October 9, 2013
Although knowing the law is important to any practicing attorney, it’s only part of the equation to litigation success.
The other major component is far less tangible and difficult to master: knowing the judges. And by “knowing,” I’m referring to being familiar with the judge as a person.
The reasons why knowing your judges is a necessity are complex and may not be entirely clear unless you already have a good deal of litigation experience.
In a perfect world (or, at least, the world as it appears through the rose-colored glasses of many law students), knowing the judge that your case is assigned to is pertinent, perhaps, for purposes of decorum. After all, the law is the law, and the judge should always apply the law in a detached and objective fashion.
In the real world, however, the personality of the judge is perhaps the most important factor in how a case will be decided, especially at the trial court level.
A judge’s personality has a great deal to do with how he or she will apply the law, especially in situations where the law leaves quite a bit to the judge’s discretion. For example, judges make the ultimate call on whether something was “reasonable” (which can be particular important in criminal law contexts) or whether something is in the best interests of the child (in family law contexts).
That’s assuming, of course, that the judge’s personality is such that he or she actually will apply the law. I apologize for shattering any rose-colored glasses, but judges often completely ignore the law in making a decision, either by ignorance or choice.
And this isn’t just my sour grapes; I’ve been on the winning side of a non- or misapplication of the law just as I’ve been on the losing side. The reality is that this happens more often than many would like to believe.
But my point is not to crush anyone’s idealism, but to offer practical courtroom advice: get to know your judges.
The most direct way is to actually practice cases before them. Besides being time-consuming, however, this method could be a huge gamble. In other words, while you will certainly learn about your judges by litigating your cases before them, you will often learn the hard way about their personalities.
As such, it would behoove you to create and maintain connections with experienced attorneys who may have already practiced before a certain judge and can tell you what he or she knows.
Another helpful, albeit limited, method to learn about judges is to look up their respective histories – previous roles, the political affiliation of the governor who appointed them (if applicable), and written opinions (again, if applicable). While these can offer insight, they are limited in the sense that they do not provide any explicit indicators of a judge’s personal philosophy and how it might apply to your case.
Your next question may be, “why does it matter whether I know my judge?”
Ideally, if you’re in one of the many jurisdictions that allow for it, you can remove a judge without cause at the outset of your case if you have reason to believe that your chances for success are lower with this judge than they would be with another.
But even if you can’t or don’t remove the judge, it’s extraordinarily helpful to know the judge’s biases and personal philosophy at the outset, if for no other reason than to properly structure your arguments and other decisions about your case to the judge.
Again, this is something that most law schools just don’t teach; but it’s nevertheless a skill that can often prove more valuable than knowing the law itself.