Litigation Strategy New Lawyers Trial Strategy

Make Your Argument, But Don’t Argue with the Judge

ThinkstockPhotos-57277848An an attorney and an officer of the court, you sometimes have competing duties: to represent your clients zealously and to maintain respect for the court. When it comes to a disagreeable court ruling, you’ll need to make your strongest argument while remaining respectful to the judge. The key is to argue without arguing.

Every attorney is presumed to know that arguing with a judge or disputing the judge’s ruling in front of the jury is usually improper. See Justice Kane’s concurring opinion in In re Grossman (1972) 24 CA3d 624, 640.

For evidentiary objections generally, most courts require that argument on objections beyond a few statements be heard outside the jurors’ hearing at the sidebar or, when there will be extended discussion, in chambers. See, e.g., Los Angeles Ct R 3.123–3.125. To be heard on such a matter, you can simply ask: “Your honor, may we approach the bench?” To protect the record, have a court reporter present to record the arguments, whether they’re made at the sidebar or in chambers. If the judge denies your request, ask for a hearing on the matter during the recess.

But sometimes the jury will be there and you’ll need ways to argue against a ruling without being disrespectful. In protecting your client’s interests, you have the right to press legitimate argument and to protest an erroneous ruling. In re Hallinan (1969) 71 C2d 1179, 1183.

In Gallagher v Municipal Court (1948) 31 C2d 784, 795, the California Supreme Court says that an attorney addressing the court may do the following:

  • Combat and strongly contest adverse views expressed by the judge during argument;
  • Object and protest against any course that the judge may take that the attorney thinks is irregular or detrimental to the client’s interest; and
  • Caution the jurors against the judge’s interfering with their function (or with the attorney when addressing the jurors), or against any strong view adverse to the client expressed by the judge on the facts of the case before a jury verdict is reached.

Once the court has ruled on the matter, you’ll need to respectfully yield to the ruling. If it’s against you, definitely don’t resist it or insult the judge; rather, preserve the point (on the record) for appeal. You can respectfully request that the court reconsider its adverse rulings, but repeated efforts to introduce evidence that the judge ruled inadmissible will likely get you nowhere, except maybe a punishment for contempt.

And definitely don’t disregard a court ruling or advise your client to do so. You can, however, take appropriate steps in good faith to test the validity of the ruling. Cal Rules of Prof Cond 3–210. If the circumstances warrant it, and you’re confronted with what appears to be an invalid court ruling, you can consider requesting the court (out of the jurors’ presence and on the record) to stay the ruling, and then test it by an appropriate writ.

For more tips on handling yourself in court, turn to CEB’s California Trial Practice: Civil Procedure During Trial, chap 16. And check out CEB’s program Courtroom Conduct: Do’s and Don’ts, and Common Sense for practical, expert advice before your next court appearance.

Other CEBblog™ posts you may find useful:

© The Regents of the University of California, 2015. Unauthorized use and/or duplication of this material without express and written permission from this blog’s author and/or owner is strictly prohibited.

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