At one point Kessler became exasperated with the judges. “I sense that you all are influenced by your version of the facts.”
We saw this coming months ago.
While I'm not saying you were wrong with your assessment of Kessler as an individual attorney, I have to note that this sounds like a bone-headed thing to say at any
level of advocacy. Perhaps the context will justify Kessler's comment, but you never go there casually or in frustration.
For the non-attorneys in the thread, I wouldn't characterize Kessler's statement as a purely "appellate attorney v. non-apellate attorney" issue, as some have moved toward in this thread. In the vein of "the customer is always right," it's pretty standard maxim that absent extraordinary circumstances, one never directly says (or strongly implies) that the court is biased
, or pre-determined
, or obtuse
, or missing the point,
or not listening,
or letting emotion cloud their judgement,
Any good advocate should have several easily-rolled-out and well practiced strategies to deal with (very human) judges that are angry, emotional, confused, ill-informed about the facts, or are actually biased going into an argument. What you really want to do is emotionally/logically validate the judge's position, then redefine the argument. There are many ways to do that, but in terms of what you actually say, the other party may have mislead
the court about the facts, or mischaracterized
the actual issue, etc. etc. The court is probably not even ever mistaken
about something. Unless it's a completely understandable mistake, to the point where "I thought the exact same thing at first, your honor, until my co-counsel pointed out that. . ."