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How to Deal with a Bad Judge

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Judges are the weakest link in our system of justice, and they are also the most protected.
-Alan Dershowitz

Many people are cynical about our legal system, especially lawyers and litigants in a custody or divorce case. There have been, and will no doubt continue to be, a number of cases where bad behavior is rewarded and honesty does not seem to pay; but overall, the system does work. A few bad apples are not representative of the whole judicial system. And that holds true, not only for lawyers, but for judges too. Most judges are fine public servants that are insufficiently compensated to listen to intolerable family sagas that most of us could not even imagine, and serve in their role because they care about other people and believe in the system. Nevertheless, just like lawyers, there is no shortage of bad judges. Unfortunately, I have had the displeasure of appearing before some of them and I thought I would offer ten tips about how you might handle your day in court. But first, what is a "bad Judge"?

The worst judges, in my view, are those that suffer from what is secretly known as "black robe syndrome." They have forgotten the pressures imposed upon lawyers in busy litigation practices or litigants in dealing with the incredible stress of divorce or custody litigation. Others have forgotten their humility. A number of them have forgotten their manners. Others are simply arrogant-and the worst part is that their arrogance is not predicated upon their legal accomplishments, but merely upon the office that they now hold. In forgetting their roots, these judges display an attitude that lacks compassion or patience for either counsel or litigants. I have encountered judges that are downright nasty and the recipient of their anger is usually an unknowing lawyer or his or her client. I can only surmise that these wretched cretins must really have a miserable existence at home to bring such hostility and lack of social presence into a place where the resolution of disputes is supposed to occur, as opposed to the escalation of the dispute--especially by the judicial officer presiding over the matter. Being a judge strikes me as one of those jobs where the lawyers or parties appearing before them should not have to cower just because they are having a bad day, or life.

I have tried to internally suppress the memory of a judge that had big white fluffy hair--and clumps of dandruff to match literally piled on the shoulders of his black robe. I am not attempting to assault anyone for suffering from a skin disorder (although I believe that there are medical treatments available for eczema and dandruff). I am assaulting members of the bench that do not hold themselves out to the public and to the members of the bar in a manner that replicates the scales of justice that they are sworn to uphold. Judges are people that are sworn to exercise judgment over others. And frankly, if a judge is not intelligent or caring enough to get some shampoo to control his dandruff problem, I do not want him judging anything pertaining to the rights of my clients.

Frequently, bad judges are intellectually lazy--I remember one judge that was more concerned about the golf course than about adjudicating the rights of the citizens appearing before him. Or the type of judge who does not have the cojones to make a difficult decision. I see this sometimes in custody cases. For example, the children's interests would be better served by awarding custody to a father, but the judge does not have the "courage" to make the right decision, a result that could be enormously frustrating, not only to the father that deserved to win, but to counsel as well--at least one of them.

So what can you do to help get the results you want in Court? Remember these points:

1) Lawyers have very little latitude (if any) in the selection of the judge that may preside over any aspect of your case-if you get a bad one, you must be even more conscious of these rules;

2) Most judges are ordinary people with common sense-don't think that you will fool the court--most experienced judges have seen and heard it all;

3) Once your credibility with the judge is lost, it is almost impossible to regain it-stay safe by not losing it in the first instance;

4) Judges loathe witnesses that do not directly answer questions--do not argue your own case--that is your lawyer's job;

5) Be aware of your body language and what you say and do from the moment you enter the courthouse until the moment you leave--you never know which judge or judge's clerk may be right around the corner;

6) Be especially aware of your body language in the courtroom--never react while someone else is speaking or testifying and do not be a hyperactive note scribbler-it makes you look unprepared, defensive and somewhat neurotic;

7) Always be respectful of the court, its rules and process;

8) Never try and speak over or argue with the judge-when they start talking, you stop talking; and,

9) The judge will be more likely to rule in your favor if you are truthful, respectful, acknowledge your own mistakes and are sincere.

The behavior of judges in divorce and custody cases, both positive and negative, needs to be the subject of vigorous discussion to improve the efficacy of our judicial system. I encourage you to share your experience with family court judges in the comment section to this post.