A few years ago, I tried a medical malpractice case in a courthouse where I did not know many of the judges. The case involved a delay in diagnosing a spinal abscess, which doomed the patient, my client, to lifelong paraplegia and unrelenting pain. Because she died before the trial, she could not testify about salient conversations with the defendant doctors or explain her actions (notably, smoking and putting on weight), which would be called into question by three capable defense attorneys.
When challenges arose during jury selection that we couldn’t resolve, we were sent to a judge. In his chambers, he listened attentively to both sides. He knew my adversaries, who regularly practiced in this courthouse, but showed no favor. I was pleased when we were later assigned to him for trial.
My opposing counsel was also pleased. I quickly learned that our judge was a former prosecutor who had a reputation as an extremely conservative jurist.
Predictably, the trial rapidly devolved from a barrage of defense counsel objections during my opening to a continuous chorus of objections during my direct and cross-examinations. All were sustained. It was difficult to stay on track, much less maintain momentum and focus. I made a record for any potential appeal, but that was cold comfort.
The judge was clearly critical of my case. I needed to gauge what effect this was having on the jury and how I should respond.
In the end, I chose to make my record as vigorously as possible, but I did not confront the judge directly. I knew that I couldn’t change him; I certainly couldn’t control him. The only thing I had control over in that courtroom was myself. I am not by nature the most vociferous trial attorney, but I am tenacious. I didn’t feel this was the time to change my stripes and become strident with the judge and my adversaries.