What to Do When the Judge is Smarter than your Opposing Counsel

 Lawyers have war stories.  This past week has been chocked full of them for me.  A problem we lawyers sometime encounter is when the Judge is considerably brighter than the opposing counsel.  Unfortunately, or fortunately, depending upon which side you are on, Judges have the right to ask questions.  A colleague of mind recently told me of an instance where he had a jury trial and the judge kept interrupting him and asking questions of the witnesses.  My colleague said he told the judge that if the court was going to “try his case”, he should at least “try it to win.”  I think he said he was held in contempt on that occasion.  But I know the feeling.  During oral arguments on motions, all kinds of things can come up.  The worst is when the Judge thinks of something completely overlooked by your adversary which the Judge intends upon using to rule against you.  You can argue that two against one is no fair, but unless you do something, chances are, you are going to lose.  When this situation presents itself, I will request time to provide a supplemental briefing on the issue raised by the Court.  This, essentially gives you time to regroup.  If there is no “law” that will help the case, then of course you let the Judge know that in your briefing.  You are going to lose anyway and at least you can say you have tried your best.   But trying to convince a Judge that he or she is wrong when an issue was raised by the Court on its own during oral argument can be risky.  When the Judge has a well written memorandum of law in front of his or her with cases that support the argument you are making, you have a much greater chance of getting the court to reconsider its opinion.  And you are also creating a record for an appeal should one be warranted.  When these things happen, I think that maybe next time I will be the one standing quietly while the Judge thinks of an argument I omitted and uses that as a basis to rule against the other side.  You know, law of averages kind of thing.  All I can say is “ouch” when I am on the receiving end.
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