A Matter of Style

A Matter of Style

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A lawyer is more than a mouthpiece, more than an agent, more than a mere compendium of legal truths. A lawyer is more than a mere translator of a client's desires. A lawyer is representative not just of the client's interests, but in some ways the embodiment of the client.

It is for that reason that a lawyer's style is more than just stylistic. How a lawyer comes off in court can all too often dramatically affect the perception the judge is likely to develop of both the client and the merits of the client's position in a case. In short, style matters.

Some styles work better than others, of course. Every judge has their favorite style, as well as styles that rub them the wrong way. However, there are some generic styles that I suspect one can safely say work well for most judges, and some that grate on most judges, just because of the nature of the judging process. Very good lawyers can choose a bad style, and in the process substantially reduce their effectiveness before the court. Knowing full well what the reader wants to know about first, let's talk first about the styles that grate on the nerves.

Styles that Grate

The Pharisee. Some lawyers—quite often including very good lawyers—employ a demeanor of righteous indignation that communicates to the court that there is really no need to listen to the other side, for any fool can see the rightness of their own client's position. Such lawyers can hardly wait to get to the podium to tell the judge the Self-evident Truth. A judge will quickly recognize this style, too. All the judge need do is ask the lawyer a challenging question, or suggest a take on the issue other than the one being suggested by the lawyer. The judge will be greeted immediately by a look of pain and hurt (and even reproach). No one else in the courtroom sees that look—the lawyer is at the podium, his or her back to the rest of the courtroom's occupants. But the judge sees it, and I can assure you that it infuriates. It's not hard to see why, of course. Judges see themselves as impartial arbiters of the law and the facts, constrained to hear both sides before reaching a conclusion. Too, they deem it to be their call as to which side is walking with the angels. The self-righteous style insults the judge for doing his or her job, and demands that the judge justify himself or herself to the lawyer. In response, many a judge will relish the opportunity to slam such a lawyer. Worse, however, the judge is likely to see the client as equally rigid and self-righteous. In a bankruptcy case, that is a lethal conclusion, for the party will lose credibility as a result. Even when the client has a good point later in the case, the judge may not give it credence, unless the judge is working extra hard to stay neutral and openminded.


Very good lawyers can choose a bad style, and in the process substantially reduce their effectiveness before the court.

The Ingratiator. Good lawyers can fall into this stylistic trap, too. Often, it is a lawyer who has known the judge for a long time who may be most prone to adopt this style. The lawyer effects an air of special chumminess that suggests to the judge—and to everyone else in the courtroom—that this lawyer, among all others present, has a special relationship with the judge that all but assures that whatever the lawyer asks for, the judge will grant. To any courtroom observer, it should be obvious that nothing could be further from the truth, but the judge will be irritated nonetheless. No judge appreciates the suggestion of special access. It demeans the integrity of the judge, and calls into question the integrity of the process. And the judge has no real way to blunt the implication. The client's interests will invariably suffer because the judge, in reaction, is likely to be especially harsh on the lawyer. Incidentally, the ingratiator should not be confused with the many, many lawyers that a judge will have come to know, like and respect over the years. Most lawyers can be friendly enough—even genuinely interested in sharing life's events with the judge—without becoming an ingratiator.

The Predator. The lawyer that employs this style is usually (though not always) extremely bright and capable. But they are stalkers, and the prey is the judge. Every judge knows this style, though it is sometimes not so obvious to others in the courtroom. The judge renders a ruling—perhaps a ruling on the merits, perhaps only an evidentiary ruling—and the lawyer seeks clarification of what the judge has ruled, usually by rephrasing what the judge has said and pushing for the judge to either ratify or correct what the lawyer has said. At that point, the judge knows that he or she had best be careful about what is said next, because if there is a misstep, that will be the error point on appeal. Now, of course, any judge needs to realize that everything is subject to appellate review. What makes this particular style so galling is that the lawyer who employs it seems bent on exposing the judge to embarrassment and ridicule. The judge almost instinctively becomes defensive, tense and wary—and of course, distrustful. Some judges may be intimidated by such tactics (which no doubt motivates the use of the style). But adopt this style before an unintimidated judge and all that can be assured is that, if there is any way that the judge can find to rule against such a lawyer (and the client, of course), that's exactly what the judge will do.

Styles that Work

There are good styles, too. They are not so much fun to talk about, and are nowhere near as much fun to name. But every once in a while, a style comes along that makes a judge come off the bench thinking, "Wow, that was some really fine lawyering." Certainly a judge is impressed with any lawyer who is prepared, who is intelligent, who is honest. But a lawyer can be all three of those things, and still grate on the judge's nerves because of a poor style. By the same token, lawyers can employ a positive style that dramatically enhances their credibility and the credibility of their client's position. Here are a few examples.

The Colleague. Not to be confused with the ingratiator, the colleague adopts a demeanor that telegraphs to the judge that the lawyer is as committed to reaching a fair and just resolution of the matter before the court as is the judge, if that is possible. Quick to acknowledge weaknesses in their position, they are equally quick to suggest a fair way to view their client's situation, notwithstanding that weakness.

The Teacher. A good teacher is always welcome in a courtroom, because a good teacher never demeans the student—especially when the student is a judge. Still, they recognize the need to walk the judge through their case, being especially sensitive to how easy it is for a student who is nowhere near as familiar with the case to become confused or misled by either complicated facts or complicated legal questions. Most judges are natural students. They became judges in no small part because they enjoy the intellectual challenge that accompanies the job. They are, as a group, curious about new things, new ideas, new factual situations. So long as the lawyer does not fall into the trap of condescension, this style will wear well and be much appreciated by most judges.

The Honest Broker. This last category was suggested to me by a recent experience with a criminal lawyer, called into court on a show-cause matter. The lawyer had tried to help out in a bankruptcy matter that a criminal client had brought up, and in the process made some missteps. In response to the show-cause, the lawyer came to court with witnesses and exhibits, and in a careful and relatively dispassionate manner, explained what had happened and why. The lawyer was not defensive, nor did he express outrage at the court for daring to suggest he might have done something wrong. He took the matter seriously, and presented his side of the story. In so doing, the lawyer tacitly recognized that the judge has an ongoing duty to police the integrity of the system over which the judge presides, and that this show-cause matter was simply part of that process. The maturity of the lawyer in taking the matter seriously without taking it personally earned him many "style points" with the court.

Journal Date: 
Friday, September 1, 2000