What to Do when a Judge Makes a MistakeAuthor(s): James B. ZagelSource: Litigation, Vol. 27, No. 1, TRIAL (Fall 2000), pp. 3-4, 56-58Published by: American Bar AssociationStable URL: http://www.jstor.org/stable/29760172 .

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From the Bench

What to Do when a Judge

Makes a Mistake

The last thing I want to do is to write about how to persuade a judge that he has made a mistake.

First, my obligation to my union, the International Fraternal Association and

Loyal League of Black-Robed Legal Experts (INFALLIBLE) AFL-CIO, requires me to state that judicial mis? takes are extremely uncommon. In past years, I would not have been able to con? cede the existence of any mistakes, but our internal discipline has broken down since we spun ourselves off from the older, more established union of court? house cafeteria cashiers, steam-table attendants, and newsstand clerks.

Second, most how-to articles are writ? ten on the assumption that, if you follow the advice, you can expect to reach the

promised goal, like getting computer generated records into evidence. There are some bad how-to articles?the sort that tell you how to devastate the plaintiff on cross-examination?that make

promises they cannot keep. Articles about getting a judge to correct a mistake

generally fall into the less-than-good cat?

egory because the answer to the question "How do I get the judge to change her mind?" is, often enough, "You don't." So, my subject is not how to turn the

judge around. My subject is what to do when the judge makes a mistake.

I do not address here the related issue of stopping a judge from making the same mistake over and over. If the

by James B. Zagel Judge for the

Northern District of Illinois

judge's error, for example, is one of

admitting or excluding a certain type of evidence, and there is more than one such piece of evidence, the lawyer will have a chance to recast her arguments, find new precedents, and change the

mind of the judge without ever actually having to tell him that he made a mis? take in the prior ruling. I also do not address the tactical merits of trying to

persuade a judge that an error has been made, not for the purpose of correcting the error but with the hope that the judge will make it up to you sometime in the future. I deal, rather, with whether or how to ask the judge to correct a mistake that she has made. Maxims for practicing law are dis?

tinctly different from physical objects; more than one maxim may occupy the same space at the same time. So there are several different things that simulta?

neously hold the place of the most

important things for the lawyer to know. The maxim for today is know the judge.

Some judges never want to be told

they have made a mistake, and they will

punish those who say that they have erred. Such judges aim at lawyers and hit the client. When dealing with a judge who resents being told he has made a

mistake, the lawyer has no choice but to live with the error and hope that the cir? cumstances of the case and client will

eventually permit the mistake to be

appealed. A corollary to this axiom is that a

lawyer appearing before such a judge must be quite careful to have made a

good appealable record before the judge makes a ruling. This requires research into what needs to be done to preserve the issue. Some pre-trial rulings have to be brought up again at trial. You might think that you need no research into what will suffice to preserve the issue. Think again, and do not just try to safe?

guard your record by raising your claims

every time you appear. It may destroy your standing with the judge and dam?

age your client. Do what is necessary to

preserve the argument for appeal, but not one thing more. Knowing in advance that you are dealing with a touchy judge, you should make sure the factual basis for your position and all the arguments for your position are in the record before the judge rules. Were I to pick the most common trial

lawyer failing that vitiates an appeal, it is the failure of proof or offer of proof to establish a fact upon which a legal argu? ment depends. Lawyers think that, by saying something is true, they have cre? ated sufficient support in the record that it is true. A lawyer lost a good argument in my court because he failed to file a

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document that would have been evi? dence of a knowing waiver of lien.

Opposing counsel argued that any waiver of lien would be invalid. The

lawyer contending that a waiver occurred must have wrongly believed that opposing counsel was conceding that there was a waiver of lien. I never saw the document (which, I later learned, did exist), and, because I never saw the document, the court of appeals could not see it either.

You may think you can always sal?

vage a failure of proof if you say some?

thing like, "Your honor, we have this brief motion for reconsideration, which we expect you will deny in light of your decision, but we just wanted to make our position clear for the record." If you

believe that this is a safe tactic to use with even the most difficult judge, you are wrong. The kind of judge who can? not conceive of his own ability to err is also the kind of judge who may regard any post-ruling motion as an under? handed attempt to alter the record. Indeed, even the most mild-mannered and humble judge will know that motions for reconsideration are belated

attempts to add or improve arguments that should have been made in the first

place and are now waived.

