THE TRIAL LAWYER’S TIGHTROPE WALK

Many years ago, when I was a baby lawyer, I had the great good fortune to have a magnificent mentor – my boss, Marc Jacobson, an extremely well-respected attorney who went on to become a judge of the Norfolk Circuit Court. To this day, I am still reaping the benefits of having been his associate, back in the 1980’s. I write today to underscore a lesson he mentioned only briefly; fortunately, it took, although it was quite a while before I figured out how to employ his wisdom.

On this occasion, I accompanied him to a hearing before a testy judge. Fortunately, for defamation purposes I have long since forgotten the name of the judge or even in which court he presided. All I can recall is that he was cranky, something I figured at that point all judges had a constitutional right to be. During the hearing, he made a ruling that went against my mentor.

As most lawyers of my then-slim credentials would have done, I would have accepted the ruling meekly and moved on. To my surprise, my mentor did not; he held his ground, actually telling the judge that he was wrong, and why, and insisting that the court revisit the point. There ensued an argument between the two, at which I held my breath – didn’t the Angel of Death pay a premature visit to lawyers who argued with judges? To lawyers who dared not to accept a ruling and “move along”?

And yet, no thunderbolt came from the lofty perch of the bench; my mentor escaped the hearing unscathed, although I seem to recall that he did not succeed in persuading the judge to change his mind. As we discussed the hearing while walking down the hallway and toward the courthouse exit – which I figured we had better reach quickly, lest his Honor reconsider his inexplicable leniency – I can recall expressing surprise that my mentor would take that approach. His response was simple, and I remember it verbatim to this day, nearly 25 years later: “You can’t let these judges walk over you.”

Well, that’s a fine bit of advice

, I recall musing to myself in my dubious legal wisdom; how on earth am I going to do THAT?? By my reckoning, these judges had the power to put me in jail if I got obnoxious with them, and they had the absolute right to define obnoxious in any way that pleased them. I had no idea how to assert myself before a hostile judge without getting life in the electric chair, or at least the legal profession’s equivalent of that.

Since that time, I have learned how to do as he suggested – if I had not, Darwinian considerations would long ago have removed me from the ranks of practicing attorneys. But many trial lawyers, even those who have mastered this valuable art of tact, still find themselves on the wrong end of a little judicial intimidation. And that is the subject of today’s sermon.

There is a district judge in the Rocket Docket, Alexandria Division, who acknowledges his own reputation as a, shall we say, hyperstrict jurist. I know, because he said so in open court, on the record, in a contested civil motion hearing in which I participated. His name is T. S. Ellis III, and he is no friend to the unprepared attorney. (Come to think of it, I know of very few judges who are especially kindly toward unprepared advocates. Let’s just say that Judge Ellis is a fine exemplar of the norm.) I will hasten to add that he was never anything other than courteous to me. I sincerely hope that that was because I ensured that my side of the aisle (I served as local counsel, and was charged with rules compliance) meticulously followed the rules, federal and local, in each and every particular before and during the hearing. My adversaries did not receive such a benevolent welcome, which, after all, wasn’t my problem.

This same Judge Ellis conducted a two-week criminal jury trial in 2004, involving allegations of a massive crack cocaine ring that operated in and around the District of Columbia. The ring’s activities extended into Maryland and Virginia, which is why the trial was held here in the Commonwealth; the United States knows all too well the two-pronged benefits of bringing high-profile criminal cases in the Eastern District. (Benefit #1 – The quickest trial they can get, encouraged by the district’s aggressive docketing system. Benefit #2 – Any review would be in the very conservative Fourth Circuit.) At the conclusion of the trial, each principal defendant was awarded a lifetime of free room and board with the compliments of the Attorney General. They appealed, and one of the grounds for the appeal is particularly relevant here.

As stated in the Fourth Circuit’s opinion handed down on June 30, 2006 in United States v. Smith , the defendants primarily contended “that they were denied a fair trial because the district judge improperly intervened [during the trial] with prosecution-friendly questions and interruptions.” Now, I could launch into a full essay on the questions and interruptions, analyzing why each one was or was not unfair to the defendants. But that’s not the topic of today’s sermon. Here is the relevant language from the opinion, which highlights the point I’m making here:

“We begin with the standard of review. Defendants neglected to raise at trial any objections to judicial intervention, and so we review their allegations here for plain error.”

Those of you who know even a little about standards of appellate review are aware that plain-error review has odds slightly better than the next Mega Millions lottery drawing; predictably, this challenge fails, and the life sentences are affirmed. The problem is that the defendants’ lawyers put themselves in an appellate box by failing to speak up when the trial judge spoke up.

The Federal Rules of Evidence make special provision for questions by the court and for objections thereto by counsel. Rule 614(b) authorizes the trial judge to question witnesses sua sponte. Rule 614(c) provides that if a party wants to object to the court’s questioning, he can note the objection “at the time or at the next available opportunity when the jury is not present.” This latter provision is, as far as I know, unique; I know of no other provision of law that enables a party to think over his objection to a question for half an hour or so before stating it.

