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Trial Practice: PlayingAbove the Umpire

We have three boys. All the boys were/are quite involved in sports. When the boys would complain about a bad call, one ofmy wife's favorite sayings was that a player has to play above the umpire. Don't give the umpire a chance to call a close play. He can't call a strike if you hit the ball. He can't call you out if you are crossing the plate before the ball even reaches the baseman.

I just watched the Copa America game, Mexico v Uruguay and the ref in that game was about as bad as I have seen. He was way over the top biased for Mexico. (I have no dog in that fight.) The game was tied 1-1. Both teams had lost a player so each side was playing with 10 men. Something happened down by Uruguay's goal that set the Uruguayan players off mightily against the referee. The team captain and the rest of the players were furious about something. Mexico took a comer kick and all the energy that Uruguay had just expanded against the ref was exactly that, expanded. They were so mad they forgot to tighten up their defense. Mexico got an easy second goal.

Trial can be very much like that. Judges have their biases. Many of them deny having any at all which makes them very scary. Some flaunt their biases as if they were badges of honor. In a criminal law context, we all !mow the image of the hanging judge who is way too cozy with the prosecution. You might as well admit guilt right now because to him, you are guilty just walking into his courtroom. But in a family law context, the bias can be just as bad. What do you do if you are a working woman in a divorce ruled by a judge that hates women? What do you do if you are a husband up against a blaming wife in front of a judge who thinks that women are always the victims? You have to play above the umpire. You have to not give the judge any wiggle room to hurt you. And it gets worse when the judge rules from his obvious biases and you lose your cool. Not only does this justify, to the judge, his n1ling against you, it distracts you from what else is going on in the trial. 

Everyone knows that trial is a battle, but usually, the impression is a batt e against the other side. Obviously, you wouldn't be in a trial if the other side weren't willing to battle you. But trial can also be a battle with the umpire, the judge, wh9 can be mad at you for who you are, or for who they think you are because opposing counsel, who also knows the judge's bias, has come out of the box painting you into a corner strategized upon the judge's bias, or because of your demand for the trial when the judge thinks he has better things to do that rule on your trial. (Yes, that actually happens,)

So you've got to play above the umpire. Minimize their opportunities to exercise their bias whenever possible. When it isn't possible, you must engage in damage control.Justice is relative. Justice isn't spit out by a computer, at least: ot yet, so you have to deal with the human element, the biased umpire.

Michael Manely

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