by Hon. Brenden Griffin
Judge Brenden Griffin was
Advice Judges Give That’s Worth Repeating
appointed to the Pima County
Superior Court in May 2013 by
then-Governor Jan Brewer. He
started on the criminal bench, and
now sits on the juvenile bench.
This column provides tips from judges
on civil practice. If there are practice tips
you’d like covered – or if you are a judge
who would like to write a column –
write to firstname.lastname@example.org.
CIVIL PRACTICE POINTERS
authority to frame
your argument and
make your point.
Not long ago, when I was in private practice, I went to
seminars where judges presented. I wanted to hear what judges found
persuasive—to learn how I could better make my point. Here’s what
many judges said—and that I now find myself repeating.
Tell me (the judge) what you want me to order, specifically. For example, in a juvenile dependency case, don’t generically ask me to order your
client to get more parenting time with his child. Tell me how much time
your client currently gets (two hours
supervised, twice a week), and how
much more he wants (three hours, twice
a week, with only the first and last half-hour of each visit supervised).
Tell me why I have the authority
to order it. Is there a statute, rule, or
reported case that frames the issue? If
yes, tell me. In the parenting-time example, there is a statute that dictates a parent is entitled to reasonable parenting
time unless it would endanger the child.
Use legal authority like this to frame
your argument and make your point.
Tell me why I should order it. If
you’re asking me to exercise my discretion, explain why. Usually that means stressing key facts. For example,
if the State removed your client’s child because of drug-abuse issues,
detail your client’s progress with testing consistently clean and going to
And if you’re asking me to order something the law requires me to
order, then definitely tell me that. For example, if you’re asking me to
hold a hearing ASAP on your motion to have the child’s physical
custody returned to your client, be sure to remind me that, by
rule, I’m supposed to hold that hearing within 30 days.
Address these three things in your written brief’s first paragraph, and then again when you stand at oral argument. Why?
Because these are three things just about every judge is thinking
about when it comes to your issue, motion, etc. And until you
address them, the judge may not be thinking about (or listening
to) anything else.
Another thing I heard judges say worth repeating is: meet and
confer, always and often. As a judge, I like to decide issues—but
only issues parties can’t resolve themselves. Why? They know
themselves and their case better than I do. Thus, if they try, parties often can resolve issues better than I can, especially ones that
don’t go to the heart of the case.
Also, judges like deciding issues truly in dispute. If parties
haven’t met and conferred—and I mean sincerely, not just by
shooting a generic email to the other side—then maybe the issue
isn’t really disputed. Maybe it’s not ripe, or
Judges want to decide issues that are
fully developed. When parties sincerely meet
and confer, they often narrow the issue.
This focuses it for the judge. And then the
judge knows each side is likely prepared
to present that side’s
best facts, best author-
ity, and best argument.
This, in turn, means
the judge will be
ideally positioned to
make the “right” deci-
sion, not one that’s off
the cuff or undevel-
oped. As I’m sure you
already know, judges
like to be “right.”
One more thing
Remember, judges are
people too. In some
respects, treat us like a one-person jury.
Show us the exhibit. Better yet, give us a
copy of it and tell us what page you’re on.
Get to your point, move things along, keep
our attention. For example, with witnesses,
use leading questions on foundational
things, like the witness’s name, education,
training, etc.—things that aren’t really in
dispute. Use topic sentences to telegraph
where you’re going with your questioning:
“Doctor, let’s talk about why you think the
child’s arm wasn’t broken accidentally.”
Now you’ve got my attention.
Don’t assume the judge knows your
facts or the law, especially if he is recently
appointed or just rotated to a new bench.
Find a way to politely educate him. And be
careful with your examples. For instance,
hesitate before arguing that a father is a
“bad” parent because he uses corporal punishment on his kids. Maybe I do the same
with my kids, so you’re essentially telling me
that I’m a “bad” parent. I don’t, but you
get my point.