plenary session the art of persuasion from the bench · the art of persuasion from the bench,...

CITY, FAMILY, AND JUVENILE JUDGES SEMINAR BACK TOGETHER AGAIN

January 11-12, 2018 · Windsor Court Hotel

Plenary Session THE ART OF PERSUASION FROM THE BENCH

Friday, January 12 · 9:00am-10:00am Professor Bobby Marzine Harges Loyola University New Orleans College of Law

The Art of Persuasion from the Bench, January 11-12, 2018 - Professor Bobby Harges

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Bobby Harges; [email protected] 1

The Art of Persuasion From the Bench

• CITY, FAMILY, AND JUVENILE JUDGES• BACK TOGETHER AGAIN

• 2018 Conference• January 11-12, 2018

Speaker – Professor Bobby HargesAdams and Reese Distinguished Professor of LawLoyola University New Orleans College of Law

http://www.law.loyno.edu504-861-5666

[email protected]

• Bobby Harges is the Adams & Reese Distinguished Professor of Law at Loyola University New Orleans College of Law. He received a B.S. degree from Mississippi State University and law degrees from the University of Mississippi School of Law and Harvard Law School.

• Mr. Harges has taught Insurance Law, Torts, Evidence, Mediation and Arbitration, Arbitration Advocacy, Sports Law, and Criminal Law and Procedure. He is licensed to practice law in Louisiana and Mississippi and has an active mediation and arbitration practice with MAPS in Mississippi and Louisiana.

• Since 1990, he has served as a special master, mediator, arbitrator, attorney chair in medical review panels, and as a complaint hearing officer for energy regulatory matters. He has written several books on Louisiana DWI Law, Evidence, Criminal Law and ADR.

How Some Judges Feel

• “I have reached a point in my life where everything annoys me. Precisely when this happened, I do not know. It seems to have occurred suddenly and it is particularly evident when I am sitting in Family Court where I am on the verge of becoming a judicial curmudgeon.”


• A judge’s view: things lawyers do that annoy judges; things they do that impress judges, http://www.oba.org/en/pdf/JudgesView.pdf

Scope of Presentation

• Tips for Judges on Getting to Yes.

• How to help litigants feel heard.

• How can judges before the trial at pretrial conferences help litigants get to yes.


• How can judges deal with difficult people?

• It is frustrating for judges to be trying cases that they think should not be tried.

• Judges often ask, Why am I trying this case? How could I have avoided trying this case?


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• How judges can use negotiating skills on the bench.

• Judges sometimes cut people off.

• People are really hurt.


• Judges have no more than 3 to 5 minutes per case.

• How can they effectively deal with litigants during this period of time.

• How can judges become effective judges when dealing with people?


• Judges in city, juvenile, and family courts are witnesses to a lot of whining from unhappy people and people who under a lot of stress.

• How should they deal with these people?

Louisiana Code of Judicial Conduct• CANON 3

• A Judge Shall Perform the Duties of Office Impartially and Diligently

Louisiana Code of Judicial Conduct• CANON 3

• A Judge Shall Perform the Duties of Office Impartially and Diligently

• A. Adjudicative Responsibilities.

• (2) A judge shall maintain order and decorum in judicial proceedings.

Louisiana Code of Judicial Conduct

• (3) A judge shall be patient, dignified, and courteous to litigants, jurors, witnesses, lawyers, and others with whom the judge

deals in an official capacity, and should require similar conduct of lawyers, and of staff, court officials, and others subject to the judge's direction and control.


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• A judge’s view: things lawyers do that annoy judges;

• Rolling eyes, dancing eyebrows and other mannerisms that show a lawyer’s or a party’s anger with a ruling of the judge

Don’t Do It!

• Chicago-area attorney Alison Motta and her family law firm have a take-no-prisoners motto when it comes to criminal defense.

• “I am tough.”

Tough Attorney

•

Professional Conduct?

• "When your enemy is weak expose their weakness," her website states.

• "When your enemy is strong delay the battle, and when your enemy is angry make them angrier because mistakes are sure to follow."


• Using profanity in front of the jury, scoffing at judicial rulings and otherwise disrupting the high-profile trial of a woman accused of weapons violations.


• Motta rolled her eyes and said,

• "F------ bull----" after U.S. District Judge Amy St. Eve overruled an objection.


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• Her attorney, James Doppke, said she "looks forward to moving past this unfortunate situation so that she can resume fighting for those accused of serious crimes in federal court.“


• "Ms. Motta sincerely regrets that she projected her frustration with the system in her demeanor in the way the judge described," the emailed statement read.

• Doppke said Motta made the profane comment under her breath, but sensitive courtroom microphones picked up the remark.

The Power of Apology

• Last month, Motta apologized for her behavior, admitting she was frustrated by the progress of the case and "regrets projecting that frustration in her demeanor, language and tone," the order stated.

