Judges are just like everyone else: They hate to be told, “You’re wrong.” In fact, some judges are so afraid of having their rulings overturned by the appellate courts that they’ve decided to take an easy way out: They’ve stopped making rulings! After all, if there isn’t a ruling, there’s nothing for the appellate court to overturn, right? Here’s a typical scenario:
Attorney #1: What happened at the executive council meeting?
Witness: Well, I heard that…
Attorney #2: Objection! Hearsay!
Attorney #1: It’s not hearsay, your Honor, because [reason].
Judge: Move it along, counselor.
Attorney #1: Ok. Let’s talk about [different subject]…
Situations like this arise every day in courtrooms around the country. Using a combination of body language, tone, and other non-verbal behaviors, judges subtly encourage lawyers to rephrase questions or move on to new topics. When you’re caught up in the heat of battle, it feels like the judge has issued a ruling, so you rephrase your question or move onto another topic. In reality, no ruling has been issued, because the judge hasn’t ordered you or your opponent to do anything. A common term for describing this type of action is called a “non-ruling.”
The most effective “non-ruling” judges you’ll encounter are often the friendliest judges you’ll encounter in your practice. These judges succeed at “non-ruling” by drawing upon your inner desire to be a consummate professional, while also creating a congenial courtroom attitude. By encouraging both litigators to just “go along and get along,” they can avoid issuing stern rulings (and also avoid a reversal from the appellate bench). Usually, “non-rulings” will be disguised as kindly suggestions, such as, “Why don’t you go ahead and rephrase your question, ok?” Since you don’t want to stir up the pot, you’re usually inclined to go along with the judge’s suggestion.
Here are some other common methods judges use to issue “non-rulings”:
- “Move it along, counselor.”
- “Please rephrase your question.”
- “Ask a different question.”
- “Go ahead.”
- Silence, combined with a scowl of the face or a nod of the head.
From a day-to-day practice point of view, “non-rulings” probably aren’t that big a deal for experienced trial lawyers, because it’s easy to rephrase your questions and work around them. However, here are two reasons why you should be wary when a judge issues “non-ruling.”
First, if you’re a neophyte lawyer, you’re probably a little nervous in the courtroom. When the judge tells you to “move it along,” you’re likely to overreact, skipping past evidence that should be admissible.
The second (and more insidious) problem with “non-rulings” is the effect they have on your appellate record. “Non-rulings” leave the losing party without an appellate remedy. In the event of a non-ruling, the appellate court will always uphold the lower court decision. Why? Because the judge didn’t order either party to do anything. Instead of issuing an order, he simply left the matter in your hands and your opponent’s hands. If you decided not to ask the question or not to admit the evidence, that’s your fault, not the judge’s fault, and the appellate court can’t help you.
So what do you do? How can you fix the situation? Well, it depends. First, you should decide if you really need the judge to rule. Sometimes, a non-ruling is all you need. If you’re the one who’s been objected to, you can simply rephrase your question and seek another way to introduce your evidence. If you’re the one objecting, you’ve put your opponent on notice not to go down that road, and that may be enough to keep him from revisiting the issue.
But let’s say that you really need a ruling. What do you do then? If you need the judge to rule, you probably shouldn’t tell him what to do. After all, nobody likes to be told what to do, especially judges. Instead, consider asking the judge for a ruling. Obviously, you’ll need to be polite when asking the judge for a ruling. Here are a few examples of how to ask:
- The polite request: “Your Honor, before I continue, could I ask you to rule on the objection?”
- The clarification: “Judge, can I clarify your ruling? You’re ruling that the entire conversation is hearsay, right?”
- The inferential nudge: “So you’re sustaining my objection, your Honor?”
Most of the time, non-rulings won’t cause any permanent damage to your case. However, when you need the court to issue a ruling, you really need the court to issue a ruling. In those situations, make sure you’ve got your ears perked up to listen for any “non-rulings,” and then be prepared to correct the situation before your case goes to the appellate level.