NEW: When a Judge Refuses to be a Judge: Advocacy That Wins, Inside the Courtroom, Lessons from Court.

I’ve called this series the 'Caro Excellence in Legal Advocacy' — but it’s really about how courtroom persuasion actually works. Not theory. Not tactics. Just truth. It’s inspired in part by the method of Robert A. Caro, the preeminent political biographer today who believes in relentless fact-checking, disciplined storytelling, and exposing how power really works. His writing isn’t about politics or history. It’s about power and how power works in a democracy. It's about who has power, how to get it and how that power is wielded. It also seeks to expose how and why decisions get made and the forces that shape decision-makers.

That’s what good advocacy is too.

Picture this.

You’ve driven 4 hours to get to a remote court. That’s 4 hours there and 4 back.

And that’s before you do any work.

That’s only one problem.

You facing a judge with an almost 100% conviction rate.

They don’t care about evidence, the law or anything else.

They will convict your client.

And everyone knows it.

"the law was something that could be used

to beat people over the head with if you wanted,

or just ignored when you didn’t.

Either way the law did what you wanted it to do"

Sounds crazy? Its true. I’ve encountered them.

One such a judge only retired recently. It was a known fact that no matter how good your case was, no matter what kind of legal defence you had, the only way you’d win was if the State withdrew the case before it began.

As this almost never happened defeat was a certainty.

It was a known fact from the defence, to the prosecution, to the court service staff, prison officers and court reporters what was going to happen.

Everyone was “in on” this sham.

Everyone except the client.

This judge was based in the west of the country. I knew, every single kilometre of the 310kms it took to drive to this court, that my client would be convicted.

The evidence was irrelevant.

It was depressing.

I had first appeared in her court many years ago.

I was defending a drug driving case.

I spoke to the Garda Inspector before the case was heard. I explained the main problems with the case, from their point of view.

I could easily do so because the mistake was undeniable and, more importantly, unfixable.  

This was in October.

The Inspector agreed that the State position was weak but he wanted the case to go on as a “learning experience” for all Gardai involved in the case.

However he cautioned me:

“You know who we have, don’t you”?

This was a veiled reference by the State as to who the judge was.

I said that I did.

"You could apply the law or ignore it.

But you did not apply or enforce the law

if that meant the result was something

you didn’t like.

Like someone being acquitted of drink driving.

In these cases you just ignored the law"

“You know what she’ll do? You might have to go upstairs” he said almost apologetically.

This was another reference, less veiled this time, advising me that I might end up having to appeal this judge’s decision.

The State were telling me that no matter what legal argument I presented, my client would be convicted.

Having not experienced this brazen refusal to do one’s job I naively refused to believe it.

I felt sure that cogent legal argument -the law was in my favour- would win the day.

I was wrong.

To someone like this judge, the law was something that could be used to beat people over the head with if you wanted, or just ignored when you didn’t. Either way the law did what you wanted it to do.

You could apply or ignore it. But you did not apply or enforce the law if that meant the result was something you didn’t like. Like someone being acquitted of drink driving. In these cases you just ignored the law.

After the case concluded I made an application to have the case struck out based on legal grounds i.e. the law.

The State did not contradict what I argued or offer counter arguments. In every court in the country the case would be over.

The judge now intervened.

"She smiled at me and said -

I’ll always remember this-

“if you’re not happy you can appeal.

You might get a better result”."

Rather than strike the case out they decided to adjourn the case until February the following year. They wanted “legal submissions” i.e. arguments by both sides as to why the case should be decided in their favour based on the law.

In retrospect this was a ploy designed to “buy time” while the judge came up with some imaginative excuse as to why I would lose.

And I would lose. No doubt about it.

But at that stage I didn’t realise it.  

I drafted my submissions and served them on the State and the court.

The State served their submissions on me.

And then we waited.

When the case returned to court a few months later the Judge merely said that she had read the submissions of both sides and was “finding in favour of the State”. 

She gave no reasons for this.

Amazed, I asked her on what grounds she was finding in favour of the State, especially considering that since the case was last in court the High Court had issued a judgement relevant to the issues in my case and which found in favour of the defendant.

But just as importantly, she was the one who had sought submissions.

