Editor’s note: This article appears in New Jersey Family Lawyer’s special issue featuring various top 10 insights from retired judges for effective advocacy and presentation in various stages of matrimonial litigation. Family Law Section members can read the full issue here (login required).
By Hon. Glenn Berman (Ret.)
The venerable investor Warren Buffet has amassed an enormous fortune adhering to two rules:
1. Do not lose money.
- Never forget Rule #1.
We as lawyers do not manufacture or build anything: we advocate for clients orally or articulate their positions in writing.
When addressing a judge, if allowing yourself only two rules they should be as follows:
- Do not finish a sentence that starts with the words, “With all due respect, Your Honor."
- Never forget Rule #1.
Needless to say, there are other “rules” or “guidelines” it would be wise to follow. These include:
- It rarely makes any sense, and is rarely helpful to your client’s case, if you in any way vilify or demean your adversary.
- It rarely makes any sense, and is rarely productive to your client’s case, to vilify or demean the adverse party, unless it is absolutely critical that you do so, and you can do so based upon independent evidence of your assertion.
- Do not say “No” to a judge. More specifically, we all know that there are oftentimes reasonable and legitimate reasons to seek an adjournment of a motion, a case management conference, an early settlement panel appearance, or a trial. But in requesting an adjournment from the court, when you are invariably asked if you have consent from your adversary, rare is the judge who wants to hear you say, “No, I never called them.” The court views joint requests differently than requests to which your adversary objects. The burden is on the lawyer requesting the adjournment to first seek the consent of their adversary.
- When arguing a matter, do not say, “I’ll be brief,” or “I just need another minute,” unless you are going to abide by what you say. While judges will listen, little is more annoying than a lawyer promising to be brief, and then being anything but.
- Do not forget to proceed your argument with the words,“Good morning, Your Honor, thank you for hearing me,” and “thank you,” at the conclusion of argument. We all know that family practice can be acrimonious, but it lowers the temperature when attorneys are gracious.
- During a settlement conference with the judge, do not say, “My client insists on trying this case.” The system will collapse of its own weight unless the overwhelming majority of the cases are settled, and as someone once indicated to me: “Good lawyers try cases; great lawyers settle them.” When I was interviewed by the governor’s chief counsel the first time I was appointed to the bench, I was told this: “We’re looking for people to be judges who have the ability to try cases; but that is the last thing we want them to do.” Everyone is entitled to a trial; and every litigant will get a trial if the case cannot be resolved. However, you always want to advise a judge that your client and you are open to an amicable resolution, which benefits everyone.
- After you have argued your motion and receive a decision you are not enamored with, don’t say, “Judge, I have a question,” unless the ruling is truly unclear or ambiguous. To a judge, these words are code for a desire to re-argue what has just been argued and decided; and on a busy motion day — as if there is any other kind — there is rarely a benefit in attempting to re-litigate what has been fully explored.
- Nine is enough.