THE THINGS I LEARNED FROM MY FIRST COURT APPEARANCE
BY: NIKKI CLARK
This article was republished with permission from Nikki Clark, now a Commissioner with the Superior Court of California, County of Alameda. It was originally published by the ABA some 10 years ago, but still holds true today.
I was sworn in as an attorney over a decade ago. The day after I was sworn in, I made my first official appearance as a member of the bar. This appearance resonates more in my memory than any other court appearance that I have made over the years.
I had been given the assignment of appearing in a Law and Motion department to argue a Motion to Continue a personal injury/products liability trial date that loomed in the not-too-distant future. My employer at the time advised me that the continuance was necessary because the expert witness selected to explain and substantiate the plaintiff’s injuries would not be available at the appointed time of trial. In fact, the doctor had never been properly subpoenaed to appear, and was off enjoying a vacation in Europe.
I was told that it would be a relatively uneventful appearance, as the defendant’s counsel had already stipulated to the continuance. Nonetheless, I decided the only possible course of action was to show up fully prepared to argue any possible contingencies or problems.
The night before the appearance, I looked up every conceivable statute and case related to having a Motion to Continue a trial date granted, or that formed any justification whatsoever for a denial. I absorbed all the information I could, took some pertinent notes, and felt a little more secure about going to court.
The next morning, I managed to get to court twenty minutes early. No calendar appeared outside the department indicating either the number of matters on calendar or their order of appearance. As I surveyed the attorneys as they began to arrive, I felt a little relieved as it appeared that there would be a fair amount of activity in Law and Motion that morning. This worked for me, as I thought I could take advantage of the collective knowledge and experience of the crowd by watching them argue their respective motions.
I spoke to a few attorneys and asked them about their experiences with the Judge. I explained that it was my first appearance that day, and any information that they could share with me would be helpful. I was told that the Judge routinely challenged the first few cases called, but that I shouldn’t worry as my case would no doubt be called later in the calendar.
At exactly 9:00 a.m., the Judge took the bench. His countenance was austere and mechanical. His expression was detached and ambivalent, and he offered no morning greetings to counsel or his staff. He made himself comfortable and appeared to be reviewing the morning’s calendar. Two of the attorneys seated behind me began to chat quietly about their case. The murmur got the Judge’s attention, and he glared at them with such ferocity that they were immediately silenced.
Well, ok, so he wouldn’t win any congeniality awards. But how bad could things get? I got my answer when my case was called first. First, just my luck. I stood up from my seat and tentatively approached the front of the courtroom. Defense counsel approached right behind me.
The Judge looked down, as if reading the moving papers. There was absolute, palpable silence in the courtroom for almost thirty seconds. Finally, he looked directly at me and told me that the case had already been continued once and he was not inclined to do so again. Then he simply stared at me, with a look that seemed to defy any response.
I was just a little confused at this point as to whether he wanted or expected me to respond, or whether I might incur some unjustified wrath if I attempted to do so. But I was sent to argue the Motion, so I thought I had better give it a shot.
I enumerated all the statutory reasons that supported the request for the continuance, laying them out one by one as concisely as I could. Even though it was a little intimidating, the Judge and I maintained eye contact throughout my monologue. I watched his face the entire time, for some sign, any sign, of agreement or approval. There was none. NONE. And I wasn’t exactly sure what to do about it.
After about ten minutes of argument from me, the Judge stopped me. He asked me, “Is that all you have counsel, because if that’s it, I haven’t heard anything to change my initial inclination to deny your motion.” I have no doubt I looked perplexed at that moment. He said, “Counsel, do you want to add anything?”
All I could think of to say was, “I don’t know your honor, do I?”
That response prompted him to smile ever so slightly. I took it as an invitation to continue. I decided in that moment that his initial reaction based strictly statutory interpretation was probably unassailable. So, I launched into a public policy argument, something that has since served me well in almost every situation where a Judge appears to waiver. Then I raised legislative intent, equity, and lack of detriment, and all the other less tangible legal positions that I could think of that might give him a reason to lean my way.
I simply continued to talk, to reason, to argue. After about ten minutes of my non-stop monologue, the Judge simply raised his hand to me, as a policeman might do to stop traffic.
He said, “In that case counsel, I have decided to grant your request. Pick your new trial date.” I have no doubt I must have looked confused for the third time that morning. But I simply said, “Thank you your honor.”
I hung around the courtroom for about a half an hour after my hearing ended. There were two other Motions to Continue trial dates in that half hour. Each took approximately two or three minutes and was granted routinely. When I left the courtroom, I made a point of making eye contact with the Judge. He held my gaze and again I saw the faintest trace of a smile reappear on his face, as he turned his attention back to the matter before him.
As I walked out of the courtroom, I could not help wondering if all new attorneys received this “initiation” from the Judge. I will likely never know the answer to those questions.
But I will never forget my first day in court and how I successfully turned the Judge around and won the motion that I “could not lose”.
So, what did I learn from this first court appearance?
- Don’t stop your presentation until you have made every reasonable, supportable argument available, even when you think it might be hopeless.
- Monitor the Judge’s face and body language for possible clues.
- When no specific statutory basis supports your position, argue legislative intent, public policy or equity.
- Always fully prepare for any court appearance
- Don’t make assumptions about how the Court will ultimately rule
- Lawyers are generally good people who are happy to help other lawyers (especially rookies). So, if you have questions, ask another lawyer.