Neither the State not I had done so.

So she was obliged to explain her decision.

She smiled and shook her head.

She refused to say why she was taking the State side, just that she was.

She smiled at me and said -I’ll always remember this- “if you’re not happy you can appeal. You might get a better result”.

It wasn't losing that was the galling part: it was the sheer cynicism of what was going on.

And everyone knew exactly what was going on.

We did appeal. On the spot.

In fact I handed my appeal papers in immediately as I suspected that she would do something like this.

This prompted her to laugh. I remember this like it was yesterday:

“You mustn’t have had much faith in your submissions that you’re handing in appeal papers so quickly!”

I replied that I had “every faith in my submissions”.

I did not say what I should have said: “I just had no faith in you to do your job”.

It was a 4 hour drive home and I was furious all the way.

She had deliberately wasted my time and my client’s money by dragging us both back to her court on some spurious pretext that she would engage properly with the evidence.

She had no intention of it.

The joke was on me.

She was getting paid €150k a year and was refusing to do her job.

She might have had the title of ‘judge’, but she was not a judge.

She was also an embarrassment to her fellow judges in general, and female judges in particular, all of whom work very hard and try their best to manage lengthy and often unmanageable court lists.

When the case appeared some months later in the appeal court, the State -to their great credit- immediately conceded.

After I had explained what had happened to the State Solicitor (prosecutor on behalf of the DPP), he laughed and said, “you hardly expected her to apply the law did you!”

She was notorious. Everyone knew what she was like.

When the case was called the State did not even fight it.

The State Solicitor very fairly asked the Circuit Court judge to “allow that appeal” i.e. to overturn the decision of the lower court.

“You mustn’t have had much faith in your submissions

that you’re handing in appeal papers so quickly!”

I replied that I had “every faith in my submissions”. 

I did not say what I should have said:

“I just had no faith in you to do your job”.

I later spoke to a friend of mine who is a judge. He was not shocked.

Among his colleagues on the bench she was well known. He told me that I should have “judicially reviewed” her to the High Court.

This basically involves complaining a judge to the High Court. Frankly I don't like that approach.

As I had never judicially reviewed any judge (and still haven't) I wasn’t keen.

And I didn’t.

We waited for the appeal and thankfully were successful.

How do you deal with a judge like this?

For a start it is a rare occurrence. This judge would have been representative of less than 5% of judges in total. The vast majority of judges do their jobs and apply the law. They don’t approve of drink or drug driving of course but they leave their personal views to one side in favour of the law. But there are still some out there who believe that they’re ‘sheriffs’ whose job it is to “right the wrong” if someone may be acquitted because they had the law on their side.

"If you’re nothing more than an extension

of the prosecution and not independent of it,

in the end the public are the ones who pay the price"

 

Let me explain something to those judges that they may not understand.

I was once in the Gardai. I was a member for 10 years. I worked with some very fine police officers. I was based in a part of the country where the local district court judge was “pro-State”.

In other words, their decisions favoured the State in almost all cases.

No doubt they felt they were doing the public a service by ‘keeping’ the conviction rate high. But they weren’t.

Because we knew that we would get convictions almost for the asking, it made us complacent. ‘Lazy’ isn’t the word but you didn’t have to work hard with this judge to win your case.

And then problems emerged.

While you could get away with minimal effort with that judge, in the higher courts you couldn’t. As we had ‘learned’ on the job that the rules of evidence weren’t terribly important we weren’t ready for the shock of what happens in the circuit criminal court where the rules of evidence do count. One by one, big criminal prosecutions fell apart and some very serious criminals walked free.

So, this judge, whose stated aim was to protect the public by keeping convictions high in the district court ended up inadvertently hurting the public when serious criminals walked free from the circuit court.

If you’re nothing more than an extension of the prosecution and not independent of it, in the end the public are the ones who pay the price.

So what do you do?

Here’s a strategy. Its highly unusual and goes against the grain of everything your taught and believe.

As lawyers we are trained to win. But sometimes we shouldn’t try to win, we should try to lose.

In the next instalment in the Caro series I’ll explain why, by highlighting a forgotten case from a dusty courtroom in Texas in 1948.

The result of that case changed world history.

Literally.