Since family court proceedings are bench trials a family law attorney’s task is to convince a judge, not a jury. Judges who feel that the attorney is belaboring an issue are known to cut off an attorney’s questioning of a witness by telling the attorney some variation on “move on counsel; you’ve made your point.” If a judge is going to cut off our cross examinations because we’ve made our point, I believe it is our clients’ right to have that point confirmed in any subsequent ruling. While I keep my “back talk” to judges to a minimum, this is one area in which I have decided my back talk is going to increase.
The judge is powerful. Not only does the judge decide the case but he or she can have the attorney incarcerated if that judge finds the attorney is in “contempt of court.” The threat of finding the attorney in contempt is made much less frequently than it was when I first started practicing seventeen years ago. In my early years I would make sure my wife had $100.00 in cash any time I was going to appear before a rural family court judge because that was his standard fine to secure release from jail if he held an attorney in contempt for “back talk.” While I’m less worried about being found in contempt for arguing with a judge than I used to be (the 2003 addition of “civility” to the oath attorneys and judges are required to take has changed judges’ behavior more than it has attorneys’ because some judges were perpetually officious prior to this civility requirement), I still don’t want to risk a judge ruling against my client’s position or failing to award my client fees because that judge feels I treated him or her rudely. Thus, I try to keep the “back talk” to a minimum. This however, differentiates me from probably 90+% of my colleagues, who would never back talk a family court judge. The only thing I typically share with the less-than-10% of my colleagues who will sometimes back talk a judge is that I’m not afraid to appeal when I believe the judge was mistaken, so I don’t tend to treat a family court judge’s decision as the “final word.”
My changed view on back talking a judge who tells me to move on stems from a trial I currently have up on appeal. In that case, the opposing party’s credibility regarding an agreement my client alleged the parties had–an agreement the opposing party denied–was critical to the issue the judge was being asked to decide. While that judge could still have ruled against my client if she found the opposing party wasn’t credible on this issue, she would have had an exceedingly difficult time doing so. While questioning this witness the following occurred:
THE COURT: Mr. Forman, how many times do I have to say let’s move on, sir?
MR. FORMAN: Okay. I’ll move on, Your Honor.
BY MR. FORMAN: Q You didn’t pick up that typo when you verified—
OPPOSING COUNSEL: Your Honor, that’s been asked answered in more than one form—
MR. FORMAN: Okay. I’m trying to move on, but I’m also trying to preserve—
THE COURT: It’s preserved for appeal.
MR. FORMAN: Okay. Okay.
THE COURT: I promise you. It’s in the record at least twice.
MR. FORMAN: Okay. I just—
THE COURT: Let’s move on.
MR. FORMAN: Well, also, on the issue of credibility, though, I think it is very important, I mean not just on typo.
THE COURT: You have made your point. Let’s move on.
When the judge finally issued her ruling, she ruled against my client on the primary issue without making any factual findings on the issue of the opposing party’s credibility. I moved for reconsideration and, as part of that motion for reconsideration, asked the judge to make an explicit finding that the opposing party was not credible on the issue I had been questioning her about when the above colloquy occurred. She refused this request. The matter is now up on appeal.
I am not sure how many times I have been limited in my cross examination of a witness because the judge indicates that I have “made my point” but I would suspect it happens at least once in every trial. It probably happens to just about any attorney who faces an evasive witness and who takes an aggressive approach to cross examination. Yet how often, when we move on after having been told we made our point, does the judge later rule against our client while failing to make the factual finding regarding the point the judge has promised that we made?
….So, in the future, before I move on because I’ve “made my point,” I will be asking the judges, “Can I assume that this court will be making a factual finding of …[whatever point I believe I have just made]?” If the judge says yes, I will move on; if the judge says no, I will suggest that until the judge is willing to say yes I have not made my point and it is my right and my obligation to my client to continuing questioning the witness on that topic until I am done or until the judge will concede the factual finding I want made.
I am sure this will not endear me to the folks in the black robes. I am further going to make sure that my wife has cash on hand before every trial: what is the current bail amount for lawyer “back talk”? But if a judge is going to cut off our cross examinations because we’ve made our point, I believe it is our clients’ right to have that point confirmed in any subsequent ruling. Judges are being less than candid if they refuse to concede the factual point they claim we have made while telling us to move on because we made our point. And that, I contend, is more problematic than a little back talk.