Judges
| Author | John Hollander |
| Pages | 21-52 |
judges
21
chapter two
Judges
(and victim) Georges
Danton is quoted as exhorting his followers, “Il faut de
l’audace, encore de l’audace, toujours de l’audace” (“You
must show boldness, more boldness, always boldness”).
Ascribed to Napoleon years later, these words became his
central battleeld principle. George Patton ably followed
Napoleon more than a century later, adopting the prin-
ciple as his own.
Lawyers, especially young ones, take on this principle
as their guiding light when they enter the battleeld of
the courtroom. It leads them to excessive language and
behaviour with witnesses and opposing counsel. Re-
garding this, here is my advice in a word: don’t. Judges
detest such excess. How can you trust someone for whom
all conduct is dressed up with superlatives such as “most,”
“best,” and “worst”?
In theory, all that opposing counsel must do is es-
tablish that there is some less extreme example, and this
excessive exhortation fails. In practise, all that opposing
counsel must do is present a face of moderation and good
judgment. e judge will lean as far as is practical in that
The Civil CourTroom
22
direction. is is simply an application of the principle
that one can rely upon people who demonstrate good
judgment. Excessive language is the enemy, and often
demonstrates the opposite of good judgment.
Whereas judges seek the truth, lawyers seek what is in
the interest of their clients. is dierence, however, does
not prevent a judge’s reliance upon the lawyer for guid-
ance. To an extent that novice lawyers often fail to under-
stand, judges rely upon counsel to guide them along the
correct path.
• What are the issues?
• What must the judge nd as fact in order to apply
the relevant law?
• What is the relevant law?
• Which witnesses make more or less sense than others?
• Which exhibits are central to the case?
ese are all questions with which the judge must
grapple. A thoroughly prepared lawyer can direct the
judge along the correct path to a solution. As between two
thoroughly prepared lawyers, which will the judge prefer?
is section of the book accents how Canadian judg-
es reect Canada’s national character of moderation and
collegiality. At the bar, we call each other “friend.” We
are introduced at conferences for our charitable work and
experience, rather than for the big dollar cases we have
won. Excessive behaviour has little place in our national
character. Once the lawyer recognizes that “thoughtful” is
not the same as “the greatest possible,” the lawyer is well
on the way to demonstrating the professionalism neces-
sary for the judge to follow that lawyer’s lead.
judges
23
Openings
, judges did not want to hear de-
tailed opening arguments (or detailed closing arguments,
either). In the s, the odds were substantial that the
judge had more experience in any given area of law than
did the litigator. Where judges were comfortable with
the issues, they could read a well-written trial record and
learn enough to get on with the case.
In the present day, however, judges are very interested
to hear counsel set out what the case will involve. At the
end, they want to know the signicance of what they
have heard. is is true for several reasons:
• e judge may not be familiar with the area of law
or practice involved.
• Cases that used to take a day or two now routinely
take weeks.
• It is commonplace for exhibit briefs to include
hundreds of documentary exhibits.
• Cases routinely involve several issues with great
complexity.
Opening arguments
is an opportunity for the law-
yer to introduce the case to the judge. At the same time,
the lawyer can start to demonstrate the professionalism
necessary to stack the odds in favour of the lawyer’s client.
Remember and take to heart the adage, “You only have
one opportunity to make a rst impression.”
Another point that may be added to the four bullets
above is that the judge may not be familiar with the trial
To continue reading
Request your trial