but it's easy to overlook when you're deep into the outline of your own argument.

Comments

[Michael R. Grossman]

Great points. I see this happen often during direct and cross-examination (sometimes, to myself). Listen to the witness or the Judge - make it a conversation, not an oration.