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How to win at the waiting game

Hurry up and wait.

These four words usually describe the life of a litigator (or at the very least, my life as a litigator). Whenever I have a court appearance, I calculate my time to ensure an early arrival to the courthouse. This allows me a certain amount of flexibility if I have issues, whether they involve traffic, long lines to get into the courthouse or one final review of the important legal research my argument pivots upon. I hurry to make sure that I will be on time (or early) to court and continue to hurry until I am at court (even when I have time to spare).

(Timeliness may be ingrained in me because, as a law clerk, my judge was punctual to a fault and would be on the bench at the stroke of 9 a.m., with the expectation that the opposing parties would be punctual as well.)

As a civil litigator, however, my cases tend to be called during the latter half of the docket. At least in state court, judges usually have preliminary hearings before the meat of their docket, including violations of probation, custody issues or other matters that can be handled fairly quickly. While I need to be prepared for my case to be called the moment the judge enters the courtroom, there usually down time while I await the completion of the other matters on the docket.

In those instances, instead of responding to emails (or playing Angry Birds) on my iPhone, I take the time to figure out the courtroom dynamics. I try to determine the mood of the judge and how she rules on certain issues. I want to know the judge’s pet peeves, how much latitude she gives the lawyers and how she will react to my case (or witnesses). I then tailor the presentation of my case to the judge (obviously, this would be different if the matter were a jury trial).

Recently, in a state district court case, I observed the presiding judge handle a couple of cases before mine was called. My case, a dispute relating to the construction of a building, centered on specific contractual language and, based on the judge’s previous ruling, I felt confident that we would be successful in our case. I thought the judge would be sympathetic to my client: she held in an earlier case that parole evidence was not permissible because the contract was not ambiguous or vague and she let the attorneys try their cases.

I figured out how to tailor my case and examination based on the success (and failures) of the previous cases. As luck would have it, however, our case was moved to another courtroom with a different judge. (Ultimately we won but it was not a 100 percent victory, and I still believe I would have been more successful with Judge No. 1).

Regardless of the outcome of that case, the time spent in a courtroom begins when you are in the courtroom and not when your case is called. Use that time wisely and for the benefit of the case at hand. Essentially, figure out what the judge wants to hear and how she wants to hear it. Then configure your case to the judge’s needs, because ultimately, she will make the decision.

There will always be time for Angry Birds (or emails) later.

One comment

  1. You are sooo smart. How did I ever live without this critical tidbit of expert litigation insight? No doubt watching a few inane VOP hearings helps you get a read on how your judge will interpret a construction contract.

    Here’s a tip for you: Proofread.

    “… our case was called to be was moved to another courtroom …”