On the other end of the spectrum, there also are judges, still few in number, who are all too ready to admit they have made a mistake. I once practiced before a state court judge (now deceased) whose habits led lawyers to believe that, on any fairly debatable issue, it was best to lose the

first time the matter was argued. This

judge always would be willing to take a second look, and the judge usually changed the decision. A third bite at the

apple seldom worked because even this

judge understood how awkward it would be to change back. When a judge like this makes a mistake, the lawyer need not hesitate to file a motion to reconsider. (I use motion to reconsider as a generic term for all procedures, where they exist, by which a lawyer may try again with the same court.) No special requirements exist; the lawyer can just file a new brief with the benefit of added insight into how the judge approached the issue.

With this judge, the problem was not to figure out what to do when he made a

mistake. Rather, the problem was what to

do when he got it right and, presumably, ruled in your favor. Now, you had to

worry about the judge's well known ten?

dency to make 180-degree turns. But this

judge (the only one of his sort I ever

knew) lived in terror of the court of review, and the only way to keep the

judge on course was to argue credibly that a change meant certain reversal. We

always took that approach when arguing against reconsideration before this judge.

There is a profound reluctance to undo what has been done in cases-at law. In Gerald Gunther's biography of Learned Hand, it is said that, on appeal of an admiralty decision, Judge Hand established, by use of tide tables and other materials, that the trial judge had found an impossibility to be a material fact. Nonetheless the judgment was

affirmed. Gunther G: Learned Hand: The Man and the Judge. Alfred A.

Knopf, Inc., 1994. An ordinary judge, like me, is willing

to consider that a mistake may have been made but presumes that this is

probably not the case. The reasonable

judge understands that she presides over a forum for dispute resolution and that there is great (but not complete) truth to the maxim that it is more important that cases be decided than that they be decided rightly. Indeed, given human limitations, the only thing we can be sure of is that cases are decided; we can never be sure that the decision was

right. Lawyers and judges act on the

premise that everyone should do their best, reach a decision, and move on from there. This means that the judge is not particularly eager to reconsider any? thing once it has been decided?yes, it

might have been wrong, but it may not serve any useful social purpose to go backwards and do it all over again.

The reluctance to reconsider also stems from the view of many judges who look at their civil dockets and entertain doubts about the social utility of many of the cases before them. I have talked to lots of law clerks, my own and those who work for other

judges. One thing that surprises them all is their eventual realization that

very large numbers of the cases that are

brought should never have been

brought, and that a fairly large number of cases that are brought should never have been defended. There are too

many easy cases?cases in which a reasonable judge knows it is very diffi? cult to make a mistake.

It also is true that, as a trial judge, you know there is always another place for the lawyer to turn eventually if you have erred and the error was significant. An

appeals court can set it right, and this

(believe it or not) is a consolation to some trial judges and a reason not to reconsider. A lawyer, however, is likely to find less consolation in the prospect of appeal. A lot of damage can be done to a client before things get straightened out on appeal, and some of that damage may never be undone.

Finally, some motions for reconsider? ation are simply filed to let the lawyer blow off steam (or, if you want to be

cynical, to build up fees). These some? times can be fun to read. I have heard

more than one judge of a reviewing (Please turn to page 56)

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it be that Wyatt was a bit readier to

begin firing that he admitted or recalled? Perhaps the Cowboys were not really reaching for their pistols after all, as evidenced by the fact that Wyatt apparently had plenty of time to pull his six-shooter out of his pocket after he saw them move their hands. In either case, there is a feasible implication that

Wyatt acted recklessly, shooting with? out thinking. Importantly, Judge Spicer could have come to that conclusion without assuming that Wyatt lied on the witness stand.

Trial lawyers understand how diffi? cult it is to recreate the past even a few months or years following the events themselves. After nearly 120 years, it seems impossible to determine with exact certainty what happened in Tomb? stone that October afternoon. What does seem clear, however, is that the

prosecution gambled on its theory choice?and lost. ID

Spontaneity at Trial

(Continued from page 18) estate matter, the closing of a case sometimes means pulling an all-nighter. Our colleague worked his way through draft after hand-written draft of his clos?

ing argument. With each version came a fresh cup of strong black coffee. His

sleepless night gave way to a dawn of new hope that there would be a dramatic turn. He got one: In the courtroom, only

minutes after launching into his sum?

mation, he began to feel vertiginous. Seconds later, he lost consciousness, falling face forward. The argument he

hoped would floor the jury floored him instead.

