Tips from the Bench, As Told By Amber R. Hayes, Attorney at Law

Before I reveal the secrets passed onto me from our esteemed judiciary, let me tell you what I learned while researching this article: 

I started by researching the Judges and Commissioners around the State of California, including a review of articles written, accolades given, and outreach programs they participate in. Judges don’t just simply sit on the bench and hear cases, issue rulings, and render judgment. They are actively involved in their communities and in the advancement of the profession. In fact, each of the Judges and Commissioners interviewed was class=”anchor” named as Judicial Officer of the Year, holds a position as a Presiding Judge, or has been recognized by the legal community as committing time, effort and energy to the advancement of the legal profession.

Research your Judge.

(1) Review any online profiles – especially any profiles included in theSection pages on the California State Bar website. These profiles include information about volunteer and charity work, and a description of the activities the judge has engaged in to benefit the legal community – all key details in discerning what is important to your particular judge, which will aid in establishing your professional relationship with them. A productive, positive relationship between the Bench and the Bar not only helps the new attorney navigate otherwise murky waters, but can only work to helping the client base have a more positive experience with the legal profession. (In fact, most of the biographical information contained herein was taken from the Section pages).

(2) Take some time to sit in the courtroom of the Judge before the day of your appearance. Observing how the Judge conducts the courtroom will inform you of the etiquette expected from that Judge. While it is true that the Elkins Commission and Task Force (http://www.courts.ca.gov/documents/elkins-finalreport.pdf) calls for streamlined courtroom rules and governing local rules of Court, it is also true that each Judge has different etiquette and conduct expected of attorneys, litigants, and clients. Take note of the judge’s demeanor, use of his or her bailiff, assistant and clerk, and how he or she addresses attorneys versus self-represented parties. 
Following my research, I interviewed the Judges with a specific focus on advice to new attorneys embarking on their first appearances in court, including traps to avoid, tools to sharpen, and conduct to hone. The interviews were held in chambers, over the phone and through an email exchange.  So here’s my second bit of advice:

Talk to your Judge.

Take some time to talk to the Bench when you’re not in Court. Ask them questions about what they expect in their courtroom, or what they think you should know as a new lawyer (be mindful to shy away from any questions or discussions that could be viewed as ex parte communication). In all likelihood, the Judge will thoroughly answer your questions and will be impressed that you took the time and initiative to ask. More importantly, knowing what to expect of the Judge, and what the Judge expects of you, before you walk into the courtroom will give you more confidence and help calm your nerves. 

Judges are not as intimidating as you may believe as a new lawyer and they have a lot of good advice. Some of the Tips included in this article are particular the judicial officer, but there was a running theme of the SUPER SEVEN SAVERS, found at the bottom of this article, which you might want to tear away and keep with you as you begin your career in the Law.

MEET THE BENCH, READ THEIR TIPS

Commissioner Sue Alexander (Alameda County Superior Court) was class=”anchor” named the Judicial Officer of the Year for 2012, for good reason. She has been an active member in the Judicial Council, Family/Juvenile Advisory Committee, Elkins Task Force, Elkins Recommendation Committee, Family Law Curriculum Committee (CJER), AOC Representative to the Department of Child Support Services Judicial Stakeholders Committee and Computer Development, CFCC Resource Guidelines Drafting Team, CFCC Judicial Officer Subject Matter Expert to CCMS, CFCC 1058/1059 Budget Allocation Committee, CJA Family Law Committee, CJA Executive Board, CJA Foundation Board, CCCA Board, Joint Advisory Task Force on the Legal Representation Pilot Project, and various committees for Alameda County Superior Court including but not limited to Community Focused Court Planning (Strategic Planning), Family/Juvenile Ad Hoc Committee, as well as the 1058 Implementation Committee Chair.

For those of you entering the practice in ALAMEDA COUNTY, Commissioner Alexander is an excellent resource for your ethics questions, as teaching ethics at the college level is how she spends her spare time.

Have a Plan

A good action plan for the course of litigation will save the Court time, save your client’s money, and prevent unnecessary argument over issues that are easily resolved. Commissioner

Alexander suggests you utilize the Meet-and-Confer time to plan out, with the help of your opposing counsel, the issues that are amenable to settlement, identify issues that require judicial intervention, and set agreements into Stipulations. Discuss with opposing counsel, in advance, the option and/or requirement for a continuance (do not appear on the day of the hearing and advise the court that a continuance is needed – be respectful of the Court’s time and calendar and tell your judge in advance, through Stipulation, that an advanced hearing date is required).  Not only should you map your litigation course, you should also plan ahead for court appearances: Consider the line through security, question whether you need to provide your own court reporter, arrange in advance for an interpreter, and make sure you coordinate with your client, witnesses and reporters to arrive to the hearing in a timely fashion.

