It's got to be a pretty important issue to justify getting confrontational with the judge.  The judge will undoubtedly make dozens and dozens of other rulings before the case is over and if they don't like you that's dozens and dozens of opportunities to show it. In order for this to be worth it the issue that you got confrontational about has to be an issue central to the case and the record in question a record central to that issue. Otherwise, you annoy the judge and cause yourself problems for an issue that isn't likely to be major enough to permit you to obtain relief on appeal. Appellate courts very regularly resort to the harmless error rule, and you see many  appellate decisions that say "yes, the judge should have admitted the record but the error was not large enough to justify a new trial or other relief."  And, that opportunity for appellate relief, such as it is, is likely to be years down the road given that these matters tend to drag out in court for years and years. So as a practical matter, if the judge makes a bad ruling, you're probably stuck with it no matter how much you fuss about it, and certainly, you're stuck with it for the duration of the trial proceedings.  That's why lawyers don't like to annoy judges.  

Best regards,

John Montaņa 
Montaņa & Associates
29 Parsons Road
Landenberg Pennsylvania 19350
484-653-8422 mobile
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twitter: @johncmontana


On Sep 14, 2011, at 4:01 PM, Frederic Grevin wrote:

> Bill commented "The attorney may blame the judge, but I suspect it is the attorney who has the issue.  I would suggest looking for new counsel."
> Fred's answer:  That's rarely an option when you are dealing with in-house counsel.
> And John Montaņa said "The judge does not have unfettered discretion to admit or not admit as he sees fit. So, if you have a petulant judge that is being difficult and contrary about the admissibility of something, you are at a decision point and have to decide whether or not the controversy and the record in question are worth getting into a fight about. Sometimes they are and sometimes they aren't."
> Fred's answer:  again, the attorneys with whom I've discussed simply don't want to get into a fight. Admissibility is not the issue. Getting on a judge's bad side is.

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