Paramedics arrived, the trial

adjourned, and the comatose counsel was spirited to a nearby hospital. Once there, he was poked and prodded for two days. After a battery of tests, a

benign diagnosis was proffered: a vaso motor reaction, induced by sleep depri? vation and too much caffeine. Some doctors call it the circuit breaker. The court was willing to grant a mistrial in order to let the ailing lawyer recuperate. But the very obsessive-compulsive

mentality that caused our colleague to blow his fuse also prevented him from

accepting the judge's invitation and

requesting a mistrial. Back among the conscious, he imme?

diately began to think about his return to the courtroom and what he might say to the jurors. Caring most about her hus? band's health, our colleague's ordinar?

ily solicitous spouse stepped in and

imposed her own version of injunctive relief: no more work on the closing argument. He would have to go with what he had.

The following morning, he was at his wit's end, unable to fashion an appro? priate segue to the resumption of his summation. The jury also seemed unsure of how it should act. As he rose to resume his closing, an improvisation suddenly came to him. Thus, he began

with "As I was saying before I was so

rudely interrupted . . ." The pall lifted, and he coasted to the finish line. With one cliche, gravity gave way to levity.

No paean to the unplanned may be told responsibly without the punctua? tion of a final caveat: Some people are immune to spontaneity. Occasionally, these people are judges. For example, one of the authors of this article (the gray-haired one who gets to put his name first in the byline) participated in a trial almost a quarter-century ago. It was a strange case?a claim for wrong? ful burial, in which our colleague repre? sented a cemetery association. Together with a funeral home, the cemetery was

alleged to have inflicted emotional dis? tress on the plaintiffs, the surviving rel? atives of the deceased, by preparing the

wrong gravesite.

Recess

Ironically, a key defense witness (the president of the cemetery association) was stricken by a heart attack in the courtroom shortly after finishing his

testimony. As horrified jurors looked on, he collapsed and died within min? utes. The trial judge was widely known for his stern, no-nonsense demeanor. If

the milk of human kindness flowed at all in his veins, it was skim. Finally call?

ing a recess, he sent the jurors out and advised the attorneys that he would entertain motions for a mistrial. Because the almost week-long trial was

nearing its end, both sides decided to take their chances. The judge sum?

moned the jurors back to the box.

Shortly after they filed back into the

courtroom, their eyes transfixed on the

spot where the witness died. The judge turned to counsel and said, in a voice

entirely free of inflection, "Call your next witness." Thus, our final lesson on

spontaneity: Be as prepared to stick to the script as you are to pitch it out the window. 10

From the

Bench (Continued from page 4)

court say that petitions for rehearing serve the principal purpose of letting the

lawyer tell the judges what he or she

really thinks of them. By contrast, a trial

judge does not see too many insulting motions for reconsideration. The trial

judge usually encounters motions in the

preliminary stages of the case, and, since the judge will be seeing the

lawyers again and soon, lawyers rarely show anger or contempt. (Of course, I

may have missed truly subtle insults in the motions I have to read.)

In the end, the only mistakes that are often corrected are those that are clear and can be shown to be erroneous in

ways that are simple, short, and direct. This is why mistakes of law are so diffi? cult to correct. If you find some subtle

legal error in a judge's reasoning, often it is because the judge has failed to understand your briefs in the first place, and asking a judge to read another long brief (perhaps a better written rehash of what you wrote the first time) is likely to be unsuccessful. You are clearly ask?

ing the judge to redo the whole process. Do not expect a warm reception.

Indeed, the one approach you gener? ally do not want to use is a blunderbuss

reargument of all the points that have been decided by the judge. Even if you disagree with everything the judge had to say, you want to confine yourself to one or, at the most, two legal conclu?

sions and only those that really put a dent in your case. A way of communi?

cating this restraint to the trial judge is to list in a footnote those parts of the

opinion that you may disagree with but that you do not challenge in a motion for reconsideration. This is useful

strategy because it underscores the sin

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cerity of your pleading. Think of it as

saying to the judge, "Okay, your Honor, I give up on all these other

points, but you really ought to look at this one issue again." What has a chance of working? One

technique is to quote from the judge's opinion and to follow it with a quote from a controlling precedent that says something quite the opposite. This does not happen very often, and, even if it does, it may not matter. A lawyer

may well find a mistake in an opinion, but the judge will say to himself, "Well I was wrong about that but it is really dicta. It doesn't make any difference to the final result." For this approach to work, the mistake must be crucial to the result. And even this may not be

enough because the judge may think, "This should have been clear to me before. You must not have really argued this. So your point is waived." Of course, you could point out that

6

your briefs were perfectly clear and that only a judicial thimble-brain would have missed the point, but most

practicing lawyers would not widely endorse this approach.