Find the Phrase That Pays

Every Judge knows that client’s will sometimes put you in the precarious position of making an argument with which you either don’t agree or you know is a losing argument. Commissioner Alexander points out that every bench officer listens for phrasing from the attorney that signals that the attorney is making an argument at the behest of a client – so, she suggests phrasing like, “My client wants the Court to know…” Of course, as a caution, keep in mind that every judge knows what the phrase, “With all due respect, your Honor…” really means.

Commissioner David Haet (Solano County Superior Court) class=”anchor” named as 2008’s Judicial Officer of the Year, Commissioner Haet was the first ever Commissioner to take the bench in Solano County and has served in his position for nearly three decades. Before leading the charge for Commissioners in Solano County, Commissioner Haet led the charge for graduates from UC Santa Cruz as a graduate of the first class. He is widely recognized as one of California’s most knowledgeable and experienced family law bench officers, and in addition to his judicial functions, he has served on the Judicial Council, the Family and Juvenile Advisory Commission, the Task Force for Judicial Needs, and the California Judicial Education and Research Commission. He has chaired the California Court Commissioners Association, and currently chairs the Family Law Commission for the California Judges Association. 
Any SOLANO COUNTY practitioners who need help understanding the Judicial Council form would be wise to ask Commissioner Haet for an explanation, given his material role on the Judicial Council.You Are the Architect, Give the Judge the Tools

Every Judge needs the facts and the evidence to support your argument before he can rule in your favor. It is your job as an attorney to set the foundation of the case, to develop a blueprint for your position, and to give the Judge the relevant evidence (i.e., the tools). For example, if you’re asking for spousal support, make sure you have provided the Judge with the Income & Expense Declaration and supporting pay stub information.You Are The Leader, It Is Your Job To Set The Tone

Just as you design your case, you also set the tone of litigation through your demeanor, process, and advocacy. Commissioner Haet cautions you to remain reasonable with your arguments and to remain respectful while arguing. It is never a good idea to personally attack the opposition. There is no need to be brash, obnoxious or loud; and if a ruling is not in your favor, remain composed and polite. A ruling against you is not a personal affront to you or to your client. It simply means the opposing party had a better case. There is a need, however, for brevity: The Judge is listening and he is paying attention, so simply stating your argument, facts or evidence once is enough.

Judge Mark Juhas (Superior Court Los Angeles County) is among good company on this list. In 2011 he was class=”anchor” named Judicial Officer of the Year. He has been on the Family Law Bench in excess of eight years.  Judge Juhas has been dedicated to the improvement of family law throughout the State of California for several years. He has chaired the Access and Fairness Committee and is a member of the Elkins Family Law Implementation Task Force after serving on the Elkins Family Law Task Force for the Judicial Council from 2008 to 2010.  He is also on the Task Force on Self Represented Litigants to the Judicial Council.  He participates regularly in continuing education programs in order to assist the family law bar in their continuing goal to remain on the cutting edge of the ever evolving complexities of family law.  These are only a few examples of his dedication to improving the practice of Family Law throughout the State.

Those of you in Los Angeles who would like some useful tips on working with self-represented litigants should take some time to speak with Judge Juhas (of course, if your query is about a particular litigant or involves a particular case, then seek the guidance of a mentor rather than the Judge.)Kid Gloves, Propers, and You

Opposing the self-represented litigant presents a series of challenges that you will not otherwise encounter when facing an opposing counsel (in fact, you may find that your opposing counsel will help you understand certain elements of the law or certain evidentiary issues, if you simply ask for guidance). Pro per litigants do not know the law as well as you do, they often do not have a true understanding of weight of a particular fact and the internal process of the Court (i.e. the filing of a document with the Court clerk) is often mysterious. You may find yourself frustrated when your bench officer takes time during the case to explain certain rules of evidence, to make objections seemingly on behalf of the pro per, or aides him or her with filing. You may even be tempted to cite to the Rules of Court that indicate a self-represented litigant is held to the same standard as an attorney – don’t. Above all else, the Judicial Cannon of Ethics requires judge’s to reach their decisions on the merits of the case; so, if the Judge asks the pro perquestions or conducts himself as though he seems to be assisting the pro per it is only because the Judge is seeking out more information in order to reach his ultimate decision.

Judge James Mize (Sacramento County Superior Court) began his career as a young attorney sitting as Vice Chair of the California Young Lawyers Association, President of the Sacramento County Young Lawyer Division, the Sacramento Bar Association and the California Judges Association. Recently, he developed the One Day Divorce, which offers legal assistance to self-represented litigants. Through his program volunteer attorneys and law students assist eligible parties in finalizing an agreement and preparing all of the necessary forms to obtain the final Judgment. (HELPFUL HINT: Offering to provide pro bono assistance to eligible litigants through your local bar association is great ways to jump start your experience and knowledge base). He carried his passion for serving the Bar and the consumer (your clients) through to his position on the bench.

