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Tips and Tricks

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A long time ago, a friend of mine asked me if I would mind writing a column about how things look from the judge's side of the bench, with a view to giving bankruptcy professionals some good ideas about improving their practice. This column has, over the years, served a much larger function—that of giving judges a forum in which to express views, promote new methodologies and advance novel ideas. With this issue, this author returns to the original motivation for instituting this column. So, herewith, some tips and tricks that might improve your practice.

1. Briefs. If you want to impress a judge, and get the judge to buy your version of the law, then file a brief—even if the issue arises on the chapter 13 confirmation docket! The judge is going to ask you about the law anyway, and you are expected to know it, so you might as well write it down and share it with the judge.

Of course, the thing about briefs is that they have to be clear, right on the law and in plain (but good) English. Nothing will ruin the credibility of a lawyer quite like citing a case for a proposition for which it does not stand. Don't do it.

The other thing about briefs, often overlooked by lawyers for some reason, is that they do you no good if the judge does not read them. To make sure that your brief does not fall into that category, be sure to file your brief far enough in advance of the hearing that a copy of it will actually get to the judge's attention before the hearing—which rules out filing the brief the day before or the morning of the hearing.

2. Oral Argument. Arguing your case is not the same thing as arguing with the judge, a fine point that is often lost on lawyers (and sometimes lost on the judge as well, to be honest). The judge is (usually) pushing on a position to see if you have an answer for a possible weakness. Also, most judges really want to make the right decision—which is, of course, not necessarily the same thing as making the decision that favors your client. So if the judge's queries appear to be pointed, the one thing you should never, ever do is to take it personally. Use the judge's pointed question as an opportunity to turn the issue in a new and more productive direction, or to raise a policy issue or viewpoint that the judge had not addressed.

Another thing about oral argument (which is really what much of bankruptcy court practice boils down to) is that it affords you a marvelous opportunity to put the most favorable law for your side before the court. Bring copies of the cases you want to rely on with you to court. Don't highlight the sections you want to rely on, however, unless you know that is okay with your judge—and make sure that opposing counsel gets exactly the same thing the judge gets (right down to the highlighting). If the law involved is esoteric—law from another state for example, or law from the Code of Federal Regulations—be sure to bring copies with you.

3. Witnesses. ABI has sponsored a litigation symposium at Emory Law School that I highly recommend to bankruptcy lawyers who often forget the basics of presenting testimony through witnesses. In many cases, the testimony will be perfunctory; the trustee's testimony in support of an application to compromise a controversy is often of this character. Most of the time, however, if the issue warrants testimony, then it is worth being presented properly. Here are a few things to keep in mind when you put on your witness.

On direct, please don't lead. Believe it or not, this often hurts the credibility of your case even if the other side is sufficiently clueless that they fail to object. Because the trier of fact is also the judge, the leading questions are obvious—and tend to communicate the message that the witness, if left to his or her own devices, might not know the "right" answer to the questions. This is not the impression that you want your finder of fact to have of your witness, because of course it undercuts the witness's credibility. It also suggests a lack of preparation on your part (not a good thing).

On cross, always lead. The worst thing a lawyer can do on cross examination is to give the (presumably adverse) witness a chance to explain an inconsistency or incongruity or similar problem. Don't give the witness that chance. Cross examination is an opportunity for you to thoroughly control and manage the witness, a task made considerably easier when your questions are not open-ended. If nearly every question is leading, you will have an easier time maintaining that control.

While we're talking control, do not admit that you have lost control by begging the judge to instruct the witness. "Objection non-responsive" is an admission that you have lost control of the witness. The judge expects you to maintain that control and, if the witness waffles, will permit you to be quite a bit sharper to maintain that control. You can usually do this without yourself having to demean the witness or losing your cool. If the witnesses continues to bob and weave, you will have accomplished your goal of destroying the witness's credibility without ever having to beg the judge for help.

4. Exhibits. Technically, this could be discussed under the heading "witnesses," but is worth a separate paragraph or two. Many courts have local rules regarding exhibits, and any lawyer who practices in that court ought to be sure to know those rules, or risk unnecessarily tarnishing his or her reputation. Amazingly, some lawyers become so accustomed to not having to actually litigate most motions that when finally they must litigate, they have no idea what rules apply to exhibits. Do not make this mistake.

If you are going to use exhibits, here are some practical tips that will likely apply under any court's local rules. Have the exhibits marked in advance (don't ask the clerk to mark them for you—the clerk might not have exhibit stickers handy). Have extra copies (my rule is that you need at least five—the original for the official record, a judge's copy, a witness's copy, opposing counsel's copy and your copy). Know how to lay the predicate for getting the exhibit admitted (this requires advance preparation). And don't forget to actually move for its admission (you would be amazed at the number of times this happens). If you are going to use a "blow-up," test it in advance to make sure that the judge can actually read the blow-up from the distance that the blow-up will be from the judge. Otherwise, forget about the blow-up (because it will just clutter up the courtroom and waste everyone's time).

5. Humor. If you're no good at it, don't do it. If you are, then use it sparingly, but at the right time. Humor at a witness's expense is always a bad idea. Humor at your own expense is usually safe. Inside jokes should rarely be used if the "insiders" are you and the judge—you are inviting the judge to "play favorites," something that most judges never want to do. Humor well done is exquisitely powerful, but chummy humor makes everyone in the courtroom feel uncomfortable—especially the judge. Understated humor usually is the most effective. Dry humor is elixir. Mean humor is demeaning. Never, ever make fun of opposing counsel (no matter how tempting). Avoid sexist humor at all costs.

Well. This article fulfills the original mission of this column. More such articles may follow, as other topics arise. If you want to know what judges have to say about other practice issues and areas that I haven't already covered here, drop me an e-mail. And, as always, I invite my colleagues on the bench to share their own viewpoints (which often differ from mine!) by submitting their own articles for publication in this column. I hope this article proves useful to you all.

Journal Date: 
Wednesday, May 1, 2002

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