ADVOCACY – THE JUDGE’S VIEW, SERIES 2 PART 5: REMEMBER JUDGES MAY BE TALKING ABOUT YOU: ADVICE FROM THE STREETS OF SAN FRANCISCO
Here we look at an interview with San Francisco Superior Court Judge, Curtis Karnow. The interview was about a book the judge had written “Litigation in Practice“, which is available in the UK. The original interview by is Ros Todd. As ever the aim is to encourage you to read the original and (on this occasion) buy the book. There are five key points here all of which travel well.
WORKING FOR JUDGES (OR AT LEAST GOING TO COURT) HELPS
Judge Karnow notices a difference between those who have experience in court and those who don’t. In particular those who have clerked for judges.
“I can often tell the difference between lawyers who have clerked for a judge and lawyers who have not. The lawyers who have clerked for a judge just get it at sort of a visceral level—what things look like from the other side of the bench—and would never make certain arguments that a lot of lawyers do make for their own reasons but which are never going to be persuasive. So, increasing the number of people who are [working for] judges would be a wonderful way to introduce them to litigation.”
JUDGES KNOW WHAT “WITH ALL DUE RESPECT” MEANS
In answer to the simple observation that judges know what “with all due respect” means Judge Karnow replied
“JUDGES GOSSIP ABOUT LAWYERS ALL THE TIME
“… I should say that as a lawyer I spent a lot of time gossiping about judges and complaining and I think that’s just part of the job description. By the same token, judges talk about lawyers all the time.”
“And so if you’re in one judge’s courtroom, you should probably imagine that all the other judges in the courthouse are watching through one-way mirrors or something like that.”
ANY QUESTION LONGER THAN 45 WORDS IS A BAD ONE
The judge explained why shorter questions are better.
“Number one: When you get an answer, you’ll know what it was an answer to and so will the court of appeal. So, you’re making a record for the court of appeal and you’re making a record for the trial court. If you have a long-winded question and if there are a lot of different parts of it that could be answered either yes or no, you won’t have a record in the trial court and the court of appeal may or may not agree that certain facts were established in the trial court. More importantly the witness may not understand what you’re talking about.”
BE WARY OF LEGALESE AND TECHNICAL JARGON
This applies to lawyers and expert witnesses.
“We’ve got the same problem sometimes with expert witnesses, where the expert who may not be a professional witness wants to talk about a specific issue and has not worked sufficiently with the lawyer to translate that technical opinion into English. And I’ve seen an hour, two hours go by of expert testimony and I’m wondering whether anybody on the jury actually understood a word of what was said. The lawyer is comfortable. The witness is comfortable, but they’ve forgotten who they’re preforming for.”