How to Tell a Judge He (or She) Screwed Up

My guest today is retired judge Bill Hopkins, author of Courting Murder, published in OCtober 2012 by Southeast Missouri University Press. 

“When Judge Rosswell Carew makes the gruesome discovery of two corpses on a riverbank in the Missouri Ozarks, he’s plunged into a storm of deadly secrets that threaten both him and his fiancée, Tina Parkmore. Unsatisfied with the way the authorities are conducting the investigation, Rosswell, who’s always nurtured a secret desire to be a detective, teams up with an ex-con, Ollie Groton, to solve the case before the killer can murder again. Rosswell uncovers a maze of crimes so tangled that he must fight his way to a solution or die trying.”

(The information in this blog is drawn from The Honorable Robert W. Gettleman’s article in the American Bar Association’s Section of Litigation’s Practice Essentials articles, available online here, and from my twenty years on the trial bench and five years as an administrative law judge.)

“I’m going to tell you how to diplomatically tell a judge that he (that’s used as an inclusive pronoun) has screwed up. You can use this information in your writing when you want your character–whether it’s a judge, lawyer, or party to the lawsuit–to realize that something bad has gone wrong during a lawsuit.

This article covers only criminal jury trials.

If you use the methods outlined here, you’ll no doubt get fewer nasty letters from lawyers complaining that you’ve mangled the legal system, but this information is being given as is, with all faults, and there are no warranties, express or implied. (I’ve been waiting years to use that useless phrase.)

Know your stuff. I’ve made my share of errors and have received nasty reviews from appellate courts. But your judge should know his stuff. If he makes a mistake on the admission of evidence, then you must do your homework and find out what the correct ruling would be. Let’s say that your jurisdiction does not allow a spouse to testify against the other spouse. The prosecutor in your case has a wife that’s dying to spill the beans on her husband (the defendant). The defendant objects but the court (that’s what lawyers call the judge when they’re trying to be nice) allows it. You will have to learn about privileged communications in your state and why the judge’s ruling is wrong.

Ask for a sidebar. That’s when the judge and lawyers discuss something out of the hearing of the jury but in front of the jury. Juries are human and when you do that, the jury will think that what just happened (i.e., the error the judge made) is a lot more important than it really is. If you want your character to bring attention to the error, have him ask for a sidebar. If you want him to minimize the error, have him ask for a short recess.

Your character must always be respectful towards the judge, regardless of what kind of idiot you have sitting on the bench. Once a judge makes a ruling in the courtroom, all argument ceases, unlike what I’ve witnessed in television shows, movies, and books. Muttering and eye rolling doesn’t impress the judge, much less continued arguing.

If the error is that the judge sustained an objection to a question that is clearly okay to ask, then have your character rephrase the question. If your character is the prosecutor and he asks, “Officer, was the defendant drunk?” and the defendant’s objection is sustained, have the prosecutor start over. “Officer, did you have reason to believe the defendant had consumed alcohol?” And so on.

Always make a record. One of the best things I learned in judges’ college–yes, there really are such things–was to make a record. If your character wants a bloody iron pipe entered into evidence and the court sustains the other party’s objection, then he should make an offer of proof. (This is often done outside the hearing of the jury.) The lawyer who wants the pipe entered into evidence will have a chance to show and tell the judge why the pipe should be entered into evidence. Unless your character is the prosecutor (most of the time, a prosecutor can’t appeal a not guilty verdict) and the judge still refuses, then, assuming your character is convicted, he will have a record to show the court of appeals.

Writers are constantly asking me legal questions for their stories. I’m happy to answer them, but the best answer is usually, “Ask a lawyer or judge in your area.” If you live in a big city, that may be a bit harder than living in a rural area where people are more likely to know each other. But, for example, if you live in a big city, go visit the courthouse and watch a few criminal jury trials. If you’re polite and have a business card showing the judge or a lawyer that you’re a writer, they may be willing to answer hypothetical questions.”

***

Bill Hopkins is retired after beginning his legal career in 1971 and serving as a private attorney, prosecuting attorney, an administrative law judge, and a trial court judge, all in Missouri. His poems, short stories, and non-fiction have appeared in many different publications. He’s had several short plays produced. A book of collected poetry, Moving Into Forever, is available on Amazon. Bill is a member of Mystery Writers of America, Dramatists Guild, Horror Writers Association, Missouri Writers Guild, and Sisters In Crime. Bill is also a photographer who has sold work in the United States, Canada, and Europe. He and his wife, Sharon (a mortgage banker who is also a published writer), live in Marble Hill, Missouri, with their dogs and cat. Besides writing, Bill and Sharon are involved in collecting and restoring Camaros. Courting Murder is his first mystery novel.

6 thoughts on “How to Tell a Judge He (or She) Screwed Up

  1. Bill, thanks for the “legal advice.” I’m not sure what “making a record” is, but being prior government, I understand about getting things in writing. Do you have to specifically ask them to make a record, or is it automatically recorded in the sidebar? (It seems to be a sidebar to me, because it’s outside of the jury’s hearing, is that correct?)

    • Diane, a sidebar would only be “on the record” if the court reporter participates — so lawyers who want the conversation recorded make sure to ask for that. That can be hard for the reporter, though, so the judge might end up sending the jury out of the courtroom briefly — which can frustrate or annoy some jurors, so you have to be careful!

  2. Thanks, Judge Hopkins! I’m a Maine lawyer who litigated for about five years when I was a new lawyer, but moved into transactional work before I developed the depth of knowledge that would allow me to to offer the kind of advice you are able to give.

    I’m fortunate (small state, supportive bar) to know prosecutors, criminal defense lawyers and judges personally, and have found they are more than willing to review courtroom scenes I write for both tone and techincal accuracy. I’m sure their generosity would extend to writers who aren’t lawyers.

    Also, good advice that writers intending to write courtroom scenes ought to attend some trials. As we know, it’s not at all like TV!

    Many thanks!

    Brenda Buchanan
    Portland, Maine

    • Brenda, you’re right about the advantages of a small state bar. Easier to share info, as you say, and I think lawyers have an extra incentive to be courteous when they know they’ll keep running into the same folks year after year — in their practice, and at the grocery store!

  3. Thanks, Brenda and Diane!

    Making a record can be as simple as asking the judge to note something in the file (i.e., the docket sheet) or having a court reporter take it down.

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