Monitor Your Reputation and Maintain Your Ethics

Judge Mize stresses the importance of maintaining your own ethical standard, and the standards under which you are required to practice. Above all else, you are vested with ethics the moment you are admitted to the practice of law. It is yours to keep and yours to lose, so you must decide before the onset of your very first case: What kind of attorney do I want to be? According to Judge Mize, you have two options in answering this question: You can be ethical, or not. Be cautious: Unethical conduct will likely lead you to a win, but it will also catch up with you in your reputation. Rather than seek to tally your wins, focus first on representing your clients well and honorably, discharge your duty of candor to the Court, to the opposition and to your client. You will build your reputation on how you handle your cases and not whether you win with deleterious tactics.

Keep Your Wits About You

Oftentimes, we vest ourselves in our client’s story, or her history. You may find yourself identifying with your client, or taking on her cause as though it were your own. When this happens, take a moment to consider that you are an advocate for the client, but you are not your client.  Failing to separate your role as advocate from your client’s position results in a loss of objectivity and analytical thinking required to be an effective attorney. You must determine what level of passion is required to convince the judge or the jury to rule in your favor, but be cautious to avoid wording such as “we” and rely instead on “my client.” 

In addition to separating yourself from your clients, you must also take time to separate yourself from the practice of law. Initially, the practice is new and exciting and it is easy to become enveloped in the field. But, try to maintain some semblance of balance: Choose a hobby, sport, or passion that you can pursue outside of the practice of law. Being a good attorney requires grounding in the world and balance.

Judge Bradley Nelson (Judge Presiding, Solano County Superior Court). Appointed to the bench in 2008, Judge Nelson has been serving Solano County for six years. Effective January 2014, Judge Nelson was class=”anchor” named the Presiding Judge of Solano County Superior Court and is set to serve a two year term.  Judge Nelson has practical experience in both civil and criminal law. Prior to taking his seat at the bench, Judge Nelson worked most of his nearly 30 year career in private practice taking cases of criminal defense and civil litigation, including employment discrimination, sexual harassment and business disputes.

Judge Nelson majored in Economics at UC Santa Cruz, which requires a particular set of skills. Recently, those skills proved useful when rendering a ruling in a criminal case. How so? He directed counsel to determine whether a weapon would fit into a hiding place by relying on the Pythagorean Theorem, rather than conducting a site investigation of the scene of the crime. Even the Judge pulls from personal knowledge and experience to analyze facts – a useful tool to keep in mind as you traverse your first case.

Attention! Trial Lawyers

Trial attorneys set the tone of their case from the first pleading to their last argument: You must proof-read your documents before you submit them to the judge. Do the class=”anchor” names in the body match the class=”anchor” names in the caption? Have you properly cited cases? Are your pronouns proper? It is easy to make simple (but wholly embarrassing mistakes) in this cut-and-paste world. Likely, you will rely on documents drafted by a more experienced attorney in your firm. And, it is perfectly acceptable to use the template of another lawyer, but be mindful in the drafting.

When in court you must pay attention to the judge, the arguments of opposing counsel, and the words your client is whispering in your ear.

You Must Be a Good Listener to Be an Effective Attorney.

Finally, you must master the rules of evidence: Don’t just commit them to memory, practice them. For example, have a working knowledge of the hearsay rule and the exceptions thereto. Know how to truly utilize a prior statement and practice with prior oral statements, prior written statements and prior testimony. A trial attorney is the maestro of the courtroom, and the better you are at controlling your evidence the more likely it is that you will establish yourself as excellent attorney.

Judge Cynda Unger (Solano County Superior Court) holds the honor of being class=”anchor” named Judicial Officer of the Year for 2006. Prior to her position on the bench, she worked in private practice for 13 years, and was certified as a Family Law Specialist by the California State Bar Board of Legal Specialization in 1991.  From there, Judge Unger moved on to a stint of almost four years as a Deputy District Attorney for Solano County in the Family Support Division.  During her career, she learned a great deal doing legislative work with the State Bar standing committee, and was ultimately appointed to the Family Law Executive Committee (FLEXCOM), where she served until her election as a judge.  She also graded the Family Law specialization exam for several years.

Judge Unger understands hard work, perseverance and tenacity. After a thorough run on the campaign trail, she won a three-way contested election to take her seat at the bench (fun fact: during her campaign, Judge Unger inspired a rock band of the same class=”anchor” name).

Knowledge Is Power

The key to advocacy is to KNOW YOUR CASE – including all the facts, issues and evidence needed to support your argument. When faced with questions from the bench, do not rely on your client to supply the answers. It is your job to represent your client, so if you need a moment to discuss with your client the Judge’s inquiry into the facts, then request the Court pass the matter to the end of the calendar and excuse yourself. It is better to pass the matter and get clarification from your client than it is to hazard a guess – frankly, you owe the court a Duty of Candor, and you must be forthright in your presentation of your case.

Reality Check

You empower your clients when you educate them on the risks, weaknesses, and pitfalls of their case. No case is perfect, and no fact pattern is ideal. You must be mindful to keep your client’s expectations reasonable in light of your role as their advocate, the outcome of their case, and the options they have during litigation.