There are ways to persuade a judge to use discretion in your client’s favor.
By Jeb Branham • 4th Circuit Judge
After litigating for more than 25 years, I’ve just cleared my first year on the bench.
While I still have plenty to learn about being a good judge, this year has shown me some easy ways I could have improved the effectiveness of my advocacy as a litigator.
Seeing court from the bench’s perspective really drove home the importance to effective advocacy of tending to the basics.
While most lawyers intuitively know this, many, including myself when I practiced, sometimes lose sight of the concept.
So, how do you persuade the judge to use the discretion the law provides, and do so in your client’s favor? Cover the basics. Who has the burden of proof? What is the standard of proof, i.e. preponderance of the evidence, clear and convincing evidence, etc.?
Is there a constitutional provision or statute that applies? Is there controlling Florida Supreme Court precedent or 1st District Court of Appeal precedent?
If not, does the precedent from other District Courts of Appeal conflict or agree? Does the judge have any discretion? If so, is there a standard that the judge must apply when exercising that discretion? Is the issue decided as a matter of record or is it evidentiary?
To rule, the judge has to answer these kinds of basic questions. You might as well take a shot at doing it for the court at the outset.
Ideally, these basics are addressed in an attorney’s written motion. Otherwise, a well-prepared lawyer can tick through the answers in two or three minutes at a hearing.
Addressing the basics establishes a clear, legally correct framework for the judge’s decision-making and makes a nice record if an appeal happens later.
Occasionally, the answers are so uniformly known that it’s unnecessary to address them. However, the nature of legal analysis requires extreme attention to detail. Sometimes this can lead to a neglect of the basics that undermines effective advocacy.
Talk about the forest, not just the trees.
We all know hearing time is in short supply. What is a great way to get some extra words in? Come to the hearing with a proposed order and follow up with an emailed Word version if the judge allows it.
A well-drafted proposed order reflects your argument. It contains: 1) a short statement of the pertinent facts and procedural posture of the case; 2) the controlling law (see the questions above); 3) an application of the facts to the law that explains the rationale behind the decision you want the judge to make; and 4) a precise statement of the relief given.
Writing it down before your hearing will prepare you for the hearing. As a bonus, if the judge takes the matter under advisement, you’ve also given the judge a written reminder of the excellent argument you made at the hearing.
My first year on the bench has been amazing, and I thank the bench and Bar for it. I hope this article gives you some insight about how a long-time litigator sees things as a short-time judge. I’ll see you in court.
Jeb Branham joined the bench Feb. 1, 2021, after appointment by Gov. Ron DeSantis to succeed Circuit Judge David Gooding.
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