Have you noticed how many continuing legal education programs feature "judges panels" and urge you to attend so their honors can instruct you in how to win your next case?
A blurb about an upcoming "Legal Writing to Win" seminar in Texas highlights its "Judges Panel: The Worst Things We See in Briefs". The ABA's 2014 Class Actions National Institute promises to inform you "how judges view class actions". Lots of bars offer "view from the bench" sessions.
All of these resources share the premise that what you learn from judges will help you win. But will it?
Advice from the Chief Justice
Chief Justice John G. Roberts didn't think so before he took the bench. At least he took judicial instruction with a grain of salt.
He explained, in his immensely helpful "Thoughts on Presenting an Effective Oral Argument" in 1997, in this way:
Be particularly skeptical of advice on how to argue an appeal from appellate judges. The great Supreme Court lawyer John W. Davis, in his classic piece on appellate advocacy, asserted that "a discourse on the argument of an appeal would come with superior force from a judge who is in his judicial person the target and the trier of the argument," but Davis' comment must be qualified in an important respect: most judges give good advice on how to win a winning case. They all say to focus on the language of the statute in a statutory interpretation case, to discuss the facts fairly and objectively, to describe the holdings of any controlling cases. Good advice if the statutory language is helpful, the facts support your position, and the precedent leans your way; perhaps not so good advice if the opposite is true. Judge have no interest in the court reaching a "wrong" result, but fifty percent of clients do.
What We Can Learn
Lawyer Roberts didn't want to imply of course that listening to judges talk about what they like and find effective will waste your time. He meant instead that you still have to think hard about "the strengths and weaknesses of your case."
"General rules are of no help here."
Roberts-the-advocate reminds us that pointers on "how to win a winning case", even from your very own judge, may not help either.
The difficult thing is to take a case that could go either way — the great bulk of them — and make it into a winner. The ability to do that is what separates the pikers from the John Robertses.