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Post: Blog2 Post

Know when to shut up

Updated: Feb 11, 2023

I was almost always in the courtroom behind the bench with the Judge for motions' hearings when opposing lawyers were arguing a legal point for a ruling from the Judge.

At times, on his way down to the courtroom, Judge Norton would say, “You don’t need to come down for this one. I got it.” He had a call button behind the elevated bench in the courtroom that he could press that would buzz in the law clerks' office if he needed assistance. We also had a speaker in our office that broadcast the audio from the courtroom.

On one occasion, when it buzzed, I grabbed my yellow legal pad and hurried to the elevator to get down to the courtroom. I entered through the back door behind the jury box and sat in my chair behind him on the bench.

One of the lawyer's oral arguments had been ongoing for some time.

A few minutes passed, and with counsel still talking, the Judge slid his chair back towards me. He leaned over and whispered, “I don’t need anything. I just wanted you to watch this lawyer royally mess this up. When you are winning, sometimes it’s best just to sit down and shut up.”

He rolled his chair back to the front of the bench. “You finished yet, counselor?” the Judge asked.

“No sir, your honor, just a few more points,” he said.

When the lawyer finished, the Judge asked opposing counsel if they had anything to say.

Opposing counsel said, “No, your honor.”

The Judge then denied the motion of the big talker. What was a strong motion on the written pleadings filed with the court in advance became weak with excessive talking.

Opposing counsel had read the courtroom and astutely decided not to speak. Nothing to add.

Lawyers get paid to speak and argue and zealously represent their client. However, knowing when not to speak and resisting the urge to speak is an important lesson.

That has been a great lesson for me not only as a lawyer, but also as a corporate leader.

Years later after my clerkship, I unsuccessfully tried to apply this rule as a young litigator when a senior partner at my law firm insisted I argue a motion before Judge Norton. The insurance company we represented was trying to deny life insurance benefits for a deceased’s wife.

It was an ERISA employment law case, and I did not handle ERISA employment matters.

I told the senior partner, “He’s not going to do us any favors just because I clerked for him.”

I also advised the client that Judge Norton would likely not deny a multi-million-dollar life insurance policy to a widow left with three children because her deceased husband had failed to check a box on the policy application. This was a case involving a minor scrivener's error with a potential major adverse impact and a very sympathetic widow.

Judge Norton followed the law, but also had a big heart.

At the hearing, the partner insisted I make a long, drawn-out oral argument, all of which was contained in the written pleadings we had filed with the court in advance.

At the end of my oral argument, the Judge stated, “Mr. Fava, you finished?”

“Yes, your honor, I am,” I said. I began to sit down.

“Ok, good. Not so fast. Don’t sit down quite yet, Mr. Fava,” the Judge said. “I know you, and you’re a good lawyer, although you’re not an ERISA lawyer. I suspect you have advised your out-of-state insurance client that this is probably not a winning motion. I will take it under advisement giving the parties a short time to try to settle the matter.”

We settled the case the next day paying the insurance policy limits.

Sometimes it best not to talk too much, especially with bad facts.

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1 Comment

TD Smyers
TD Smyers
Jan 28, 2023

Bad facts don't get better with either volume or repetition! In fact, as you point here, these can even make good facts get lost in the rhetoric! Great post, Mark; and well written.

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