To close the loop effectively, you must contend that the error was due to

your opponent's misstated argument, (i.e., "Opposing counsel omitted any

mention that all of his cases have been modified or ignored for the last 10

years.")- Then the judge can conclude that there was an error, it does matter, and it was not entirely his fault. This is

key. You say, "It is not your fault, your Honor. It is my opponent's fault."

Errors of fact should be corrected in much the same way. Suppose a judge throws out a state law claim against a

municipality because the plaintiff did not file an administrative charge in a

timely fashion, a state law requirement. She finds, based on the municipality's brief, that the plaintiff went to the claims office with his tale of woe and was notified that he had to fill out a cer? tain form within 20 days. Plaintiff waited 180 days. (This is an actual case, artfully disguised because I felt like art?

fully disguising it.) The plaintiff moves for reconsidera?

tion with a two-page speaking motion, most of which contains excerpts from

previous papers in the case. Roughly stated, the motion looks like this:

The case was dismissed because

my client waited 180 days to fill out the form when he was told, in

writing, to do it in 20 days [photo? copy of six lines of transcript where the judge said this]. The

municipality represented to you

that this is what happened, [photo? copy of nine lines of brief making the argument and referencing the written notice to plaintiff]. There is no written notice that plaintiff must file in 20-days [photocopy of a form letter from the city setting out various conditions for filing a claim and checking certain boxes to show which conditions are

applicable to plaintiff's case; counsel adds a red arrow pointing to the box next to the 20-day time limit requirement, which is un?

checked]. This motion is very likely to succeed

because it takes the judge very little time to read. It does not require the

judge to look at the briefs again or even his opinion. It shows quite clearly that the judge relied upon a mistaken factual

premise, and it puts the blame for this

squarely on the opposing side. Errors of fact are more often cor?

rected than errors of law because they almost always result from a misleading act of opposing counsel, arising from either carelessness or intention. Where valid motions to correct errors of fact fail, they do so because the judge believes the fact is immaterial. Counsel

may think it is simply enough to point out some clear error of fact. This is not so. Counsel must remind the court why a particular fact was important to the decision. And this must be done in as few words as possible. If one cannot

quickly show that a fact is crucial, it is

usually because it is not crucial. It is also true that the factual error

must be easily and quickly demon? strated. Having heard the matter once, a

judge is unlikely to be willing to con? sider each step of a nine-element proof even if it is as certain as deriving C(p)(CCppp) from certain premises in the propositional calculus. Prior AN:

Formal Logic. Oxford: 1963. This

unwillingness to reconsider is even more pronounced when proof of error

depends upon a series of inferences that

may be well justified but not required. One final word of caution to the

drafter of any motion that seeks to per? suade a judge to reverse herself. It is not

enough that the motion be brief and

compelling, even though this in itself is hard to achieve. It also is important that the motion to reconsider demonstrate, by virtue of its tone and content, the sin?

cerity with which it is made. If the legal system has an institutional interest in

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deciding cases and being done with them (the judge has many other cases that he has not decided at all), then it seems reasonable that a judge would not

appreciate being asked to decide the same question twice simply because a

lawyer or a client decided, "What the hell, you never know when lightning might strike."

A lawyer's credibility with the judge is

always a thing of value, and one of the easiest ways to lose it is by an inept attempt to persuade a judge to change his mind. It is not just another motion. 10

Opening Statement

(Continued from page 2)

Words that lack precise definition include, as illustrations, regular, com?

mon, average, frequent, normal, and

substantial. These words have pecu? liarly and significantly different mean?

ings varying with the speaker, the lis? tener, and the context. It is worthwhile for a witness to seek definition of what is normal, frequent, or substantial before

answering an open-ended question. ?

