By Dr. Ken Broda-Bahm:
Our trial system is set up so your adversary is on the other side and your judge is neutral. The courtroom layout illustrates that relationship, and trial procedure supports it. But at times, advocates can find themselves treating the judge as the adversary. Few examples rise to the level of presumptive GOP nominee Donald Trump's repeated attacks against Gonzalo Curiel, the federal judge in two cases involving the business mogul's for-profit enterprise known as "Trump University." Trump has said that Judge Curiel has an "inherent conflict of interest" because Trump is "building a wall" along the Southern border, and the judge is "a Mexican" (actually born in Indiana). There is good reason to believe that Trump's comments have more to do with politics (or maybe psychology) than with law, because his legal team has made no motion for the judge to recuse himself. That kind of criticism is, thankfully and wisely, pretty rare. The more common scenario occurs when the judge just seems to be leaning toward the other side's arguments and you are trying to talk the judge out of it. In oral argument, for example, the judge may start firing arguments back at you, either in order to test your position as a devil's advocate, or because she or he genuinely disagrees with you. In those settings, you argue back.
Unlike Trump's case, those arguments are nearly always polite and deferential to the judge. Whether "your honor" seems to be on your side or not, a tone of respect is needed. At the same time, even a polite battle with the judge can feel a little futile or counterproductive. In fact, framing it as a battle between you and the judge puts you at a disadvantage because the judge has more power than you do. In addition, there is the danger that the judge might be setting aside a neutral and evenhanded mindset in favor of an advocate's mindset. So what do you do when the judge starts to argue back at you? In this post, I will share a simple approach for reframing the judge's comments so it remains clear that you are arguing with the other side, not with the judge.