There are many things that make a Judge cringe or feel frustration. But, there is one sure way to fire a Judge’s ire; to make them mad, really mad. By uttering just four little words to any Judge, Commissioner or even Judge Pro Tem you can be assured that you will be off-putting, irritating and completely DISRESPECTFUL!!!
All that an attorney or client needs to say is, “With All Due Respect!” to a send a Bench Officer reeling. Whether it is DUE or not, it is NEVER respectful. By taking a page out of the “My Cousin Vinnie” courtroom decorum playbook, an attorney challenging a Judge with these four words (the “Four Hated Words”) can ostracize their client. There are more effective ways to get the Court’s attention than to blatantly be rude, demeaning or unprofessional to the Court, especially if that Court is in session with a full audience.
Those Four Hated Words, “With All Due Respect!” are equivalent to verbally “mooning” the Court or using base sign language to call the Court out. That being said, part of advocacy is being able to put forth your client’s position with zeal.
An able attorney who finds the Court misinformed, uneducated as to a specific law or fact, or ruling in a manner that is contrary to reasoned principals of law has other tools to derail the Court’s Ruling in the nick of time. I assure you that starting any well-meaning, genuine or enthusiastic rebuttal or parry with the Court by using the Four Hated Words, “With All Due Respect” is like dropping a lead weight on your own, already offended big toe. IT WILL HURT YOU!!! Judges everywhere have a knee-jerk reaction to the Four Hated Words and none of those reactions are pleasant.
So how do you respectfully “beg to differ” without torpedoing your case to the bottom of the justice ocean? A few simple suggestions… One highly effective tool is to merely ask for a short break. “Your Honor before you rule may I have a short break to confer with opposing counsel…with co-counsel…my client…my office…?” This approach is a measured attempt to slow the process down so that you, as an able advocate, can better communicate that critical missing information to the Judge. Take a beat, slow it down. Get out of the joisting or debate and start anew with a less frenzied, heated presentation to the Court.
Another tool: When the Bench Officer is new to the assignment or new to the Bench, and the new Judge clearly does not know the law or recent case law affecting the outcome of your case, offer to brief the issue. “Your Honor, I respectfully (a correct usage of the word) request a short time in which to more fully brief this issue for the Court. I believe that a brief would more fully allow the Court to render a decision. I apologize for waiting until this appearance, but I ask that I be given a little time to brief this matter further.” You may also ask the Judge to receive a copy of a recent case for the Court’s review, right there on the spot. Sometimes, it is painfully clear that the Court has not read your pleadings. This can be frustrating and discouraging. But rather than put egg on the face of the Court, focus on making a clear record including a synopsis of the points and authorities you have discussed, referring to your filed motion or other paperwork.
Losing your cool (or your attorney losing her/his cool) with the Court doesn’t help your cause, even if the Court is completely dead wrong. Chances are, if that is the case (a Judge is dead wrong) you will win on appeal, but at what cost? Time and money. Don’t use the Four Hated Words ever! It is disrespectful and an affront to the Court. Instead be deferential, but make a record of your position. Grandstanding does little for your reputation or your client’s case. Instead, simply request to make a record or turn the phrase by saying, “Your Honor, I respectfully disagree…” and then in a professional, nonplussed manner interject your request whether it is for the Court to reconsider, to make the record clear, for a sidebar, to brief the issue, or to take a short break to regroup. All are acceptable actions based on your disagreement with what is going down in the courtroom. But at all costs, avoid the Four Hated Words – those four words, strung together as a barb, are meant to sting the Court. However, in that flash of swordplay it is you who may be the one who gets hurt.
