With law school graduation coming across the country this month, we thought it only fit that we share the Great Posner’s wise words for any upcoming lawyer who will spend significant contact with a judge. However, we also want push against Posner’s advice because it appears to place an unfair burden on lawyers.  In What Young (and Old) Lawyers Need to Know About Judges, 43 The Colorado Layer 3, 75 (2014), Posner’s advice is clear: School Your Judge.

Posner first begins by acknowledging that the increasing complexity in both cases and legal doctrine has made communication between lawyers and judges difficult. However, he quickly moves on from this point probably to suggest that this increased complexity is a reality and not an excuse that justifies lack of communication. It is still the responsibility of a layer to communicate to a judge the facts and related legal doctrine of a case.

Quite humbly, Posner moves on to state that lawyers fail “to understand how little an appellate judge is likely to know about a specialized area of law.” He notes that appellate judges are generalist – while they know a fair amount about recurrent types of cases, their jurisdiction reaches far beyond these familiar types of cases, and as a result, many of the cases they hear are in areas of law they encounter infrequently. The same can be true for lower court judges.

Consequently, it is up to a legal advocate to educate the judge presiding over a case. If uneducated, a “judge is likely perforce to base decision on hunch, intuition, or (encompassing these and other decision guides) his or her ‘priors.'” The best way to educate a judge is through good communication, not only in legal documents such as briefs, but also through oral advocacy.

Posner notes that advocates should not fear educating judges and that judges in fact “are happy to be educated by the lawyers in the intricacies of a case.” Posner never shies away from a bold and controversial statement, so we can only wonder how much truth is attached to this proposition. Posner in fact seems to place more responsibility on lawyers. He notes that “lawyers must become more skilled in translating legal doctrine into common sense.”

He gives an example of the Supreme Court’s formulation of when to grant a preliminary injunction. He notes that the standard is not clear, so it is up to the advocate to clarify the standard for lower court judges. While lawyers no doubt have the obligation to simplify the law and educate judges, is it not the responsibility if judges as well to make the law simple? Why do judges set obscure standards for the rest of the legal profession to figure out?

Judges are presumed to be more knowledgeable about the law than the average lawyer. So why is Posner placing so much emphasis on the role of the lawyer in educating the judge? Even if the judge is a generalist, is it not up to the judge’s own clerks to educate him or her in the law? The only mistake Posner has made is to suggest that legal advocacy is limited to lawyers. Judges too participate in legal advocacy when they makes decisions. So while it is true that lawyers should communicate to and educate judges, a judge cannot dissolve him- or her- self of accountability in making the law simpler.

So, all new lawyers, follow Posner’s advice: educate your judges. However, if that does not work, do not fear because we have advice of our own: appeal your judges.