Meaningful signals on the bench


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(Picture from Getty)

A long time ago, I was hearing a jury case. I put forward a jury instruction and supported me very actively. The judge said: “I think you are legally correct, so I tend to give this instruction. Are you sure you want it?”

I am a young man. Of course I want guidance! This will help me win the case: “Yes, your honor. Please give instructions.” I am very happy.

The judge is a big man. He thought differently at the time: “My opinion is that the jury may make a verdict in favor of this young person. But the jury’s instructions are fertile ground for appeals. Regarding the jury’s improper instructions, I hope this case Or the last thing the young man’s client raised was to overturn the case on appeal. I will ask the young man if he really wants this instruction.”

(Then, after my enthusiastic answer, I said to myself: “He doesn’t even understand what I’m asking. He will learn. After all, experience is important.”

Even long ago, a person I knew from high school was hearing his first case-a bench trial in federal court on behalf of the federal government. He and I may have left law school for two years. I trot to the courthouse on a Friday to watch my friend’s activities, and we went out for dinner that night.

My partner was very excited: “The judge really trusted me! The other side opposed several items we included in the deposit name. I explained why the objection was wrong. The judge ruled in my favor! The testimony was only transcribed last night Of course, the judge has not read the transcript. I have established such a high credibility that the judge is in my favor without looking at the testimony. This is a good sign!”

Of course, the judge’s thoughts were the opposite: “I have decided to bring this case against the federal government. [That is: My buddy was going to lose.] Since I know who I will lose in the end, my task now is to minimize the risk of losing the appeal. Therefore, from now until the end of the case, I will make a ruling on every objection raised by the government. Then, when I finally decide to file a lawsuit against the government, the government will be able to handle fewer appeals. “

My partner continued to win all opposition in the trial, believing that he is an excellent and reliable lawyer. The government eventually lost the case. And the government has few issues that can be appealed.

After all, experience is important.

I recalled these incidents in the bench trial that represented the company I work for now. In the later stage of the trial, the judge made rulings on our company on the issue of evidence several times throughout the day. The senior lawyer representing our company in this case is very pleased. He reported in the “call of the trial team” that night: “Things are looking for us. Whenever I object, the judge will rule on me.”

I remember my ignorance 30 years ago: “Young lawyers may be surprised because you are happy to lose all the objections you raised. For the people on the phone, why don’t you explain?”

he made it.

We raised no objections, but won the trial.

After all, experience is important.


mark Herman He worked as a partner in a leading international law firm for 17 years and is now the deputy general counsel of a large international company.He is the author Kulmarton Practice Law Guide with Litigation strategy for drug and device product liabilityÿ (Affiliate link).You can contact him by email inhouse@abovethelaw.com.


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