Monday, August 11, 2008


On a regular basis, newspapers, TV broadcasts and magazines (not to mention the blogosphere) are convulsed with stories about judges: Should they be activists or strict constructionists? Is their experience sufficiently broad and deep? Have they published enough? These debates, of course, are about Supreme Court Justices and, occasionally, federal appellate justices. Their rulings have the ability to affect the lives of all Americans, so it's extremely important that we determine what the majority of Americans want from these judges -- and then determine whether the individual candidates satisfy those needs.

Many lawyers, however, when they think of judges on a daily basis, aren't thinking of rarefied jurists on high courts. Instead, they are thinking about the judge in their local superior or district court, the one who is managing their case, who listening to their motion (or opposition) in the first instance, who is overseeing their jury selection, who is listening to their witnesses, and who will ultimately return the ruling that, in 98% of all cases, is the one that sticks. It's the day-to-day judges who matter most to so many of us.

I therefore decided to bend my mind to the very personal task of figuring out what I like and don't like in these judges -- the day-to-day guys and gals who give the thumbs up or thumbs down to so much of my work.

Right off the bat, I like judges who treat me courteously. I think many of them would do well to remember the advice my Mom's grandmother (who grew up in a wealthy European home in the 19th Century) passed on to my Mom regarding servants: "Treat them politely, dear. Remember, they can't answer back."

The same is true, of course, for attorneys faces judges in the courtroom. Until attorneys have the ability to hold judges in contempt, all the power in that room rests with the judge. Given that balance of power, there is no reason in the world for a judge to be rude -- yet so many are. This kind of boorish behavior is inexcusable and, aside from creating feelings of contempt for the man or woman in the robe, it also destroys the respect due to the office.

While I like my judges to be courteous, I also like them to be in charge of their courtroom and of the case. Just as judges fail if they're rude or crude in the courtroom, they also fail if they let attorneys run amok. Lawyers and parties waiting patiently for their turn on the docket sheet shouldn't have to listen to hours of pointless waffle from two attorneys who happen to have a personal bone to pick with each other. It's the judge's responsibility to control this behavior. Absent judicial intervention, the lawyers have no incentive to stop fighting, since there is always the possibility that the last uttered argument or insult will do the trick. Only the judge can halt proceedings before they get out of hand.

The judge's ability to stop things before they get crazy isn't just limited to oral argument. As a contract attorney, I get to work lots of different cases, and I get to see lots of different lawyers go toe-to-toe. There are some lawyers who are naturally aggressive and will fight everything to the death. Get two of these personality types opposing each other on a case, and you will find yourself in situation similar to one on which I once worked.

That long-ago dispute was over an unpaid $26,000 bill. Each side in the case incurred over $250,000 in attorney's fees. The case settled after 3 years for $11,000. It goes without saying that many of those attorney's fees resulted from motions, especially discovery motions. It should have been immediately obvious to the judge that the attorneys involved had no sense of proportion and were bound and determined to abuse the judicial system with myriad picayune motions. A wise jurist would have spelled out some rules -- backed with sanctions -- from the git-go. We had no wise jurists. I made a lot of money off the case (insane litigators are a gold mine for contract attorneys), but I had a bad taste in my mouth about the whole thing.

I'd also like to see judges recognize their limitations -- and in this regard I'm very much a strict constructionist. I've never recovered from the moment, more than 15 years ago, when a judge denied my summary judgment motion with these words: "I know he doesn't have a cause of action, but I think there's something there." How wrong could one judge be about his role in the case? Once he determined that the plaintiff didn't have a cause of action, his responsibility ended. Given the clearly applicable law, the judge's opinion was meaningless. And as it happened, it wasn't only meaningless, it was dead wrong. The case went on for another five years and $1.5 million dollars, only to end with a complete victory on just about the same grounds stated in my original motion for summary judgment.

Judges should determine and apply the law, not listen to their gut feelings. Only in that way can our legal system be reliable and affordable. Loose cannon jurists who take sides because they like one party as a matter of principle, or dislike a lawyer because of his personality, and who allow the law to fall before their prejudices, destroy not only individual cases, but chip away at the credibility of our entire legal system. They should be impeached.

What are your opinions about what judges should and should not do?

1 comment:

culturalpropertylaw said...

"Judges should determine and apply the law, not listen to their gut feelings."

I think that the law, sometimes, requires a level of gut interpretation. E.g., was an action fair, foreseeable, reasonable? Otherwise, we might as well put robots behind the bench, no?