I have reached a point in my life where everything annoys me. Precisely when this happened, I do not know. It seems to have occurred suddenly and it is particularly evident when I am sitting in Family Court where I am on the verge of becoming a judicial curmudgeon. It may be that I am merely a grouch, because, according to Jon Winokur’s The Portable Curmudgeon, “you’re a curmudgeon only when someone else says you’re a curmudgeon”.
As soon as I walk into Family Court I am annoyed. On mornings when I am scheduled to hear a family case, if someone greets me in the court house hallway with, “Have a good morning, your Honour,” I typically reply, “Thank you, but I have other plans.”
Most annoyances are merely a matter of advocacy; and, good advocacy is as much about knowing all of the things that you should not do as it is about being aware of those things that you should do.
When I was in practice, I thought that the most difficult job in the world was being a courtroom lawyer. Since becoming a judge, I have arrived at a different view. I am now satisfied that a competent and polished advocate does not require the genes of Eddie Greenspan. Competency and polish are largely learned talents.
Successful advocacy is rarely the result of a single overriding ability. Instead, it consists of an accumulation of little skills coupled with the avoidance of annoyances.
THINGS LAWYERS DO THAT ANNOY JUDGES
My list of annoyances is in no particular order. As well, I offer the reminder that an annoyance is, by nature, something trifling or minor; yet, when you make your living practising the science of persuasion, does it not make sense to avoid as many unnecessary annoyances as possible? What follows will allow you to calculate your annoyance rating.
Rolling eyes, dancing eyebrows and other mannerisms
Most mannerisms are annoying; more importantly, they are distracting. Do you want me to be focusing on your mannerisms (clicking a pen, jingling pocket change, making faces) or your submissions?
Many counsel would do well to receive Botox injections to their face. I say that because an overly expressive face is a distracting liability to one’s courtroom conduct. When I make a ruling for or against your client, try to conceal your glee or disappointment, as the case may be. I recall one senior trial counsel who scowled and pouted every time I ruled against him. It was the strangest sight. Was he expecting me to say: “Counsel, I see that you are upset with my ruling. I am very sorry. I will reverse myself immediately.”?
Do not bob or nod your head in agreement if I make a point which meets with your approval. A bobbing or nodding head belongs on the dashboard of one of those motor vehicles with oversized tires and a loud muffler. Apparently, there are lawyers who think that I am sufficiently obtuse as to find in their favour if only they can nod their head appropriately in advance of the ruling. I have had to remind more than one counsel that if they spotted a turnip truck in the court house parking lot that morning, it was not mine.
Blindfolds, darts and estimating the length of a trial
I am convinced that lawyers are missing the gene necessary for accurately estimating the length of trials or long motions. It is not uncommon for sober, experienced counsel to advise the court that a trial will take two weeks only to have it go on for six weeks. How is it possible to misjudge the case so miserably? It is better to overestimate the length of a trial by two weeks than to underestimate by two days.
Has your Honour read the material?
In motions court, never ask me, “Has your Honour read the material?” Never. Never. What school of advocacy recommends embarrassing the judge at the outset of your motion? You might as well inquire whether I had bathed that morning.
It is annoying when lawyers address me as “Sir” in court. I find such an appellation too generic. I realize that some judges profess not to mind “Sir,” however, I do not believe them.
I am annoyed by lawyers who, during a trial, function in blissful oblivion to their surroundings. Some counsel are so oblivious to what is taking place around them that I could drop through a trap door and it would go unnoticed for hours.
By this I mean, for example, they are unaware: (a) that the time for the morning and afternoon recesses or the noon and end-of-day adjournments have arrived (turning me into a clock-watcher); (b) that I am furiously making notes and falling behind in the task; (c) that I am obviously lost in the documents brief or fumbling with the factum; (d) that the witness has not answered the question asked, yet the next question is underway; (e) that I am trying to attract the attention of counsel (many counsel, while questioning a witness, keep their head down as if walking into a strong headwind, thereby aiding and abetting the state of oblivion.); (f) that the court house is on fire.
Competent counsel are alert to all of these things and more. They wear courtroom antennae, not blinders.
About the Author
Justice Quinn is a judge of the Superior Court of Justice, presiding over the Central South Region.
This article is an excerpt from Just Quinn’s 2012 paper, A Judge’s View: Things Lawyers Do that Annoy Judges; Things They do that Impress Judges, presented at the 2012 OBA Institute Family Law Program.