By Don Keenan
Those famous words, “You gotta know when to hold ‘em,” were sung by a good ol’ southern Bubba named Kenny Rogers who is also a longtime Atlanta resident. Before we go much further, let me introduce you to another southern axiom: "You can't cure stupid.”
Let me address the latter first.
We knew in the beginning of Reptile© there would be those who, no matter how much persuasion or clear black letter law you use, there’d always be certain folks who just won’t hear it. They'll cover their ears and hang their head to block out even the remote possibility of hearing a word or two.
Now there are some fellow plaintiff’s lawyers who fall into this category. Those include the naysayers and the Chicken Littles (where, of course, the Black Hats are in a vacuum of intellectual absence), but I want to address this article from the category of judges.
Judges don't like anything different from they've done for forever. Anything new is toxic and invokes fear; but, we've seen that once most of the judges are educated on the black letter law their fear transpires into comfort and then the Reptile© comes screaming into the case, unrestricted and unrequited. However, we must realize there are certain judges who, no matter what you do or say, are not going to accept one thimble full of it.
Let me tell you about a couple recent occurrences first, and then I’ll give you some potential alternatives that we have available.
There was a case I co-counseled on, that was worked up by a Reptile© lawyer who did one of the best, most detailed case workups I’ve had the privilege of working on. It was a masterful job. Our venue was a very conservative area with an even more conservative judge who didn't want to rule on anything until right before trial (“rule” being an understatement because he slashed and burned our case).
Can't use rules, can't use safety, can't use conscience of the community, can't even use foreseeability (even though we called it foreseeability and I believe he understood what it was). It wasn't that toxic word spreading the tentacles – but yet, no foreseeability. This stupid judge proceeded to rule on non‑Reptile© issues, such as gutting our standard of care with witnesses. He even gutted the other similar instances.
While we had consistently gotten unanimous verdicts in focus groups (where we had the full case available), once we were gutted we did two focus groups right before trial – one in Atlanta and one in the case venue. Both groups were defense verdicts. The judge had neutered the case down to an event case – and not much of an event case at that. [As a side note, we stated that medical bills were not going to be claimed, but the judge was one of the only judges in America who said the medical bills had “total relevance to the case” and the jury must receive them.]
While my co-counsel did a great job arguing the Reptile© motions, the judge literally put his hands over his ears, hung his head and said, “I don't want to hear anymore.” As childish as that is, it points to the absurdity and mean-spiritedness of the judge.
So what did we do when we knew we were marching into Death Valley, and a certain death therein?
At the mediation, the defendant had offered not what we believed to be a reasonable amount, but it wasn't insulting, either. The Black Hat (not being stupid) realized the likelihood of reversal and wanted to continue to negotiate even in the face of 100 percent of the rulings in his favor.
We were looking at an almost certain two-year turnaround in the appellate court. Then we had to factor in that, with a reversal, we would only come back to the same judge who could decide to gut us in new ways. The clients were good and decent people who simply wanted the matter to conclude. They wanted closure and they wanted it sooner rather than later. It was about that time the famous words of Kenny Rogers rang in my ear as we concluded this was the “time to fold ‘em.” I’m not proud about it, nor happy about it, but it is what it is.
Here’s another instance of a stupid judge. There was an Oklahoma trial lawyer who was Reptile© ready and the judge waited until the end of the first day of jury selection to declare a mistrial over some nuance concerning the specificity of pleading certain counts of negligence. I'm sure if it weren't that issue it would have been some other obscure issue. The judge “graciously” permitted the trial to continue the next day with a new panel. Nobel got a new jury, which was an even better one then the day before, because he was far more proficient at the voir dire. But the judge called another mistrial for the case during opening statement.
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Now I'm not just taking Nobel's word for it; the courtroom had a dozen or more Reptile© lawyers present – all of whom reported there was not one single valid reason for either of the mistrials, except the judge just didn't want to try the case.
Then Nobel faced a sanctions motion by the Black Hats. While a good many lawyers would simply have “cut tail and run” (back to doing real estate closings or collecting JC Penny's accounts), this was the time you learned if a lawyer is a woodpecker or not. If a lawyer has the courage of his convictions – and I have no doubt Nobel is coming back.
Why am I telling you these stories?
Well, it’s because you're eventually going to be there yourself. You'll have a great case and you’ll be fully prepared and you will have a mountain of ignorance sitting on that bench screwing you at every turn. Thank goodness our careers are not defined by one trial! But make no mistake about it, my friends, it can happen and it will. And there is little you can do about it.
Now, when I say there is little you can do about it, let’s talk about what you can do:
- Get a local.
Although you're licensed in the state where the case is pending, consider retaining local counsel to get you some inside leverage. There is one state where I've had an eight-figure verdict and two seven-figure verdicts (all in no offer cases), where my local counsel was without question the most prominent trial lawyer in the state; president of the state’s Bar Association, president of the national trial lawyers association, when the U.S. Government Justice Department sued their legislature the legislature retained my friend to represent them. He represented the judges when they need a pay raise. My three cases were some of the easiest I have ever tried out of state. I not only had the wind at my back I had a tornado and it worked. Judges are people and somewhere they've had a former law partner, a friend, somebody that you can get to maybe help you out on your case.
- Interlocutory Appeal.
Most judges who are trying to screw you know that time is usually very important to the plaintiff’s lawyer. As such, many judges don’t think you’ll take an interlocutory appeal (assuming you have legal grounds to do it). Obviously, if the case is riddled with errors prior to trial then the case is ripe for an interlocutory. If possible, let the judge know in advance before you file it because on one occasion the judge reconsidered and we had a somewhat decent relationship from that point on.
- Wear the Judge Down.
In most states, you have an unrestricted ability to make an offer of proof without restraint on any issues you want to make a record. Don’t hesitate to use this procedure.On several occasions I have drawn the offer of proof out in time, moving slowly, talking slowly; judges hate the offer of proof procedure because they know you’re speaking and presenting to the record and not the judge. They know you’re setting them up and it’s not a good feeling for them. Plus, since most judges have “time-itis” (that is, everything has to be done in three minutes or less), the offer of proof is sheer death for them. I use it as often as I can one to make a record which is my right and second to wear the judge down, let him know the consequence of his bad ruling.
One time, I made four offers of proof during the morning session. Each was nearly a half-hour in length and the judge understood the afternoon was going to go the same way if he continued to cut me off on my witness examination. I never thought it possible but in the afternoon, the judge actually left me alone. I guess you could say I wore him out. Can’t guarantee this will work for you but if you’re in a bad situation already, you might as well try it.
- Motion to Recuse.
Probably just to make a record, but if you have reason other than the rulings, then go for it. As with some of the above, even if you’re denied the filling has a way of backing down the judge.
BOTTOM LINE: Sooner or later, you’ll be between a rock and a hard place. Know when to hold ‘em and know when to fold ‘em. If you’ve got a judge hell bent on screwing you, you don’t have any great options but you do have some options so try them and see if it helps. It certainly can’t hurt your case at that point.