THE BLOG

What Goes on in a Judge's Chambers Conference?

01/29/2014 04:23 pm ET | Updated Mar 31, 2014

You ever wonder what goes on when your attorney goes into chambers with other counsel and the judge? Are they busy talking about the weekend football games or basketball games? Are they talking about you and your adversary? Is it really the secret society? Like Upton Sinclair's The Jungle, will it disgust you if you find out what really goes on?

Well, it may depend upon the judge and who is present. I liken it to a mediation where everyone is supposed to let their hair down and really dig in. Can counsel tell the client about all the details? Should counsel be doing that? Many discussions are off the cuff, candid and maybe trial balloons. Often it is a good way to get personal details about counsel or a party that you will never get any other way.

One controversy is should you do a settlement conference, for example, with a judge who is going to be the fact finder in a non-jury bench trial? Food for thought. One colleague related a story to me where the judge perceived that counsel was disclosing in-chambers discussions in a letter to counsel and the court was not too happy about that.

Regardless of what happens, how it happens and whether it should be disclosed, this forum is essential to the proper running of the system. It is neither efficient, proper or productive to have these discussions in open court. Everyone talks about "off the record" discussions. Well, we do such sidebars at trial so we do not taint the jury in connection with technical legal issues or potentially prejudicial evidence. A truly off the record discussion can happen in chambers. For example, counsel may want to ask the court about how juries lately are handling such cases, what verdicts are being returned, etc. Yes, occasionally it could be a discussion about how a certain occupation or demeanor may play to a local jury. One retired judge I know would like to talk about what he called "local legal culture." What may play well in one county may not play well in another. These are the kinds of things that are perfect for in-chambers talks amongst counsel and the court. In addition, settlement discussions and negotiations must be done in private caucuses -- there is no other way for the mediator or judge to properly confer.

Judges typically do not and should not allow unrepresented parties into chambers. They do not know the protocol, are not bound by the rules of professional conduct and certainly could misinterpret what occurs. After all, there is always a recorded record in the open courtroom but the same typically does not occur in chambers.

It may be frustrating or seem unfair but this is a necessary ingredient in delivering justice. After all, you would not expect to be awakened in the operating room when your doctor is conferring with someone else on his team. Bottom line, hire good professionals in the first place. Do your homework on the internet and in speaking with others. Hire experienced and certified professionals and those most utilized and respected by their peers.