July 3, 2019


Recently, I asked a colleague what he wished he could learn from the judge who was listening to his argument at bar.  He said that his major focus was on the "tell" of the judge.  It was an expression, I admit, that was unfamiliar to me, so, naturally, I pressed for further explanation.


The "tell," he responded, is a sign of the inner thoughts of the judge as he or she listened to the argument.  Of course, I wanted to know how those signs were manifested.  According to my colleague, you can see it in the gaze of the judge, the expression on his or her face, the body language, or other conduct that would give a sense of the judge’s thoughts. 


In other words, if you see a squint or frown, you could assume that the judge is not in agreement with your position.  Conversely, if you see a smile or gentle gaze, you could assume that the judge is aligned on that point.  On the other hand, too much writing at the bench, or distracted eye contact, may indicate disinterest, or even perhaps, dissatisfaction, in your presentation. 


Here's my take on the matter.  That squint or frown could also be from indigestion, the consequence of a bad lunch.  Judges are also subject to the human condition.  It may be difficult to distinguish whether the expression is an icon of an emotional or bodily reaction.  I can't speak for other judges, but sometimes I would smile in admiration for a zealous or passionate argument.  But, in chambers, evidence and facts take top seat in the determination.  As for distracted conduct, it may be multi-tasking or just plain rudeness. 


Applying the "tell" may work at the poker table in gauging the reality or bluff of a card player's hand.  But, I caution against betting all your chips on the mindset of the judge.  The strategy that works in the courtroom applies to all, no matter what the "tell" is from the judge.  It includes providing succinct papers, pointed arguments, and civil attitude.  Despite the differences in personality and style, all judges are alike in one respect -- we are all sworn to follow the rule of law!





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