The Power of Apology

• The order stated Motta would have been disciplined far more severely had she not accepted responsibility for her actions.


• A three-page order issued by the federal court's Executive Committee, a disciplinary arm of the court with a revolving panel of judges and the clerk of court ruled that Motta's behavior "prejudiced the administration of justice.”

Family cases - Example• Judge during a settlement

conference - “You people are crazy. You people are just nuts.”


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Family cases - Example• Judge during a hearing - “You

people are crazy. You people are just nuts.”

Family cases - Example• A Louisiana district court

judge once asked me if this statement is appropriate. Apparently, she was frustrated with the games that family court litigants play during a divorce or during a child custody battle.

Family cases• A Judge who lacks civility on

the bench or in an opinion bolsters incivility in the profession. By demonstrating civility on the bench and demanding the same from the lawyers who appear before them, judges can encourage civility.

Family cases• Judges should always be

conscious of their role in the legal world and behave accordingly.

• Gerald Lebovits, et al http://jay.law.ou.edu/faculty/Jmaute/Issues%20in%20Professionalism%20and%20Externships/SSRN_ID1299767_code882062.pdf

Family cases - Example• Judge says, “You two have to

be kidding, you are arguing over matchboxes, or coupons, or cups [or whatever ??]”

Family cases - Example• A Judge issues a decision and announces it

announce from the Bench, and the attorneys are supposed to reduce it to writing and submit it, but they cannot agree on what the Judge said. At the next conference, the Judge states from the Bench, “You two are acting just like your clients. You need to grow up and stop acting like your crazy clients.”


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Judge’s use of profanity. Ok?• The Judge’s use of

profanity or vulgar language in response to the parties use of such language.

Family Court Litigants - Then

• “Will you marry me?”

Family Court Litigants - Now

• The way I used to love you, Baby that's the way I hate you now.

• The late blues great B.B. King.

Family Court Litigants

• When parties arrive at family court, they are usually very emotional. This phase of their lives is full of stress.


• “Some of the losses that parties suffer in a separation and/or divorce are: – economic loss;

– loss of a home;

– social loss;

– loss of daily contact with children;

– loss of a housekeeper,

– cook, grocery buyer, clothes buyer, and/or taxi driver;

Family Court Litigants– loss of a repairman,

– gardener, or

– person with technical knowledge;

– loss of a career,

– loss of the ex-spouse’s family members and friends; loss of a sex partner;

– loss of physical security; and

– loss of a value system.


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• “The emotions associated with these losses affect the parties’ moods, their attitudes, their ways of thinking, and their behavior in a family court session. The feelings that divorcing and/or separating parties could have in a family court session include abandonment, shock, anger, denial, insecurity, low self-esteem, confusion, depression, loneliness, betrayal, and victimization.


• The emotions associated with these losses affect the parties’ moods, their attitudes, their ways of thinking, and their behavior in a family court session.


• “The feelings that divorcing and/or separating parties could have in family court litigation include – abandonment,

– shock,

– anger,

– denial,

– insecurity,


• low self-esteem,

• confusion,

• depression,

• loneliness,

• betrayal, and

• victimization.


• Sleepless nights, strange illnesses, and weird feelings are also among the things that participants in a family litigation may also be experiencing. It is also common for parties to experience or engage in behavior that they have never experienced before. Parties may sometimes be surprised by their own behavior. Many times, they are not “themselves.


• “Some feelings that may be associated with a divorce or separation include:

• “I’m going crazy;”

• “Life isn’t worth it without her;”

• “I feel dead, like a walking zombie;”

• “I am sad and cry all the time and don’t know why;”

• “I’m helpless;”

• “I’m hopeless;”


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• “If I can’t have her, no one can have her.”

• and

• “I’m not me anymore.”

• The Judge must recognize that these feelings could possibly exist and learn how to deal with them.”


• In other words, family court litigants are very frustrated. As a result of these feelings and emotions, parties sometimes “act out” or “act up.” The words and actions of the parties can lead judges to view the parties as being – childish,

– crazy,

– batty,

– mentally unstable, and petty.


• Additionally, this conduct by the parties may cause the judges to use language that they would not normally use. In other words, judges sometimes feel the pressure from the parties and they “act out” or “act up.”

• Source: Bobby Marzine Harges, Mediating High Conflict Domestic Relations Cases,

63 La. B.J. 212 (October/November 2012).

City Court and Juvenile Court Litigants

• Many parties who are litigating in family, city, and juvenile courts in Louisiana are not represented by attorneys. These “pro se” litigants decide to handle their issues in court themselves without direct representation by attorneys.

• City court and juvenile court litigants have many of the same feelings and emotions as do family court litigants.

What Is a Judge to Do?

