Meaningful signals off the bench


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A long time ago, I was trying a case before a jury. I suggested jury instructions that were strongly favorable to me. The judge said, “I think you’re right in law, so I’m inclined to give these instructions. Are you sure you want that?”

I was young. Of course I wanted the instructions! This will help me win the case: “Yes, you. Please give instructions.” I was happy.

The judge was an older man. He was thinking of something different: “My sense is that the jury is more likely to rule in favor of this young man’s client. But the jury instructions are fertile ground for stabbing. The last thing I want – or what the young client wants – is to have this case canceled on appeal because of jury instructions. I will ask the young man if he really wants instructions. “

(And then, again to himself, after my enthusiastic response: “He didn’t even understand what I was asking for. He will learn. Experience matters, after all.”)

Longer ago, a guy I knew from high school was trying his first case – representing the federal government in a trial in federal court. We might have been out of law school for two years at that time. I ran to court on a Friday to see my friend in action, and we went out to dinner that night.

My friend was excited: “The judge really trusts me! The other side objected to two matters we included in the deposition appointment. I explained why the objections were wrong. The judge’s ruling was in my favor! The statement was only copied last night, and the judge certainly hasn’t read the text yet. So much credible that the judge rules in my favor without looking at the testimony. That’s a great sign! ”

The judge, of course, was thinking the exact opposite: “I have decided to settle this case against the federal government. [That is: My buddy was going to lose.] Since I know who will ultimately win and lose, my job now is to minimize the risks of falling back on appeal. So I will adjudicate in favor of the government on every objection between now and the end of the case. After that, when the case against the government is finally settled, the government will have fewer cases to consider on appeal. “

My friend continued to win over all of his objections at the trial, believing he was a good and reliable lawyer. The government eventually lost the case. The government had relatively few cases to consider on appeal.

Experience matters, after all.

I returned to those events during a court session that I attended on behalf of the company I work for now. Late in the trial, the judge ruled against my company in evidence cases multiple times during the day. The senior attorney trying the case on my firm’s behalf was happy. He reported the “trial team call” that night: “Things are looking forward to us. The judge rules against me every time I object.”

I remembered my ignorance 30 years ago: “Young lawyers can be so strange that you feel happy to lose all of your objections. Why not explain it, for the sake of people on the phone?”

he did.

We lost the objections, but we won the trial.

Experience matters, after all.


sign Hermann He spent 17 years as a partner at a leading international law firm and is now Deputy General Counsel in a large international firm. Is the author Curmudgeon’s Guide to Law Practice And the Litigation strategies related to liability for drugs and devicess (Affiliate links). You can reach him via email at inhouse@abovethelaw.com.


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