Talk to the judge, not to opposing counsel

Early in my legal career I used to habitually drive the Honorable Wayne Morris Creech nuts over what I perceived as minor offenses.  Saying “yeah” rather than “yes” would lead to admonishment.  Perhaps nothing drove him crazier than when I would directly address opposing counsel in responding to counsel’s arguments.  I was never quite sure what I was doing wrong but every time I used the second person pronoun in argument, Judge Creech would stop and chastise me.  At one point he became so frustrated he threatened to hold me in contempt.

Finally I had an “aha” moment.  What Judge Creech wanted me to do was substitute the third person pronoun for the second person pronoun.  A simple change from “you said” to “he said” satisfied him.  Earlier this week my new mentee argued her first motion in front of Judge Creech.  During the post mortem, she noted that she was admonished for directly addressing opposing counsel.  I could sympathize.

When responding to arguments, it’s natural to address the arguer directly–that is, to use the second person pronoun.  While most judges discourage such argument, Judge Creech is a stickler for banishing it.  There’s much wisdom to his policy.  First, it encourages civility.  Since court is an emotionally volatile setting, any argument that reflects poorly on opposing counsel tends to be amplified.  By directing one’s arguments away from opposing counsel, and directly to the judge, the argument becomes less of a personal attack.  Further, since the goal of argument in court is to persuade the judge, making one’s arguments in the third person forces one to make the argument to the judge rather than to opposing counsel.  It’s simply a better form of advocacy.

In hindsight, I can see that what appeared to be picayune fussing was actually Judge Creech’s attempts to make me a better gentleman and a better advocate.  It’s great to know he continues this efforts with the next generation of lawyers.  If only all judges considered it part of their mission to turn new attorneys into better attorneys.

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  • Van

    Nicely put Greg, maybe I should replace Robert with you as my legal guru.

  • Lawyers should never address each other directly in the courtroom. What starts as an innocent exchange can end as a heated and disruptive argument. I have seen an unprofessional exchange promted by the innocent question, “Have you seen plaintiff’s exhibit three?”

    I hope that you will recruit Judge Creech for one of your semniars. If he agrees, I would like for him to address one of my pet peeves, two lawyers standing at the same time in the courtroom. When one lawyer objects, the other should sit. If the other lawyer stands when I am making an argument, I immediately sit. When the other lawyer sits, I resume my argument. Watch a few trials and you will notice that the lawyer who stands longer usually gets the worse result.

  • Aleta C

    Hi — I have been searching everywhere I can find to learn the protocol regarding opposing counsel speaking to the plaintiff or defendant in a private conversation.

    I have a business partner, we were in negotiations with our franchisor, my partner spoke to the franchisor’s attorney secretly, then did not speak truthfully to our attorney and made an agreement with the franchisor and delivered some documents we had originally signed but were withholding for delivery for modification on a segment. She sent our attorney a written message stating she merely wanted to review the documents and was not going to deliver them to the franchise, but then did.

    What are my options here?

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