In one of the many classic scenes from “My Cousin Vinny,” the hapless defense attorney played by Joe Pesci, delivers his brief but to-the-point opening statement (“Yeah, everything that guy just said is bullshit… Thank you.”), only to have the judge respond, “The entire opening statement, with the exception of ‘thank you,’ will be stricken from the record.” As funny as that is, something a bit similar actually happened the other day. As reported in the ABA Journal, Judge Ana Viscomi of New Brunswick, New Jersey struck the defense attorney’s entire closing argument in one of Johnson & Johnson’s talcum powder mesothelioma cases. Noting that the closing argument was “replete with conduct this court has already warned you about,” the judge said it would be impossible to strike only the inappropriate comments while leaving in the appropriate comments.
So the jury was left to decide a case without an ‘on-the-record’ closing from the defense. Ultimately, it may not have been clear to the jury what the practical effect of “striking” the closing argument actually is. They already knew that the closing wasn’t evidence and, in any case, they couldn’t simply erase the argument from their mind. But the real question is the effect it had on the Defense’s credibility to be so thoroughly spanked by the judge that not a single comment from closing, not even the “thank you” that Vinny got in, is considered valid enough to be part of the record. In the end, the stricken closing may or may not have had an effect on the verdict (delivered yesterday, it was in the Plaintiffs’ favor to the tune of $37.3 million). But as a rule, it doesn’t help to be spanked. Jurors tend to hold the judge in high regard, and if the judge thinks that someone is abusing the rules enough that it warrants a rebuke, then that party loses credibility. And that’s true even if jurors don’t understand the reason or the exact nature of the rebuke. In this post, I’ll consider the ways to avoid or to minimize this kind of spanking from your judge.
1. Know Your Judge
An important part of the pretrial phase is the process of learning over time what your judge does and does not allow. If you’ve had a number of hearings or conferences in your lead up to trial, you should have a pretty good idea about where those preferences lie. Failing that, you can also learn about your judge’s habits and rules by talking with those who have tried cases in front of that judge, or increasingly, by making use of accessible analytic data about that judge. Ultimately, you shouldn’t be surprised that you’ve crossed a line because you should know where the lines are.
2. Assess in Advance
Reasonable people can and do disagree about what is allowable and what isn’t at various stages of trial. Some judges, for example, have a pretty open view of what each side can use as demonstrative exhibits in opening statement, while other judges apply a strict interpretation of what is too “argumentative.” To avoid the distraction and embarrassment of losing a favorite tool or tactic in the midst of trial, give notice and make motions in advance if you can.
3. Fight Outside the Jury’s View
It can be fun and dramatic to surprise the other side by bringing something up in open court. However, if you are surprising the judge as well, you could be setting the stage for a public rebuke from the bench. If you think it could be controversial, then generally, it is best to bring it up with the judge and opposing counsel before the jury is brought into the room.
4. When Spanked, Don’t Add to It
Ultimately, you can’t predict everything, and it remains possible that despite your best efforts, you will tick off the judge and lose some face in front of a jury. When that happens, the trick is to move on and not add to the appearance of defeat through either a verbal or a nonverbal response. Jurors don’t always understand the nuance of what is happening at the bench, so just act like it is a formality, roll with it, and don’t let them see you sweat. The idea is that nothing the judge throws at you should cause an apparent loss in confidence.
5. But Judges, Be Professional
My own bias is that judges should not be in the business of publicly punishing the parties during trial. Enforce the rules, sure, but never in a way that intentionally telegraphs winners and losers to the jury. After all, the jury should be deciding based on the evidence and the law, and not based on clues as to who the judge favors. If one side is trying the judge’s patience, ideally the jury should not know which one.