Day on Torts
An Appreciation for the Discretion Vested in the Trial Judge
Trial judges are human. Each of them have certain strengths and weaknesses. Some may not have been at the top of their class in law school but know how to preside over the trial of a lawsuit. Others are very bright but struggle with the challenges of a jury trial. Some naturally favor the defense, and some favor the plaintiff. Some believe that summary judgment gives them the power to weigh evidence, and others believe that Rule 56 should not exist. Some believe that jurors can weigh expert testimony, while others believe that jurors must be protected from any expert who has not personally tested every premise of her position and had the results of those efforts peer reviewed by the top authorities in the field. Some rule on objections, and others just waive a hand and say "move on." And so on.
Great trial lawyers know that the judge (whether she is the trier of fact or is presiding over a jury trial) is accorded great deference by the appellate courts on evidentiary and procedural rulings. These lawyers adjust their game plan to meet the needs and wants of that judge, whether they agree or disagree with how the judge runs the courtroom. Why? Because they understand that, at the end of the day, the judge’s rulings on discretionary items will probably be upheld, and the failure to plan accordingly will harm the case,
Great trial lawyers also understand that a judge whose life experiences cause the judge to favor the lawyer’s position can occasionally go too far. It is easy for a lawyer to swept up in this activity, to experience the gratification of each favorable ruling, and thus to aggressively seek to admit questionable evidence or keep out evidence from an adversary that should be admitted. Great trial lawyers tread carefully in this situation, knowing what rulings are discretionary and what rulings may be reversible error. They pull back when they are getting too much help from a judge, in an effort to protect the record in the event of an appeal.
In summary, great trial lawyers understand that they need to lose the motions they should lose, endeavor to win the motions they should win, and fight to win as many discretionary rulings as they can. They can do so only if they understand (a) who the trial judge is; (b) the law on the particular point and (c) the law of the discretion afforded the trial judge.