A Cynics Guide to Civil Litigation; Chapter 3 - Speaking and Speaking to the Judge

Every profession has its language. Every job has nicknames, short names, abbreviations, project titles, code names, - language that uses fewer letters. Why is that? I get that we developed new words to use when we are texting, Tic Tocking, Instagramming, (just made up those two), Tweeting, etc., but why when we are talking to each other? Seems odd to me. Are we running out of oxygen? Do we need to save our breath? We are not doctors who may have to use vocal shortcuts to save time and a patient’s life. Are we bored with our language? Do we need to change it because we need to show how slick we are?

If making up new words or using words from a dead language is any gauge of how smart we are, then lawyers are wicked smaht. We use Latin!

That is right…Latin. Sometimes I feel like it’s the 12th century and the Vatican is against translating the Bible from Latin to English because the masses won’t understand its complexities. Is the law some big secret like “Area 51”? (I bet you just thought of a lawyer-alien joke) Maybe we should bill in Roman denarius aureus (see how wicked smaht I am!) instead of USD. Do we want Latin words in our vocabulary because we gotta have more words to use to make us sound smart? Never could figure the reason. But I do remember being in Law School and thinking this is dumb. Use real words for Christ’s sake! (Yep...I used the word “Bible” and “Christ’s sake” in one paragraph. Do digital books burn?)

I am not going to start a movement to ban the use of Latin in the law. I will, however, translate some of what you might be facing.

1. Pro Se

Representing yourself. Be aware, in some states you cannot represent your own company, even if you have partners.

2. Pro Hac Vice

Getting permission to be an attorney in another state. Commonly called “getting Hacked in".

3. Res Ipsa loquitur

The Thing Speaks for Itself.

4. Pro Bono

Lawyers doing things for free.

5. Per Diem

Something, usually money, that is counted daily.

6. Bona Fide

In good faith, the real thing.

7. Habeas Corpus

Having the body, as in getting someone to court.

8. Status Quo

The conditions as they exist at present.

9. Alibi

Claiming you were somewhere else.

10. Sua Sponte

Taking on doing something voluntarily.

11. De Novo

Reviewing a case or issue new or without referencing a prior legal decision.

12. Ex Parte

Without Johnny Doe present.

13. Ad Damnum

The appropriate amount of money for the harm caused.

14. Writ

A form of written command or request.

15. Certiorari

The process for asking the United States Supreme Court to consider hearing a case. It is called a “Writ of Certiorari”.

There are others but you are probably familiar with them, like an affidavit. The above is just a short list of the stranger ones.

Okay, enough of the dead language stuff, let’s talk a little bit about you talking, in court, if you are representing yourself (pro se).

Ever wonder how it is that a lawyer can just tell the court what they are thinking. It’s like they are a wizard at talking. It doesn’t work that way. It takes practice and there are rules to follow.

Every one of us lawyers understand the cardinal rules of court appearance. It would be good for you to understand them as well. I use "Court" and "Judge" interchangeably, but I mean the same thing…the Judge. Why? If I am speaking about what a Judge has done or said, I do not use the word "you" as in "you said this or that. You did this or that". It is too accusatory. Neutralize it by saying the "Court". "The Court ruled this way in the past. The Court was wrong in saying the light was red." If the Judge wants to know what Judge, or if he or she did it, they will ask, and you can answer. Court means Judge. Gets to be a habit you cannot break.

Time for another list:

1. When the person with the most power over your case is talking, you don’t…like the Judge. This is true even if you are interrupted. Shut your trap.

2. Everybody gets their turn no matter how outrageous Johnny Doe is[1]. Don’t interrupt. Judge’s hate it when you interrupt.

3. Don't talk to each other. Bad idea to start arguing with Johnny Doe in front of the judge.

4. When you introduce yourself to the Court state what side you are on. “My name is John Smith and I represent myself.”

5. Don’t use profanity unless it is part of your case, and you need the Court to know what was said. Even then, I would abbreviate. You don’t know the sensitivities of other people. (I use profanity in this book because, to me, profanity is just colorful punctuation. You put the meaning behind the words you read, not me. It’s different here where you can just skip past the words. In Court, you are shoving them into the Judge’s face.)

6. Be brief. Your job is to get your message across quickly and with as few words as possible. Judge’s listen to lawyers all day. They appreciate when you are to the point. Don’t hammer a nail into the Judge’s skull. If you have a big point to make in your case, you will have the chance to make it. The Judge will give you every chance to speak until he or she thinks they have heard enough.

7. Be respectful. Do not argue with the Judge. If the Judge is wrong in something they say, point out the difference as politely as possible. I often say something like, “I think I may have confused the Court. Let me try to explain this way.”

