Oh no. Why is my lawyer arguing with the Judge?

Answer: Because if I don’t, the courts will likely say the legal errors they made were your fault.

My clients sometimes worry when I object repeatedly or push back against a judge. It can feel uncomfortable. It can feel excessive.

But modern criminal appellate law—especially in Colorado—has made one thing brutally clear: if a lawyer does not object clearly, specifically, and thoroughly your rights are not protected.

That reality was on display recently at the United States Supreme Court. It came up in the oral argument for Pitchford v. Cain, a pretty simple case involving racial discrimination in jury selection. This kind of prosecutorial misconduct is handled under Batson v. Kentucky, a legal doctrine that is already highly forgiving of prosecutorial misconduct.

Here’s what happened in Pitchford v. Cain. At the original trial, the prosecutor struck four Black jurors. (This particular prosecutor had a long, long history of racism and shocking misconduct… but that’s another story.)

Because the defendant was black and has a right to a trial by jury of his peers—meaning, a fair cross section of the community—and for other reasons… Defense counsel objected under Batson. The trial court dismissed the objection, said the Batson issue was preserved for the record and then, reading between the lines of the transcript, acted impatiently and treated the Defense objection as a nuisance.

Defense counsel waited and then politely objected again, later. But…. Defense counsel did not rudely interrupt the Judge, do all of the Batson steps for the Judge, demand a thorough ruling, and aggressively argue that the prosecutor’s explanations for getting rid of all the black jurors were pretextual. Years later, courts said that the defense lawyers restraint meant waiver.

Justice Samuel Alito helped us all to understand this “waiver” approach to the law. During oral argument at the US Supreme Court he described the defense lawyer as “timid.” What he seems to have been asking was “Maybe it’s OK if the prosecutor was racist and violated the law, and maybe it’s OK that the Judge also didn’t follow the law… because maybe this was all the defendant’s fault, because the defense lawyer was too ‘timid’?”

Here’s my prediction. The US Supreme Court will answer Justice Alito’s implied question by saying “No.” In any case, Justice Alito was just saying aloud, and honestly, what many courts regularly say using obscure, technical language.

Why does this matter to you?

If you hire a good criminal defense attorney, sometimes they will not be “timid”. And that can feel uncomfortable.

When your lawyer interrupts, re‑objects, or argues after the judge seems ready to move on, that is not disrespect. That is survival.

A calm, polite, deferential lawyer who is mostly interested in pleasing everyone… that may feel “slick” or “professional” or “safe” in the moment.

But later, that silence can be deadly. That silence may become the reason a higher court will say “even though there was a major error, it was not the Prosecutor’s fault (for engaging in misconduct) or the Judge’s fault (for failing to apply the law)… no, instead… this was all the Defendant’s fault. Their lawyer was too “timid”, so we don’t have to do anything about an obvious legal error.”

This single word, “timid”, explains why experienced trial lawyers sometimes sound combative.

When I defend my client’s rights in court, this is a judgment call. Sometimes I am not arguing just for today. Sometimes I am making a record for tomorrow. Sometimes I am also signaling to the Judge that, while we will respectfully accept what they decide right now, we are not going to just roll over and play dead and ignore injustice.

This brings up one my favorite topics… “waiver”

What “Waiver” Really Means

Here’s my shorthand baby talk. You can think of “waiver” as “waving bye-bye to your rights”.

In appellate law, waiver means losing the right to complain later because the legal issue was not properly raised and preserved. In most cases, appellate courts will not fix an error unless the lawyer objected at the time it happened and for the correct reason and in the right way.

Colorado courts enforce this rule strictly. There was a strong trend of finding waiver in our appellate courts for a while. It seemed to die down. But these things have a way of coming back.

The Colorado Supreme Court has made clear that when a defendant knows about or could know about really any legal error and fails to object, the issue is usually waived—even if the error is very serious. In People v. Garcia (2024), the court held that a defendant waved bye bye to their right to have a fair judge at trial.

At trial, there was a serious judicial disqualification claim. The defense lawyers failed to object when the issue first arose, even though having a biased Judge (who had previous access to protected, confidential information) is absolutely structural error. Structural error is a big deal. It’s like buying a house with a cracked foundation, not just a fixable carpentry error. Anyway, all of that gets a bit technical…

Here’s the point: Silence mattered. Failing to object destroyed the right of appeal. It allowed a Judge to preside over a person’s trial who should never have presided over the trial under settled law.

Our Court of Appeals recognized this problem and tried to do something about it. But then, the Colorado Supreme Court said all of this was the defendant’s fault. Of course, they didn’t say that. They used technical language. They didn’t just call a lawyer “timid”. But the effect was the same. This legal error was not the Government’s fault. This legal error was not the Judge’s fault, who absolutely should have known the law about disqualification and handed the trial to another Judge. No, apparently not fixing the crack in the foundation was the defendant’s fault. So the defendant doesn’t get to complain.

Colorado Examples of Waiver in Real Cases

Colorado appellate decisions are chock full of examples where defendants lost strong arguments even when there was a serious legal error and even when the trial judge was wrong—because the defense lawyer didn’t object enough or in the right way. I used to collect these cases, just for fun.

Here are a few examples:

Jury selection:
People v. Ambrose, People v. Vergari

Batson challenges:
Romero

In Colorado, our courts have taken the Pitchford v. Cain approach… where having a Judge signal “your Batson objection is preserved, Mr. Defense Attorney, please sit down” means that it can still be the defendant’s fault. Defense attorneys apparently have to interrupt a Judge, do everyone’s job for them, and walk through the Batson steps the Judge is supposed to take. Failure to do so risks appellate courts summarily denying relief.

Motions in limine:
A pretrial motion does not preserve anything unless the lawyer objects again at trial. Colorado follows the rule that evidence objections must be renewed contemporaneously or the issue is waived on appeal.

Evidentiary objections:
Under long‑standing Colorado law, if a lawyer does not state the specific ground for an objection—or fails to get a ruling—the appellate court will often treat the issue as unpreserved.

The Bottom Line

When your lawyer seems argumentative with the Judge, it is not because they enjoy conflict or foolishly want to ruffle a Judge’s feathers. It is because modern appellate law—especially in Colorado—punishes restraint.

Sometimes your lawyer is not just defending you in that courtroom and in that moment.

They are defending your right to have legal errors reviewed at all. And they are also signalling that you will not be bullied.

Remember: Rights don’t just happen by themselves. They are not floating in the air, a gift from the heavens, waiting to land generously in your lap.

Rights happen only when you vigorously exercise them.