Judges yell. It’s a fact of life. And if you’re an attorney who has spent a large portion of your career in the courtroom, you’ve probably had a judge yell at you.
Yesterday (or for future readers, November 10, 2021), this axiom played out in two high-profile trials in the public eye: the trial of Kyle Rittenhouse in Kenosha, Wis., for the shooting of three men during the Jacob Blake protests on August 25, 2020 and the trial of three men in the shooting of Ahmaud Arbery on February 23, 2020.
Now my point here is not to get into the substantive elements of what happened on Wednesday or analyze whether or not the judges acted or ruled appropriately. Odds are law journals and SSRN’s Legal Scholarship Network and anyone on social media who have ever seen an episode of Law & Order will cover that area shortly.
What is fair to say, in light of this, is there’s a good chance a judge will one day yell at you.
Catching up on the conversation
Casey Mattox, a First Amendment attorney at the Charles Koch Institute, asked #LawTwitter to reshare a tweet asking “if you’re a lawyer who has ever had a judge yell at you.” And it got some interesting responses, including this one from Judge Emily Miskel, a judge in Texas’ 470th District Court:
That was followed by her Texan colleague, Judge Melissa Bellan, who responded, “What if you’re a judge who’s yelled at another judge?”
The lesson is that, apparently, judges will yell at anyone at any time, so get ready for it.
Other tales of judges-gone-loud included:
- Has any litigator NOT had a judge yell at them?
- Many times. Many different judges. It is part of being a trial lawyer.
- Sometimes you have to tick off the judge to do your job correctly.
- I’ve seen a judge literally throw a book at counsel (not me luckily).
- Not a lawyer, but I had a judge yell at me for reading a book in the gallery.
Others noted their fathers and grandfathers had been judges, so a yelling judge sometimes brings their work voice home with them. There was even the requisite entry suitable for Lady Lawyer Diaries, where an attorney recounted, “I once had a judge kick me out of court for wearing peep-toe heels. With a suit. In 2014.”
Another recounted being yelled at for using a cell phone in court—and to be fair, Kenosha County Circuit Court Judge Bruce Schroeder, who is presiding over the Rittenhouse trial, had his cell phone ring in court on Wednesday.
The point is: If you’re going to be a litigator—or possibly on the bench yourself—expect to be yelled at by a judge at some point in your career, whether you deserve it or not.
Watch it in action
For different reasons, on Wednesday, both Judge Schroeder and Chatham County Superior Court Judge Timothy R. Walmsley, judge in the Arbery case, asked the jury to leave the courtroom to speak with an attorney in court.
Walmsley sustained two straight objections to a line of questioning from defense attorney Jason Sheffield. Sheffield then appeared frustrated in court, shrugged off the judge, and said something out that wasn’t picked up by the court microphones. It was then Walmsley paused proceedings to talk to Sheffield:
According to Atlanta station 11 Alive, here is what the judge had to say:
“You can agree or disagree with this court, that is your prerogative, but to act in the way that you just did in front of this panel—disrespect—I don’t care whether you like my rulings or not, or you like me or not, but in this court, the Superior Court, it is axiomatic that counsel show at least respect for what the court is doing and what you just did shows a lack of respect for what the court is trying to do here, which is create an environment which is fair to all parties,” he said.
“I would suggest that you take a moment to think about that. I’m gonna step off the bench because I found that—I’ll just call it rude. I have tolerated a number of things in the courtroom, including flip charts, writing in the middle of the—the jury gets distracted when you were doing the flip charts here, jumping up, moving the boards. I would suggest that you temper some of that very quickly, because it will not be tolerated in this court, and I will leave it at that,” the judge said.
“I do not need an explanation, I do not need an apology, none of that, but I would suggest that we take a moment and think about the way that you’re reacting to the court’s instructions and rulings.”
In the Rittenhouse trial, it was the prosecution in the spotlight as Judge Schroeder paused the trial following a line of questioning from Assistant District Attorney Thomas Binger.
Judge Schroeder and Binger were at odds over interpretations of the judge’s pretrial rulings over admittable evidence and what was fair game to refer to in court. The defense called for mistrial with prejudice.
According to Associated Press reporting, Judge Schroeder said to Binger, “You knew very well that attorneys can’t go into these types of areas when the judge has already ruled without asking outside the presence of the jury to do so. So don’t give me that.” Schroeder said, yelling, “Don’t get brazen with me!” when Binger attempted to push back.
What you can do in this situation
Again, the point of this post is not to second-guess the decisions of either judge or the actions of Stafford or Binger in the courtroom. Pending appeal, the judge is always right. It’s a very public chance to see on camera what you might expect to experience in a courtroom as a litigator.
And the important thing to remember when a benchslap is headed in your direction is that you better be prepared and have a plan.
Ellen Henak, a partner at Henak Law S.C., just up I-95 from Kenosha in Milwaukee, had a few tips for attorneys in the crosshairs of a cross judge:
- Take a deep breath and let it out slowly.
- Remember it’s not about whether the judge likes you.
- Take a minute to think whether you can appease the judge or whether your record requires you to hold your ground.
- If you do not need to hold your ground, consider apologizing.
- If you need to hold your ground, consciously slow your speech and deepen your tone a little because both will make you sound calmer. Start with “Your Honor.” Ritual is your friend here.
- Be honest. start with something such as “the law requires that…”
- If the judge keeps yelling and you are sure you need to hold your ground, document the judge’s behavior softly, “Your Honor, I am having trouble thinking while you are yelling” or “Your loud tones are making it hard for me to think. Can we take a quick break?” (If you can get a break, it gives you both time to cool down.)
- If all else fails, remind yourself that as long as he is not talking contempt, you will survive and it will be over shortly.
- And if he starts making contempt noises, tell him you mean no disrespect and ask to consult with another attorney.
She clarified that “Judges are not always he. Bullies are not always he. But in my experience, they usually were ‘he.’ “
There will be times a case can test the limits of civility. The American jurisprudence system is adversarial, and occasionally that carries over to the interactions of judges and attorneys in the courtroom and not just the lawyers either side. If you’re prepared, you’ll be able to weather it when you’re in the same position.
If you have more tips for litigators on what to do in these situations, we’d love to hear about them in the comments.