It seems to be a staple of Hollywood court dramas that when the defense attorney is arguing a point of law with the judge, the lawyer will bring up a ruling that the judge made earlier by saying something like, “But Your Honor, in Case #XYZyou yourself said blah blah blah…”
For example, in Reversal of Fortune, the Rhode Island appelate judge says, “There is no precedent for introducing new evidence on appeal!” To which Dershowitz (sp?) responds, “Well, actually there is one, and you wrote it…” (The judge looks pissed, but he concedes the point.) And in The People vs. Larry Flynt (I guess you can see what kind of movie session I had last night, lol) Flynt’s attorney tells Justice Souter, “As you yourself said, taste is impossible to litigate…”
So my questions are: (1) How often does this really happen? And (2) is it really a wise strategy? Wouldn’t the uppity lawyer risk alienating the judge by making him look like an ass in his own court…or would the judge be likely to think, “Ah, that Harvard boy really did his homework, give him a Brownie Point!”
I used this tactic once in a trial, very much on the spur of the moment.
The case involved a lot of documents. To get documents into the record, you have to have a witness identify the document and explain its provenance. With some of the documents, we asked the witness to explain the background in some detail, as an aid to interpret it. The trial judge didn’t seem to like the delays that caused, and on more than one occasion told us to move on in the examination of the witness, “because the document speaks for itself.”
After all the evidence was in and we were making our oral submissions, it became clear that one document in particular was going to be crucial. I was arguing for a particular interpretation of it. The judge didn’t seem to like that interpretation, and started musing on whether there was an evidential foundation for my position, apart from the document itself, because we hadn’t called any of the authors of the document.
I replied, “Well, m’lord, as you said several times earlier in the trial, the document speaks for itself.”
There was a considerable pause while the judge looked over his reading glasses at me. Finally he said drily, “Quite so, Mr. Piper,” and I moved on in my argument.
Co-counsel told me afterwards they were wondering if the judge was mulling contempt.
I’m not a judge or lawyer or anything, really, but I’d think the reaction would be the same as with anyone else who you pointed out was mistaken. For example, some professors get very defensive and flustered when you point out a board error and one wonders if it might affect their grades. Other profs are clearly pleased that their student is paying attention and draw attention to the error so the rest of the class can correct their notes. Of course, there’s an infinite shades of gray in between and I’d imagine the same is for judges.
Certainly, your attitude and the manner in which you speak to the authority figure can have consequences as well.
Firstly, it very rarely happens in my experience because judges typically know their own decisions pretty damn well. And if they don’t know their own decision, it’s probably because it’s not that recent, and so it’s not particularly embarrassing to remind a judge of it. If he’s been on the bench for a couple of decades, he’s not going to be upset at being reminded that in 1982 he said such and such.
Secondly, no it is not a bad strategy. Judges expect to be reminded of precedent. Counsel’s job is to do so. It would be a particularly silly judge who actually got upset because counsel remind them of a relevant precedent, just because the judge should have remembered it.
Thirdly, counsel are very good at being ultra polite and deferential while telling judges they are wrong. And as long as counsel follow the rules of courtroom politeness while contradicting the judge, it would be considered very very churlish for a judge to get annoyed about it.
I don’t know if the same unwritten rules apply in the US, but in UK/Aust. practice, if you a contradicting a judge it works like this:
"Well actually, your honour, with respect I think you will find that… = Slight mistake by his honour.
“Well you see, your honour, with the greatest respect I think I should point out that …” = Mistake by his honour.
“Well aah, perhaps, your honour, with the very utmost respect I am obliged to have to mention that…” = Complete and utter ballsup by his honour.
Well generally no. I mean, there is obviously the odd bad apple out there. But bear in mind that judges know that they are on record, and their previous decision is on record, and they are supposed to know their old decisions, and they are subject to appeal if they make a bad decision. All this adds up to the judge knowing that if they are mistaken, they are mistaken and refusing to accept that is usually just going to make them look a goose. So they would generally just say a (mental) “touche” and move on.
Ya, that’s what I was trying to say. For every jerk who holds a grudge for someone pointing out their own error, there’s a hundred who don’t care and/or appreciate the notice. Like the teachers…most aren’t going to dock points for public errors indicated.
On a related note, I have been in pretrial conferences in chambers where the judge made it absolutely clear that everything said was off the record and if any party tried to throw his words back at him in court, they would regret it.
As a political science student I took a class in Constitutional Law. There, we learned that the relevant phrase was “Your Honor, I have not made myself clear” Translation: “Your Honor, you don’t understand…”
