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When the judge got it wrong, I . . .

For anyone who routinely argues motions or handles matters before any court, it is probably only a matter of time before you experience a time (or several) when a judge rules against you even though you are quite certain that the facts and the law support your position. In the last couple of weeks, I have twice experienced the sheer helplessness of standing at counsel table, arms locked firmly behind my back, while a judge issued a lengthy and completely incorrect decision from the bench finding against my client.

In the first incident, the judge refused to permit testimony that was relevant and based upon personal knowledge. He also refused to admit documents into evidence even after the proper foundation had been laid. He then found against my client because the documents we needed to prove our case had not been admitted into evidence.

The second incident was even more frustrating. I was arguing a motion to dismiss on jurisdictional grounds. (Briefly: I was before a specialized court with very limited jurisdiction and the complaint filed against my client requested relief that the specialized court did not have jurisdiction to grant). The judge hemmed and hawed for nearly an hour, listening to the facts of the case from opposing counsel even though those facts were not properly before her on a motion to dismiss. In the end, the judge found against my client but ruled that we could renew our motion to dismiss after some discovery.

After the first incident, I spoke briefly with my client after the decision. I apologized for the result, clearly placing the blame for it on the judge’s shoulders. This felt hollow to me. After all, my client had hired me to get the result I had been unable to obtain. Because of the judge’s error, my client was now in a position where he would have to spend more money in order to get the result he should have gotten in court on that day. I was lucky in this instance because the client was sophisticated and understood what had happened.

The client in the second incident chose not to attend the proceedings, but this — in some ways — made it even tougher to explain over the phone later that day. Again, luckily, the client understood litigation and was relieved that we’ll have an opportunity to present the argument again down the road.

As I have written about in prior posts, my background is as a teacher, the de facto judge of the classroom, the giver of decisions and not the silent accepter. In the first instance, I did not do a good job of disguising my displeasure. The judge, upon finishing his ruling, peered down from the bench in my direction with a none-too-pleased look on his face and noted that the record was complete in case an appeal should be filed.

The drive back to the office was maddening. I couldn’t believe that the judge had gotten basic rules of evidence so wrong. As I thought about it, though, I became more disappointed with myself for allowing my displeasure to show so openly that the I had angered the judge.

It was then that I recalled a trial advocacy class in law school in which a professor — a former prosecutor and current judge — told a story about trying a case against a highly skilled defense attorney. Throughout the course of the trial, this defense attorney, after every bench conference, would always, regardless of the outcome of any ruling, say, “Thank you, your honor,” loud enough for the jurors to hear as he walked back to his place at counsel table.

I resolved to learn from my mistake. In the second instance, I showed no sign of displeasure, beyond the answers I gave to the judge’s questions that quite clearly disagreed with her view of the case. In fact, after her ruling, I even managed to say, “Thank you, your honor” before leaving the courtroom.


  1. I’m not sure if this website is for lawyers only. I am not a lawyer but wanted to comment on this article. I don’t understand why it is Ok for a judge to be so wrong yet you(anyone other than the judge in the courtroom) should kiss his [butt]. Sorry for the expression but, bottom line, that is what is expected. I’m searching the web to try & find help with my situation because the judge in my case has based his decisions on lies, refused to look at facts & evidence & it has ruined my life and my son’s life. WHY is this OK??? They are not allowed to break the law yet they do & not only are “we” supposed to accept that but we have to smile too??? Unreal.

  2. I dont unstandstand the [butt] KISSING. Who in the hell are Judges – NOT GOD. There is not Justice in the Justice system. Its all about who makes the money. Get real. You can be right but the justice system cares less about what is right and more about votes and dollar bills. And forget it if you are right but have not been to law school with a PHD- the law and justice will twist what is right to wrong in a flash. Judges dont care about people – they care about their ego.

  3. It is my understanding that the judge is the finder of fact unless a jury has convened. I myself do not agree that rear ends need to be kissed, but if kissing a rear end means I win my case, so be it.

    The system will only change when citizens get the political will to stand up and force the changes.

    An appeal can be filed or perhaps a Motion for Reconsideration should be … considered.

    DISCLAIMER: My comment is not legal advice. Seek the advice of a Bar-certified lawyer for legal advice.

  4. The rule of law is lost in America. A judge should not be a lawyer. If a Judge makes a bad ruling it cost the loser money to appeal a bad ruling. Nothing happens to the Judge. The Judge should have to pay all cost involved with a reversal and be removed from office for being incompetent .Teach them what it’s like to gamble with their own money. I bet there would be changes then.

  5. The Judge threw out my documents that would set the records straight with the factual truth. His claim that it was not his juridiction. The Judge allowed opposing attorney to character bash me making hateful and damaging statements about me and my family that become public record without truth being recorded. Many truths were not permitted to be entered or heard.
    I wonder if investigative reporters would find injustices and covered lies a worthwile project in public opinion to impeach or disbar the corrupt judges.
    The whole truth and nothing but the truth hardly ever reaches the public records and the ears of an honest judge who considers all the evidence.

  6. I think we need to take away the lifetime tenure of lower court judges. That is where the problem lies. They are so tainted and it is no longer just. It needs to change especially in the homeownership arena. Overhaul the judges and make the tenure be earned.