Apr 12, 2017 Judging goes a long way with good judicial temperament, patience, wisdom, humanity, humility, listening & lack of bias
Being a judge is a privilege with awesome responsibility and power. Once a judge stops seeing judging as a privilege, it is time for the judge to hang up the judicial robes.
Judging can be exhausting work. The criminal and civil lawsuits do not stop getting filed. Paperwork keeps getting filed. No sooner does one hearing or trial finish than the next one begins. Litigants and their lawyers seek postponements, the ear of the judge’s staff, and favorable modifications to the judge’s last adverse ruling.
The job of judging can be lonely. People who called the judge by his or her first name before becoming a judge now stop using the judge’s first name. Once a judge becomes a judge, s/he cannot as easily kick back and brainstorm with lawyer friends about pending cases before the judge, lest ex parte communication rules get compromised directly or indirectly. Judges have practical and legal limits even on brainstorming their cases with other judges.
The job of judging can be frustrating. The law is not always clear on how to rule. The alleged facts are not always the truth nor reality. Being humans, judges can end up assessing witness credibility incorrectly. The party who loses to a judicial decision is not happy. People are not crazy about going to the dentist, but at least the dentist will help the patient. Going before the judge may lead to the situation being better or worse for a litigant than before the judicial proceeding took place.
The job of judging can be exciting. A small percentage of lawyers get into the courtroom much, and judges are there all the time. Although debt collection and landlord-tenant lawsuits can get dull and contentious, various criminal cases, civil rights cases, and a multitude of other cases can be fascinating. The judge’s decisions can make a huge impact on many people’s lives in ways that the judge never considered nor foresaw.
Power can be intoxicating and might sometimes seem easier to misuse than properly to use, whether in the hands of judges or anyone else. Judges who misuse their power sometimes do so in the form of rushing through dockets and dismissing cases more in the name of “administrative efficiency” than in the name of the law or justice. Some judges act as prosecutors in robes. Some judges truly care about fulfilling their oath of office, ready to work the extra hour, go the extra mile, and pay the extra full time and attention to fulfill that oath.
I applaud the judges who fulfill their oaths of office. Among the judges who are not fulfilling their oaths are those judges who know they are not fulfilling their oaths, and those who do not know. Those who know they are not fulfilling their judicial oaths hopefully are committed to correct that or to resigning as judges.
Below I share a sampling of judicial actions that I too often witness that should not be part of the judicial repertoire:
– Playing favorites with certain lawyers, litigants and witnesses. Judges are supposed to be unbiased umpires. That is not served when the judge barks at one lawyer in one breath and jokes broadly with the next lawyer, with the only difference between the two lawyers being that the judge never heard of the first lawyer and was in a college fraternity with the second lawyer.
– Acting convinced that the judge knows best, even without input from the litigants. The best decisions tend to be made when welcoming intelligent input from others. The Bay of Pigs disaster went down with insular and impulsive groupthink. The subsequent Cuban Missile Crisis was peacefully resolved through better deliberation and listening to differing ideas. Many aspects of the law involve complexity or multiple appellate cases that cannot be distilled in a matter of moments; a well-prepared and honest lawyer who has a strong grasp of a legal issue can be a big help to a judge rather than any hindrance, if only the judge will listen.
– Looking to one litigant over the other to guide the judge. That is improper bias, pure and simple. If the judge looks for guidance from a party so as not to look like a fool, the judge will look like worse than a fool if the judge shows that s/he routinely relies on the prosecutor, for instance, to help the judge interpret the law and facts, while being dismissive of the criminal defense lawyer.
– Cutting off the lawyers in argument mid-sentence within the first minute of the lawyer’s talking, in anticipation that the lawyer’s sentence is going in a direction that it is not at all going. Sometimes, more time and energy is spent by such judicial improvidence than by simply and at least briefly listening to what each lawyer has to say.
– Tolerating one lawyer cutting off the speaking of another lawyer, and then getting so impatient or fed up that the judge will not tolerate the interrupted lawyer’s returning to speaking.
– Getting angry over a lawyer’s legitimate argument — even if the judge disagrees with the argument — rather than simply ruling on the lawyer’s argument.
– Getting upset when the judge’s preferred side’s lawyers are underperforming, and then helping that preferred side get back on its feet. That is improper bias at best.
– Getting irritated that criminal or civil litigants have gone to trial rather than settling the case. If few criminal and civil lawsuits go to trial, then hasn’t the purpose of the court system been diminished?
My teacher Ernie Lewis puts matters about judging more bluntly in his “10 Top Things I always wanted to say at a judge’s conference,” including:
” You do too see race when you make decisions.” ” You don’t really believe the police in your findings on motions to suppress.” “Don’t tell me you’re not thinking about your next election when you set a high bond.”
Of course, everything is a two-way street at the very least. Lawyers have their oaths and obligations, and can serve smooth judicial functioning in many ways that d0 not disserve their clients. Even the most tyrannical-seeming judges are still humans, with feelings, hopes and dreams. They have some level of desire to be spoken well of, but are less likely to depart from their tyrannical-seeming ways with people who do not give them the benefit of the doubt that they can and will change for the better. A criminal defense lawyer can be effective inside the courthouse without appearing to kowtow to nor accept the injustices therein. A great example of that is Steve Rench, who applies the basic and effective lessons of the magic mirror. If a judge knows s/he has a poor reputation with lawyers, that presents all the more reason for the lawyer to empty the mind of any such thoughts, and to give the judge a clean slate that day. Oversimplistically, it is like trying to find the thorn in the lion’s sole and to pull it out, rather than trying to slay the lion.
Judges will not look weaker nor will the sky fall by exhibiting even tempers, showing respect to all litigants, and not shortchanging the parties from their day in court. In fact, proceeding in that fashion will strengthen the judicial branch by increasing the public’s respect for and confidence in judges and the judiciary. With that respect and confidence will come litigants who behave more at their best in court, who appreciate the judges and the judiciary, and who in the end make the judges’ jobs easier.