Voices of the Bar 3/31/16: Tell Us a Story About Practicing in Front of a Judge

We have a variety of programs coming up featuring judicial leaders that are designed to help lawyers see their responsibilities from the perspective of someone on the bench.  So, we were hoping for the same from you – we want to know what it’s like to practice in front of a judge from the perspective of a lawyer.

We contacted members in search of stories about attorney flubs, wise words from judges, and anything else they found noteworthy from their years in practice.

For this week’s “Voices of the Bar” column, we reached out to ask:

“What has been your most memorable moment practicing in front of a judge?

J.W. Carney – Carney & Associates
“I will never forget the day that a District Attorney moved to dismiss three criminal convictions against Dennis Maher after he was exonerated by DNA testing. He had served 19 years in prison, and I had been his prosecutor.”

Lauren J. Weitzen – Lawson & Weitzen
“Following a bench trial in which my young client was facing a mandatory minimum sentence of incarceration for possessing a loaded firearm, the judge issued a Not Guilty verdict. My client, through tears, thanked the judge, told her his wife just had a baby a few days ago, and promised that his life was moving forward in a positive direction. The judge responded, seemingly emotional as well, that she made her decision based on the performance of his excellent attorney and that his whole life was now ahead of him, in his hands only, and wished him the best of luck.”

Brian Bixby – Burns & Levinson
“I was handling a will contest, and one of the parties removed the case to the U.S. District Court on the basis that there was a bequest to a charity that is technically a federal agency.  The case was assigned to Judge Tauro, who had scheduled a status conference requiring all the attorneys to appear.  He looked down at us, and particularly to the attorney who had removed the case to Federal Court and said, ‘I have been on the bench for about half a century.  I have never tried a will contest and don’t plan to start now.  Just because you can remove a case from the Probate Court does not mean that you should.  I will schedule another hearing in 30 days, and I don’t expect any of you to be here.’  We weren’t.”

Carol E. Nesson – Law Office of Carol E. Nesson
“The defendant,  represented by counsel, testified that she was innocent of a crime and   “just shared with her friends.”  “Oh, and did you share with your friends [on the night of the alleged offense]”, I asked.  “Oh, yes”, she answered. I then started to ask another question.  The judge, barely able to keep from cracking up, then advised me to know when I had won and stop!”

David Cherny – Atwood Cherny
“While trying a divorce case before Judge Haskell “Hutchie” Freedman in Lawrence many years ago, an expert witness acknowledged under cross-exam that he had never testified or qualified as a witness before that trial. Judge Freedman leaned over to the witness, looked him right in the eye and said “Son, EVERYBODY has to have a first time.”

Luke T. Cadigan – K & L Gates
“When I was a mid-level associate, a judge asked me at the outset of an argument whether I was ‘3:03 certified.’ In other words, was I still in law school?  It is the most unnerving question I have ever received from the bench.”

Brandon Scruggs – Sunstein Kann Murphy & Timbers
“When I was doing a stint as an Assistant District Attorney, I prosecuted a case where the Commonwealth accused a woman of attacking her ex-boyfriend with what appeared to be a portable stripper pole.  Just before the trial, I found myself arguing two interesting motions in limine.  Defense counsel moved to bar anyone from referring to the pole as a “stripper pole” and also wanted to have the labelling on the pole removed because if a juror read it, they would probably figure out what the device was.  I agreed not to refer to the pole as a stripper pole because I didn’t have a witness that could confirm that without speculation (and I didn’t need to call it a stripper pole to prove my case).  On the labelling, the judge sensibly ruled that the pole should remain unaltered so that the evidence would be in the condition it was in at the time of the alleged crime (or as close to it as possible).  At trial, I got to admit the stripper pole into evidence.  I even got to take a simulated swing with it at closing argument.  And the jury eventually convicted the defendant.”

If you would like to respond to a future Voices of the Bar, make sure you send a headshot, and contact Lauren DiTullio at lditullio@bostonbar.org.