But in this case, the defendants’ lawyers didn’t do that. Instead, they filed a pretrial motion in limine, asking the court to “refrain from any actions which may be interpreted by the jury as favoring the government over the defense especially regarding the Court questioning or rehabilitating witnesses.” You have to admit, this is a pretty specific request; the attorneys evidently strongly suspected that his Honor would be a mite prosecution oriented. The judge overruled the motion in limine, and during the ensuing trial, the defense attorneys kept quiet when the judge intervened. They objected neither when the court propounded questions, nor at the next opportunity when the jury was absent. They did, however, file a post-trial motion, raising specific instances in which they felt that the court’s questioning was improper.

The Fourth Circuit rules that neither of these approaches is sufficient to preserve any specific objections for full review. The motion in limine was premature, since the district judge had no idea what specific questions or conduct the defense was trying to prohibit. (It also, in the Fourth Circuit’s words, charged Judge Ellis “with bias before the trial had even so much as started.” You may imagine that the appellate court likely regarded this posture with great reservation. Please read between the lines here; I’m trying to be diplomatic.) And the post-trial motion, specific as it was, came too late to do any good; by then, the jury had been discharged and the trial was over. That means that the motion “gave the court no opportunity to redress” the alleged errors in a timely fashion.

The lawyers eschewed the two-pronged option specifically stated in the rule – objecting at the time of the question or as soon as the jury left the room – with fatal consequences on appeal. I am not about to charge these lawyers, who were undoubtedly experienced, with my baby-lawyer sin of timidity. It took guts to file the motion in limine in the first place, especially considering the judge’s self-described reputation. But here, a bit more assertiveness during the trial would have preserved the issue for review on a basis other than plain error.

* * *

Now, then; what about you lawyers who venture not into the lion’s den of federal court? Do you need to obey Rule 614(c) in state court proceedings?

Well, no; in fact, you’ve got it tougher. While Virginia common law recognizes the trial judge’s right to question witnesses, there is no state law counterpart to subpart (c). That is, if you want to object to the trial court’s questioning of a witness, you have to do it then and there, right in front of the jury – there is no grace period until the next time the jury leaves. (It is important to note at this juncture the proposed Virginia Rules of Evidence, a draft of which is currently in circulation for public comment. The draft of Virginia Rule 614 does not contain a subpart corresponding to (c) in the federal rule, so even if Virginia codifies its rules of evidence, there will be no relief for this important difference.)

The big question in the paragraph above is whether you want to object. As I have noted elsewhere, there is a cost every lawyer pays in making any objection in the presence of a jury, and that is the possibility that the jury may perceive that the lawyer doesn’t want the jury to know some fact. Jurors tend to infer that this fact would be unfavorable to the lawyer who’s doing the objecting, and they start making assumptions that no lawyer wants them to assume. Objections during trial are thus a delicate judgment call.

But so, it seems, is “calling” the judge on an interruption you think is unwarranted. In a recent Virginia case, Rose v. Jaques, 268 Va. 137 (2004), an attorney objected to several attempts by his adversary to question a plaintiff’s treating physician. The plaintiff’s lawyer wanted to establish that the doctor regarded the plaintiff’s report of her injuries as credible. That is, the lawyer wanted the doctor to say that she thought the plaintiff was telling thetruth about her injuries. The defense lawyer objected that any assessment of truthfulness was impermissible for a treating physician; that was, he argued, character evidence. After the plaintiff’s lawyer tried several times to rephrase the question, meeting an objection each time, the trial judge stepped in:

THE COURT: Doctor, one of the things you have to do with any patient is to determine whether or not you are getting accurate information, correct?

THE WITNESS: Correct.

THE COURT: Did you make such determination with [Jaques]?

THE WITNESS: Yes.

THE COURT: Did you find the information that she gave you to be credible?

THE WITNESS: Yes.

And the defense, perhaps wishing not to object in front of the jury, said nothing. That failure to object proved fatal on appeal, as the Supreme Court held that the objection to the questions by the plaintiff’s lawyer did not carry over to the line of questioning by the court. I wasn’t at the trial, so I don’t know whether or not this was a case of “letting the judge walk over you,” as my mentor cautioned me so long ago. But there is a natural timidity that many lawyers may face, but must overcome, when the trial judge decides to take the reins.

Trial lawyers must thus learn to walk a tightrope, with the prospect of judicial anger on one side and the waiver of appellate arguments on the other. It takes judgment, maturity, discretion, and a considerable degree of tact to tell the judge that you think his questions are improper. After all, part of his job is to decide which questions are proper, so one would expect that the judge would never ask an improper question. But if you’re in court and this happens to you, remember the lessons learned the hard way by the lawyers in the Smith and Rose cases. You cannot simply sit by and do nothing in hopes of staying on the trial judge’s good side. To do that would invite consequences that are positively . . . unappealing.