Mark Roman | August 10, 2018 | news

The trial of Paul Manafort, President Trump’s former campaign chair, is chugging along in federal court near Washington, D.C. Manafort is accused of various financial crimes such as bank and tax fraud.

Financial crime cases make for some pretty dry testimony. In trials of this type, witnesses may pore over financial statements and loan papers for days. To try and find something interesting to write about, journalists covering the trial have focused on the judge, T.S. Ellis. Ellis has been described as involved, colorful, and even as the star of the show. He has drawn particular attention for his frequent clashes with lawyers over the pace of the trial and the testimony being offered.

This is not good news. Generally, if a judge is the star of the show, something is very wrong. Trial judges should not be the star of a trial any more than referees should be the star of an NFL game. In general, judges are not supposed to interject themselves into proceedings. They should not take over the questioning or micro manage lawyers who are trying cases. Their role, as Supreme Court Justice John Roberts famously said, is simply to “call balls and strikes.”

As a lawyer, it’s hard not to feel sympathy for the legal teams involved as they try to cope with Judge Ellis. Neither the prosecutors nor the defense attorneys are amateurs; both sides have capable and experienced courtroom lawyers. Presumably, neither side wants to waste time or cause unnecessary problems. This suggests the problem may not be with the lawyers, but the judge himself. It may be that Judge Ellis is just being too impatient and combative. And while observers often think a judge is the smartest lawyer in the courtroom, that is not always true.

Indeed, Judge Ellis actually ended up having to do a bit of a mea culpa in front of the jury. First, he allowed an expert witness for the prosecution to sit through the trial before testifying. This is not unusual. Expert witnesses, unlike lay witnesses, are typically allowed to observe the trial and consider the evidence they hear before taking the stand themselves.

Even so, Judge Ellis got mad at the prosecutors when they called the expert witness who had been observing the trial. When prosecutors pointed out that he’d given them permission to do things that way, he got even more mad. In a particularly low moment, he warned prosecutors not to refer to the transcript and point out what he’d already said.

The next day, Judge Ellis calmed down and rightly told the jury not to hold his criticisms against the prosecutors. Even then, Judge Ellis could only bring himself to issue this kinda-sorta half-apology: “You may put that aside . . . I may well have been wrong.”

Trying cases is not easy. It takes a lot of self-control to keep your cool during long days which fray your nerves. Judges who constantly intervene and second guess the attorneys make the job that much harder. Lawyers are sometimes required to push back, gently but firmly, to keep a judge from derailing their case. A respectful tone and an unflappable demeanor can help settle a judge down and put the attention back on the evidence.

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