Last week at the State Bar of Texas Annual Meeting, attorneys packed a room at the Fort Worth Convention Center to hear Judges Roy Ferguson and David Canales talk about what to do—and what not to do—to gain respect from judges. The session, Effective and Ethical Advocacy from the Judge’s Perspective, was put on by the General Practice, Solo, and Small Firm Section.
Ferguson and Canales stressed how organized discovery, technological transparency, and respecting pro se litigants can deeply influence an attorney’s ever-important reputation. “I remember every lawyer who comes before me,” said Ferguson, judge of the 394th Judicial District Court in Alpine.
Here are some of their top tips.
- Win because of the facts, not despite of the facts. “If you are going to withhold something, the very fact that you’re tempted to withhold it probably means that it’s exculpatory or the defense could do something with it,” Ferguson said. “Turn it over.”
- Argue with the opposing side only over disagreements that have a legitimate basis. Canales, judge of the 73rd Civil District Court in San Antonio, said he will often listen as long as the dispute is valid. Ferguson echoed the sentiment, noting that a lot of arguing wastes time—which clients will notice.
- Look at the case deeply when setting discovery requests. Canales said he sometimes has lawyers redraft their discovery requests if done sloppily. “This affects your reputation greatly.”
- Behave according to the Texas Lawyer’s Creed. “This should be something that we strive to do; we want the orderly administration of justice,” Canales said, noting that he has asked badly behaving lawyers to write out the creed 10 times. Even though the Disciplinary Rules don’t sanction certain actions, Ferguson said many judges will use their own form of sanctions for especially irksome behavior.
- Ensure that information is not deleted or modified beginning at the time that you can reasonably anticipate litigation (an initial consultation). If you delete or recommend that your client delete anything from this point forward and the judge finds out, Ferguson said, it’s spoliation. Canales pointed out this is especially important with emails and social media. “In this day and age, with the technology that we have, it’s often too late—it’s out in the universe.”
- Don’t “railroad” pro se litigants. Canales said he will not allow lawyers to do certain things even when a pro se doesn’t know to object. “You have to be careful not to push the rules just to get an advantage,” he said. Ferguson said this especially applies to hearsay: If a lawyer’s witness is introducing hearsay evidence over and over because the pro se litigant doesn’t understand hearsay, Ferguson will eventually direct the witness to stop answering and has even released a witness from a subpoena. When it comes to objecting to pro se actions, Canales recommended holding objections for pro se litigants who talk in a narrative fashion. “Let’s get to the meat and potatoes of the case, and let’s get it done. It’s about the orderly administration of justice.”
- Protect the reputation of the profession by being mindful of your words and actions around clients. “It’s the way you talk to opposing counsel in the courtroom,” Ferguson said.
It’s you looking clients in the eye and saying, ‘That lawyer lied’ or, ‘That stupid judge.’ If you lose a hearing, do not tell the client how the cow ate the cabbage about what just happened. Tell them to go home and digest. Don’t let the client pick up on your anger. The greatest threat to our reputation is us.”