• The way I used to love you, Baby that's the way I hate you now.

• The late blues great B.B. King.

How Can a Judge Get to Yes?

• People want to feel that they were heard.

• People want respect, even if they are disrespectful.

• People want a safe environment.

• I know. I know. “Professor, you are asking too much!”


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• Canon 3(A)(4) A judge shall perform judicial duties without bias or prejudice. A judge shall not, in the performance of judicial duties, by words or conduct manifest bias or prejudice, and shall not permit staff, court officials or others subject to the judge's direction and control to do so.


• A judge may make reasonable efforts, consistent with the law and court rules, to facilitate the abilities of all litigants, including self-represented litigants, to be fairly heard, provided, however, that in so doing, a Judge should not give self-represented litigants an unfair advantage or create an appearance of partiality to the reasonable person.

• COMMENTARY TO CANON 3A(4) (2013)

• Steps judges may consider in facilitating the right of self-represented litigants to be heard, and which (they might find) are consistent with these principles include, but are not limited to:

• (1) making referrals to any resources available to assist the litigant in preparation of the case;

• (2) providing brief information about the proceeding and evidentiary and foundational requirements;

• (3) asking neutral questions to elicit or clarify information;

• (4) attempting to make legal concepts understandable by minimizing use of legal jargon; and

• (5) explaining the basis for a ruling.

At the Beginning of a Session

• The Judge should explain in detail how the proceeding will be conducted.

• These guidelines include the commitment of the Judge to be courteous, a commitment that only one party speaks at a time, and that if one party has something to say while the other is speaking that he will write down his thoughts on paper so that he can use that information later when it is his time to speak.


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At the Beginning of a Session

• These rules are important because when the parties begin to argue, the Judge should remind the parties of these ground rules. This reminder may be made by the Judge numerous times during the session.

When Parties Argue about the Past

• Parties tend to argue about things that occurred in the past. While past occurrences will help the Judge understand the parties and their issues, the Judge should not dwell in the past or allow the parties to remain focused there.

Focus on the Legal Standards

• During settlement conferences, negotiate based on the legal standards. Inform the parties what the legal standards are.

What if the Parties Raise Their Voices?

• When the Judge notices that the parties are raising their voices, she should not raise his/her voice to match their tone of voice. This will only escalate the situation and the situation may get out of control. The Judge should remain calm, focused, and respectful at all times.


• It is not necessary for the Judge to correct the parties every time they argue with each other because many the times the parties are voicing their issues, concerns, and gripes with the other party.


• The Judge should distinguish emotions from behavior. It is normal for parties to become emotional when they are negotiating in the presence of an ex-spouse or ex-lover, business partner, neighbor, or friend. As long as the parties are arguing or discussing the matter constructively, the Judge should observe the parties and listen attentively to their statements. The Judge should take note of the concerns of the parties and inform them that she has heard their concerns.


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What about Safety?

• If the behavior of the parties becomes destructive or dangerous, it is at this point that the Judge should intervene and take control of the process. The Judge should not allow the behavior of one party to become a threat of harm or harmful to the other party or to the Judge. Judges in settlement conferences will have the power of the court behind them to help them handle unruly parties.

What if They Really Really Act Up?

• Litigants are people too.

• They are going through stressful times.

• Even when the parties are “acting up,” the Judge should not become disgusted with the parties as if they are acting like children.

• After all, you asked for this job.


• Even when the Judge believes that the parties are “crazy” or “weird” because they are arguing over something that the Judge considers trivial or worthless, the Judge should still be respectful to the parties.

• Respect builds trust, and trust builds credibility. Credibility assists the Judge in becoming more effective as a neutral.


• A Judge should never say, “You all are just divorce crazy right now. This will go away.”

• Never say, “You people are nuts.”

• Or, “You are arguing over towels. Are you serious?”

• Don’t say, “Both of you are rotten, or that you are a "train wreck" and a "liar."

• These statements generally do not work.


• Whatever the issue is, it is real to the parties.

• Otherwise, they would not be arguing over it.

• Seek to understand what the real issue is.

• Sometimes, people need to tell their stories.

Fair, Neutral, & Impartial

• At all times, the Judge should remain neutral and non-judgmental during a settlement conference. She should not take sides, for credibility is always in issue. If the parties believe that the Judge is taking sides, trust will be destroyed and very little will be accomplished during the settlement conference.


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Litigants Deserve Respect!

• In the words of Retired Judge Patricia Hedges of the 22nd JDC, what you see in criminal court are defendants who have been accused of very serious crimes. But you see them at trial on their best behavior, often dressed in a suit.

• In family court, you usually see people who have not been accused of a crime, and you see them at their worst. They are usually acting out and acting up. They are all good people.

• Thanks for your attention!

• Bobby Harges

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