The key concept in interacting with a judge in a Mock Trial context is: show them the appropriate respect. That sounds simple enough, but it gets complicated quickly by two factors. First, most people are unfamiliar with interacting with an office that demands this high a level of respect. Second, you’re interacting with judges in the adversarial context of a trial, and they absolutely cannot be treated as your adversary.
The judge is in charge of the courtroom, and in a sense in charge of the law of the courtroom. Yes, the Rules of Evidence hold sway everywhere- but those rules mean what the judge says they mean. That means they’re the final legal authority in the room. You don’t get to contradict them, or argue with them after they’ve made their ruling. That doesn’t have anything to do with the ego of the particular person sitting on the bench that day. It’s about respect for the office. If according that level of respect to an office is difficult to understand or remember, consider the realities of a judge’s job: they’re routinely moderating fights about deeply important and emotional issues, like property and liberty. They have to command the kind of respect that gets a bunch of pissed-off people to sit down and shut up on command. Treat them with that level of respect. Alternatively, treat them like they could throw you in jail if they wanted to.
The tricky thing about not being allowed to correct judges is that sometimes judges are wrong. Sometimes wrong in minor ways, but sometimes quite badly wrong. They might forget- or invent- entire rules, for instance. And you can’t tell them they’re wrong. You can do something subtly different, however: guide them to realizing they’re wrong. This requires careful presentation. Usually the best way to present it is by acting as if your goal is to clarify your argument. If, for instance, your judge has just made it plain that they do not know “admission by a party opponent” is a hearsay exemption, you’re best served by saying something like “Your Honor, I’m referring specifically to Rule 801(d)2,” which is the rule for admission by a party opponent. That response doesn’t reference what the judge just said. You’re not correcting them: you’re clarifying what you’re trying to do in your objection. Often you should directly quote the rule. Ideally you should be doing that straight from your copy of the Rules of Evidence- this is one of the situations in which doing so is not only acceptable, it is ideal. The judge has, at this point, certain ideas about the rules of evidence. You’re providing contradictory information. That means you’re not going to be believed. You need to be very clearly appealing to a higher authority. This also helps in framing things non-confrontationally: you’re not asserting that the judge is wrong and you’re right, you’re just reading what it says in this rule. Notice that this means you must have the higher authority (the Rules of Evidence) clearly on your side. If a judge doesn’t share your understanding of the Speculation objection, you’re out of luck, because the Rules never define speculation. You have to discover and use the judge’s definition of Speculation as rapidly as possible.
The length at which I’ve discussed guiding judges around their mistakes is probably deceiving. Most of the time, there’s no way to do that diplomatically. As I said a moment ago, you really only have that option when the Rules of Evidence are clearly on your side. If the judge has made a clear-cut mistake about the text of a rule, you have a chance at fixing that- and you should absolutely take it. If it’s a mistake about how to understand a rule, no matter how egregious, you’re out of luck. You need to adapt your argument to accommodate the judge’s understanding of the Rules.
It’s worth noting that almost as important as never telling a judge they’re wrong is never outright telling a judge they’re right. Now, obviously if they ask anything along the lines of “Am I correct in understanding...?” you can say “yes, Your Honor.” You could also say “no, Your Honor;” they’ve elected to submit this particular understanding of theirs to your judgment and dancing around a “no” by euphemism winds up looking condescending. In general, though, you want to avoid spontaneously saying things like “that’s correct, Your Honor.” Those statements frame the judge as needing your affirmation, and make it sound like you think you know the law better than they do, both of which are false. Put another way, saying “that’s correct” makes it sound like you have the right to say “that’s incorrect,” and you don’t. Similarly, don’t say “I agree” about an assertion of the judge’s. “I agree” statements have all the irrelevance of “I think/I believe” statements (see Objection Basics: Part IV) while implying that you have some right to disagree with the judge’s understanding of the law.
No comments:
Post a Comment