Former Florida Supreme Court Justice and Gunster attorney Ken Bell is regularly tapped by his colleagues for tips and pointers on arguing before a circuit judge, as well as counseling on courtroom strategy. During Bell’s twelve years on the circuit court bench, he developed these four pointers.
1. Remember that practicing law is a privilege. You are first and foremost an officer of the court. You advocate zealously, but you always do so as a privileged member of the Florida Bar, and never as a hired gun.
2. Always know your judge and his or her administrative practices, personality, and preferences. First, look online or ask for JA for guidelines. Second, ask seasoned attorneys. Third, observe one of his or her trials. And, if you want to go deeper and you can access them, talk to court reporters and the judge’s security officers. Look for how she wants you to refer to parties and witnesses, from where you are to address witness, etc.
3. Understand the judge’s task and burdens. The task of a judge is to do justice. This is done by applying the law to the facts. As for fact-finding, most people believe there are two sides to every story. A judge sees three sides:, the plaintiff’s side, and the defendant’s side, and the truth which is somewhere in between. It is the judge’s job to get as close to that truth as he or she can.
When it comes to applying the law to the finding of facts, you must provide the judge an honest and accurate statement of the law. If you do not, the judge learns he cannot trust you, and trust is essential to effective advocacy. Finally, the judge’s caseload requires more reading than you can ever imagine. So, draw your judge to your writing by being succinct, clear, and precise.
4. Maintain civility and professionalism with opposing counsel, opposing party, and court personnel. Adversarial proceedings are difficult; don’t make them harder by being discourteous.
Remember to address the judge not opposing counsel, do not interrupt the opponent’s argument, and do not assume you are entitled to a rebuttal. Always ask for permission to give one.
If you need any inducement to abide by these four foundational principles, remember that judges and their judicial assistants talk about lawyers as much as lawyers talk about judges. You will have a reputation, so make it the best you can.
Former Justice Ken Bell is a shareholder of Gunster and is a former Florida Supreme Court Justice, serving from 2002-2008. His practice is focused on civil appeals and trial support. Justice Bell currently co-chairs Gunster’s firm-wide appellate practice. Prior to serving on Florida’s highest court, he was as a circuit judge in Florida’s First Judicial Circuit.