On Lawyers Criticizing Judges Before Whom They Appear

In my immediately preceding post I gently, and I think respectfully, challenged the legal reasoning of an aspect of a decision in a recent appeal that I lost.  Several colleagues, friends and family members, whose opinions I value, called me to ask whether I should have refrained from publishing that post.  Their concern was that openly challenging the reasoning of a tribunal before which I regularly appear could hurt me professionally.

I have given considerable thought to their concerns.  On reflection, however, I think they are misplaced.

Initially, I think that the attorneys who are personally involved in an appeal are often best positioned to comment on possible flaws, both factual and legal, in the opinion that resolves the appeal.  They are intimately familiar with the record, the arguments that were made, the cases cited in the briefs, etc., and they can tell–with much greater ease then someone who lacked any involvement in the case–whether the court played fast and loose with the facts or interpreted or applied a precedent in a questionable way.

Given that intimate knowledge, which may be of great value to the bar in future cases, why shouldn’t an attorney criticize a decision in a case in which he was involved, if the criticism is justified?

Of course attorneys have a professional obligation to demonstrate respect for the legal system and for those who serve it, including judges.  Of course an attorney should never make a statement that he knows to be false or with reckless disregard as to its truth or falsity concerning a judge’s integrity.  But respectfully criticizing a judge’s or a tribunal’s legal reasoning on its merits does not violate either of these ethical obligations.

But I don’t think the people who called me were worried about the ethical implications of my post.  They were worried about its human implications.  They were worried that judges, being human beings, might hold my criticism of them against me.

I understand and appreciate the concern, but I think judges–particularly our judges here in the Nutmeg State–are bigger than that.   I think they can take constructive criticism.  And I think judges know the difference between: i) a lawyer who is simply whining because he is unhappy that he lost a case; and ii) a lawyer who loves the law, loves the courts, and is respectfully questioning the merits of a judge’s legal reasoning.

There is another reason, however, why I think lawyers should not be too reluctant to critique the reasoning of the judges before whom they appear.  This reason came to me in the form of an epiphany when I was racking up a clutch of billiard balls for a game of 8-ball.  (Short digression: I stink at pool.  My son wanted to play while we were vacationing with my in-laws in Florida during a winter vacation.)  As I was holding the rack vertically, I pictured the judge at the top of the triangle and the lawyers at the bottom corners.  Then I laid the rack down flat on the table.  The judge was no longer “on the top” of the triangle;  rather, he occupied one of three equally important positions on a level playing field.

Yes, judges wear robes.  They often sit on elevated benches.  They are the ones who decide the cases.  Being appointed a judge is often the pinnacle of a lawyer’s legal career.  It is a great achievement.  Judges are entitled to respect.  But they are not “better” or “higher” than members of the bar.  They just perform a different function.   And, as I said, they are not so thin-skinned that they can’t take the occasional respectful, constructive criticism from the lawyers who appear before them.