Podcast - Respect in the Courtroom

Dan Small: Welcome to another episode of "The Trial Lawyer's Handbook." In this episode we will continue to discuss the corruption case of U.S. v. Rendle, based in part of my ABA book "Lessons Learned from a Life on Trial."

In federal criminal cases, judges are drawn for the case at random. For the Rendle case, we drew Judge Joseph Tauro (drawing a "T," as it’s called), which was a cause for distress to many in the U.S. Attorney's Office in Boston at the time. Judge Tauro was smart and experienced but widely viewed as extraordinarily pro-defense. Indeed, it felt sometimes like I had seen him threaten to throw more government agents and prosecutors in jail, than defendants. He also didn't like the law of conspiracy (he was pretty up front about that), and was not a big believer in prosecuting white collar crime. For many in the office, to draw a "T" on a case was a scary and depressing event.

And yet I liked him. I respected him and had had success in front of him, including in the very kinds of conspiracy and white collar criminal cases he was viewed as opposing. It got to the point where if other Assistant U.S. Attorneys in the office drew a "T," some of them would come to me for advice to learn my "secret" or whatever it was for surviving in his courtroom.

The "secret" was respect. Mutual respect. It sounds simple, but of course, it's not. With every judge — any judge — it's a key challenge. The first piece was preparation. Judge Tauro so dominated his courtroom and so favored the defense that many prosecutors wondered what's the point of spending all those hours preparing, he's just going to do whatever he wanted. Well, sometimes that was true, but the reality was, in that courtroom, you had to be doubly prepared. Judge Tauro had to understand that you knew the case and the law. If he was too quick to jump to conclusions, you could see through it and respond, and your response would be thoughtful and well-supported, not based on emotion or bias — or, even worse, on fear.

This leads to the second piece: judgment. Too often, prosecutors would allow their negative impressions of Judge Tauro to control their actions. They would gravitate to one or the other extreme: either fighting him on everything or just rolling over and giving in on everything.

But neither extreme works, because neither extreme shows respect, and neither extreme deserves respect. You can't try to fight every battle to the bitter end. You're an advocate, and you have to take positions you believe in, but you also have to pick your battles. If everything is important, nothing is important. Judge Tauro — and most judges — respected a strongly held position, but less so someone who held every position equally strongly.

The other extreme was no better. If you roll over and give up too easily, why are you making the argument in the first place? If you don't think it's important, why are you wasting the judge's time? Rolling over isn't respecting the judge or respecting yourself.

I would always make sure that I always came to Judge Tauro's court prepared on the facts and the law and also prepared to pick my battles. To prioritize. Over time he grew to respect that, and I grew to respect him for it. Sometimes he would agree with me, sometimes he would rule against me and sometimes we would go at it. At one motion hearing in the Rendle case — alas, I have long since forgotten what the issue was — there was a motion that I felt strongly about and so did he...but we both felt strongly in the opposite directions.

So we went at it. Vociferously. Voices raised. The full courtroom of onlookers — mostly folks involved in the case, and well as lawyers waiting for their other cases to be called — was shocked, convinced that at any moment, Judge Tauro was going to have the U.S. Marshals handcuff me and send me off to jail for contempt. No prosecutor argued with Judge Tauro like that and survived. Had I gone mad? But we built a relationship of respect, and on some level, he enjoyed the battle. Finally, before things went off the rails, he stopped me and said loudly: "Look, I understand your position, I know you hold it in good faith, but I disagree with it! Move on!" So I did. One battle lost but respect gained on both sides. Pick your battles.

Respect, by the way, applies to all players in the litigation environment. It amazes me when I see lawyers sucking up to judges but then ignoring — or worse, being rude to — all the other players: clerks, court reporters, court officers, etc. How much extra effort does it really take to be nice to everyone in the building? That effort can be well worth it in a hundred ways, small and large. One trial lawyer friend had a sign on his office wall that said, "Judges can hurt you. Clerks can kill you!" Truer words were never spoken. Everyone in court has a job to do. Show respect all around. It's the right thing to do, and it might just save you from disaster one day.

In front of a jury, respect is even more important. Remember the jury is always watching you. They want to know your relationships with everyone. The judge, the court staff, opposing counsel, clients, colleagues. They want to know if you respect them and, in turn, whether they respect you. They're judging you through how you behave with others. And through you, they are judging your case. As the late great Otis Redding sang, "Respect, respect, respect. Respect is what I need."