I know some of this stuff sounds uncomfortable. If the Judge gets something wrong when you have already explained it, then they probably were not listening or just don’t get it. Being in Court in front of a Judge can be about as uncomfortable as it can get. You need that Judge to decide something in your favor. Even if the Judge is not the brightest bulb, the Judge has the power and can hurt you. The trick is to get the Judge to agree with you and for you to maintain a little self-respect. This is not the most pleasant experience you will ever have. If you get out of Court with a win, then you can tell your story however you want. The Judge’s power over you ends when the case is over.

Let's get back to why it is lawyers seem so good at public speaking. First, it is not true across the board. There are a lot of lawyers out there who should not be appearing in court. There are far fewer trial attorneys than there are other types simply because there is a greater number of people who are afraid of public speaking. It can be scary. You are the center of attention. Everyone is listening to you. Everyone is looking to see how good or bad you do. A lot is riding on what you say and how you say it. If you make a mistake, it feels like you won't recover, or you will lose your way. Tons of stuff can go wrong.

Trial lawyers have a certain mystique, even among colleagues. A good trial lawyer is worth their weight in gold. A trial lawyer gets a lot of business from lawyers who do not try cases. Trial lawyers are billed out as “trial counsel” if the case goes to trial.

Every time you exit a courtroom after presenting your argument, pat yourself on the back. You have done what most lawyers cannot do, and others are bad at doing. It does not matter how good you were. It matters that you did it.

To avoid the fear of public speaking, (which we all have, by the way), prepare what you are going to say and practice it. That is the big secret. You cannot stay in your comfort zone and expect to accomplish anything in life. (philosophy 101) You must get out of your comfort zone to achieve. You do not have to be so uncomfortable you are catatonic. Preparation and practice lessens anxiety.

All lawyers prepare. We wouldn't be very good if we just tried to shoot from the hip every time we were in Court. Eventually, it would catch up with us and we would get thrown out of the law (disbarred), for acting like idiots. We take the time to prepare. After a while, it does not take as much time to prepare. You get pretty good at it as time passes. Just like anything else you get better at something the more times you do it. The more complex the case, the more effort we put in. It can take days to “prep” for Court in a complex case.

Lawyers develop thinking aids. These are little quirks that help set up an argument. We rely on them faithfully. Decades ago, I developed a thinking aid that helps me quite a bit. Oddly enough, somebody asked me recently if I would have done something differently in hindsight. Hindsight is a good learning tool but can be a horrible source of regret. I suggested I might have done "X'. I was asked why? I responded out loud with my thinking aid; the first time that happened, and I said, “Let’s think this through.” We did.

I had developed and relied on this thinking tool; “Let’s think this through” thousands of times in my head as an introduction to deductive reasoning in formulating an argument, but I had never used it out loud in a sentence. That is my quirk. I have others, but that is my big one. It triggers my process. Without it, my thoughts just get jumbled. That could be dementia, but I am holding out for lack of process.

“Let’s think this through” is designed to focus on anticipation. You start at one point and think out the next, and the next, and the next. You will hit them all. What will happen if or when "A" happens? Does "B" follow, or does it just jump to "C"?

When you put together your argument, anticipate two things; 1) what will Johnny Doe argue, and 2) what will the Judge likely do or ask of me. Anticipation. Or “let’s think this through”.

There are going to be different parts to your presentation. You will have opening remarks and then you will have a chance to respond to the opposition. Of course, you will have to answer the Court’s questions. The Judge should not be cruel or mean. A good Judge shouldn’t be nasty in a civil case. It is more common to get an unpleasant Judge in a criminal case. Questions are good, though. They signal which way he or she is leaning and gives you a chance to reinforce or to alter the Judge’s thinking.

In any event, it would be unusual for you to be in front of the Judge for more than an hour. Oftentimes it is much less.

We are going to talk about research in an upcoming segment of this book, but for now, as a general overview, it is always a good idea to attack the opposition's positions in your presentation. Think of it as having two approaches to your argument; one, get your arguments out, and two, tell the Judge why the opposition's position is wrong. In the law, we have all kinds of sayings. We like sayings. Maybe because we talk a lot. Boy, do we have sayings. Here is one that is particularly true in legal argument:

If the facts are on your side, argue the facts.

If the law is on your side, argue the law.

If both the law and facts are on your side, argue both.

If neither the law nor the facts are on your side, punt!

If asked about my presence by a colleague while waiting in Court and I respond by saying “I am punting!”,…enough said.

The point is that you must present your case as a strong one regardless of your weaknesses. I cannot tell you how many times I have won the day because applying the law to my set of facts was so excessive and unfair that it didn’t come anywhere near justice. Even the most hardened Judge will look for a fair result. We all need to sleep.

I cannot give you examples of what I mean when I say all of this to you. My examples would be taken out of the cases I have had or have been a part of and it would come too close to violating attorney-client privilege, but we will expand on these principles further into this book. You won’t be in the dark. Promise.

[1] Johnny Doe is fictitious. Just trying to use my “imagination”. How human of me.