See - When is it wise to argue with a judge? Only sometimes
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This brings us to a few pertinent questions. The first has an easy answer. When should you fight with the judge over a nonissue? Almost never. However, there may be times when you have to argue with the judge about a pressing issue. I asked several lawyers: “When does something matter enough to argue with the judge about it?” Their responses were interesting.• Ohio civil lawyer: “Generally, you aren’t going to change the judge’s mind. So unless the client needs a show, preserve the record and move on.”
• Indiana criminal defense lawyer: “A big part of litigation is making the record. If it’s not in writing and/or not said, you might be hosed. So even if the judge is clearly not going your way, you request time to make a record for appeal. Most judges have no problem with that. But I don’t hesitate to argue with a judge frequently. My client is paying me to advocate for them, so I do it. [Judges] rarely take it personally. Luckily, I rarely have to do it because judges like my personable demeanor. I think those subtle nuances that comprise someone’s charisma can take you surprisingly far. But If I know a client’s about to get hosed, like on a suppression issue, I’ll argue a point to preserve the issue. Only time you back off is if a) judge has a fragile ego or is otherwise easily set off, and b) your client has something immediately at stake at that moment. This way you can always assert strategy if the client is ever trying to make an ineffective assistance of counsel claim against you.”
• Canadian civil lawyer: “It’s almost never worth arguing directly with a judge. If they think the fact or rule of law is X, you’re never going to do particularly well just saying that it’s not X. That said, some judges leap quite quickly to their conclusions without spending a lot of time thinking about how they got there. Arguing respectfully and somewhat indirectly with them can be helpful. In one of my first appearances at a trial, I had a judge make a ridiculous math error right near the beginning of my submissions; he yelled at me about how my math was wrong. I got on with my submissions on the other uncontroversial points, and at the end (once he’d had time to cool down, because he was famously hot-tempered), went back to the math. I took him through the calculation (which was really just a sum of four items, but yeah, I was yelled at for daring to disagree with him), and tried to treat it as a way of helping him get to the right reasons. That time, it worked. Other times in front of that judge haven’t always been so successful, but respectfully disagreeing with a judge’s conclusion and explaining why is the only sort of arguing with a judge that I’ve ever seen succeed.”
• Indiana in-house counsel: “I would imagine in a civil context never worth it to ‘argue’ in person. Respectfully disagree and present a counterpoint, yes, but not become argumentative. There’s almost always an opportunity to express your disagreement in a later motion.”
• Canadian government lawyer: “When the judge invites your [arguments]. Beyond that, it’s like arguing with a cop by the side of the road.”
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