Recognize and resist lawyers' styles. Trial lawyers have as many styles as there are methods of communication. The most common styles are the carrot or the stick. The carrot style of examina? tion is to be magnanimous and attempt to create a relaxed, casual atmosphere of

professional friends simply having a conversation. The alternative style is the stick: the aggressive, sometimes hostile and contentious style that tries to intim? idate witnesses. You should prepare your

witness for these tactics. You might want to replicate your opposing counsel's

style during role-play to drive the point home.

? Do not offer or agree to provide information. Witnesses generally exhi? bit two elements of human nature. First, people want to be liked. Second, people enjoy being helpful. The Rules of Civil Procedure, not principles of charity, govern the production of documents and disclosure of information. Many of us have experienced common questions

about the times and dates of events and the follow-up questions whether the witness keeps a calendar, diary, or other method of recordation. A witness should be advised that, if asked for doc? uments or other data, she need not read?

ily offer to produce the information. Rather, she may simply tell the exam? iner that she has no objection to produc? ing the information, but production is

up to her lawyer. ? Do not over-advocate. As dis?

cussed earlier, truth and sincerity win cases. The witness who over-advocates

her position loses credibility. Audiences like to be persuaded rather than told

what to believe. Make your witness a

story and fact-teller. Lawyers are the advocates.

? Do not play lawyer. How many of us have heard a witness refuse to answer on grounds that the answer would be

hearsay or try to dodge a question, ask?

ing rhetorically how could it be rele? vant? Witnesses must leave the rules of evidence to the judges and the lawyers. Remind and prepare a witness to answer

questions directly and not play lawyer. ? Disclose and neutralize physical

and emotional impediments. I will never forget my expert witness who, more than 22 years ago during the criti? cal portion of his testimony, repeatedly fell asleep. This was my introduction to

narcolepsy. It was also my lesson to dis? cuss during witness preparation any impediments to truth telling. This is a sensitive and fragile subject. I suggest in the interview process asking ques? tions such as, "Is there anything about

you I have not learned that might assist in your preparation?" or "Is there any? thing opposing counsel would want to know that might be an advantage to him or her that you should tell me?" or "What about you should I know that

might somehow affect your testimony?" None of these questions guarantee learning a physical or emotional imped? iment to truth telling, but these ques? tions are certainly a reminder that you should try to obtain this information.

? Promptly correct mistakes. Wit?

nesses are often nervous when testify? ing. This is natural and expected. Correct

mistakes, inadvertent or other-wise, promptly. Provide a witness with the

support during witness preparation to know that she can tell you with

impunity of a mistake. Then, assist the witness to provide corrections on the record.

? Do not accept superficial assump? tions. Despite changes in the Rules of Evidence, trial lawyers continue to ask

experts hypothetical questions. Please work with your expert witness during witness preparation to reject superficial assumptions that could lead to mislead?

ing answers to hypothetical questions. ? Be responsive to questions from

the court. As you know, the rules of evidence, both state and federal, gener? ally permit the court to ask questions of witnesses. See, e.g., Federal Rule of Evidence 614. Work with your trial wit? ness to ensure that the witness is fully responsive to the court. Remind her that, if a court is sufficiently interested in testimony, the witness likely has done a good job communicating issues sig? nificant to the adjudication of the merits of the dispute.

? Use your own vocabulary. This rule is in partnership with the impor? tance of sincerity. In witness prepara? tion, try to avoid putting lawyers' words or technical words in the mouth of a witness. Let the witness utilize her own

vocabulary, and it will ease the witness

through the communication process. ? Leave when excused. Many of us

have experienced the nightmare in which the examining lawyer concludes the deposition, then suddenly remem? bers an important question or area and seeks politely to reopen the deposition to ask a few more questions. Teach

your witness that, when the examina? tion is over, she may professionally excuse herself from the room and wait for you outside.

Finally, while capable advocates

may differ on this, it has been my expe? rience that few witnesses learn as well

by listening as they do by participating in role-playing. Therefore, if time and

money permit, I urge that you put your witness through some dry runs?con? duct a couple of one- or two-hour ses?

sions?letting your witness experience how it feels to testify in deposition or at trial. Your objective, of course, should not be to change the testimony of the witness. Rather, you should endeavor to make the testimony of the witness clear, concise, responsive to the rules of procedure and evidence, and, thus, powerful.

Our British friends truly miss out on one of the real joys of lawyering. Wit? ness preparation, guided by our ethical

obligations, permits us to learn much about human character, culture, and

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