Strange Days Indeed
March 27, 2020 § 5 Comments
Nobody told me there’d be days like these
Nobody told me there’d be days like these
Nobody told me there’d be days like these
Strange days indeed
most peculiar
Mama
John Lennon recorded those prescient words in 1980; that’s 40 years ago. But he might as well have written them last week.
Since last week in our little corner of the Milky Way, we have had a chancellor shot and almost killed, we have been besieged by coronavirus with the result that court dockets have been turned topsy-turvy, and an active attorney with numerous cases on the chancery court docket dropped dead Wednesday evening from a heart attack.
Forgive us around here for thinking that there is some vast cosmic conspiracy at work against us in the Spring of the first year of the second decade of the 21st century.
You, of course, have your own travails. You are under the same epidemic cloud that infests us. And, like us, you have your own everyday woes that are simply the stuff of life regardless of epidemics, et al. It’s a wonder we haven’t all gone stark, raving. I don’t know how we endure it.
But we must not only endure, we must prevail, as a famous Mississippian once said.
There are various strategies. Some fall back on faith, others reason. Some dig deeper into work, others curl up into a fetal ball. Some rage, others shrug. Whatever fills your sails, but just keep sailing ahead.
We will get through this, I am sure. When you have survived as long as I have, you see some strange days, indeed, and these are right up there with the strangest I have ever seen. Most peculiar, mama.
Reflections on the Shooting of a Judge
March 20, 2020 § 10 Comments
Last Monday my fellow chancellor in the Twelfth District, Charles Smith, was ambushed and shot after exiting his pickup to enter the courthouse for the work day. He suffered extensive injuries, and was in critical condition until yesterday, when he was taken off the ventilator. His femoral artery was clipped, and Meridian surgeons had to operate to stop the bleeding. Only after they did that was it possible to transport him to University of Mississippi Medical Center in Jackson, where he has been since and will be for the foreseeable future. He is improving, but still may have to undergo multiple surgeries (he has had 4 already), although we actually got an optimistic report yesterday that damage to his pelvis may not be as bad as originally thought, and that he may not need as many surgeries as they thought at first.
It appears that this was a sniper-type rifle attack. No handgun could inflict that much damage unless at point-blank range; from everything we know, Judge Smith never saw his assailant.
Charlie, as he has been known to us, is an affable, easy-going, kind, considerate person. He’s a family man involved in his church. It’s hard to imagine what he could have done to incite such a savage blow.
And that’s the most troubling aspect. Every one of us — lawyers and judges alike — have handled cases where one party, could be your client, is crazy. By crazy, I mean irrational and even violent. You are lying to yourself if you haven’t thought at some point, even deep down, that you could be in danger from someone you represented, or was on the other side, or was in your court room.
An FBI agent visited my law partner, Tom, back in the 90’s to tell him that a former client he had represented in a criminal case had made a statement that if no one else was willing to kill Tom, the former client would do it himself. Thank goodness it never materialized. A former circuit judge told me of a time when a SWAT team spent the weekend in his home because of credible death threats they had learned of. I’ll bet most of you could relate similar experiences of your own or abut which you’ve heard.
I hope that this atrocity will get public officials to start paying serious attention to courthouse security. Judges should not feel that their lives are in jeopardy at their workplaces. Lawyers should not have to walk through courthouse crowds where some are wielding handguns waiting to intimidate, threaten, or even kill them.
The Declaration of Independence, our American Creed, which predates the Bill of Rights by 11 years, states that each citizen has the unalienable Rights to “Life, Liberty, and the pursuit of Happiness.” Life is the first and foremost right, eclipsing all others. Without life, all those guarantees of the Bill of Rights are meaningless. The Declaration goes on to say that governments are instituted “to secure those rights.” Government must do whatever is necessary to ensure that the lives of lawyers, court personnel, and judges are preserved and protected. It’s our unalienable right.
The Supreme Experience
March 13, 2020 § 5 Comments
Last week, if you checked in on this blog, you were greeted by a cryptic message that I was “out a few days.” I took that time to meet up with my daughter Aimée, who lives in Maryland and works in D.C., for us to attend a session of the US Supreme Court.
Some of you have argued cases before that court, and some may have sat in on argument. I had done neither, so when she suggested we do that, I agreed readily.
On Monday, March 2, we set out early for the Capital. Aimée had learned from a frequent visitor to the court that we needed to get there early. We got in line at 7:00, a.m. Court did not start until 10, but we were already at the end of the block in a line that kept building behind us. Some people at the head of the line had slept there in sleeping bags. We found out later that we were number 78 and 79 in the line. The recurring topic among line-standers was whether we would get in to hear an entire case, or whether we would be shunted to the 3-5 minute line, in which visitors are whisked in, allowed to stand and gawk for 3-5 minutes, and then ushered out to make room for the next group.
Before going on, I need to note that the temperature was in the low 40’s with a 20-mph wind. I was glad to have worn my wool sweater and wool car-coat. Some unfortunates in line had apparently paid more attention to the forecast predicting 60’s by 2:00 that afternoon, and were comparatively — and uncomfortably — undressed for that early morning weather.
Around 8:30, the first 50 in line were taken up on the plaza in front of the building and issued gold-colored tickets. Again, we speculated whether those were the ones who would get to see the main show while we would get a revolving-door peek.
About this time an officer came to police the line and proclaimed that “Everyone here for Wednesday’s case needs to move here.” That’s when we learned that the folks in the sleeping bags had been there since Saturday holding place in line for Wednesday’s case, which involved a challenge to Louisiana’s abortion law. They would sleep over until they got their golden ticket to the Wednesday session, which they would then sell to a pre-arranged buyer who would walk up and take their place in line.
Around 9 we were called up onto the plaza and stood there waiting. An officer explained that they were deciding how much room they had for our group, which by then had grown. We wondered whether we would get to hear even one case.
Around 9:45, an officer began handing golden tickets out to our group, and we were directed to a basement door, through airport-type metal detectors, and lined up on stairs, where we were instructed on court-room etiquette (no cheering, no demonstrations, no speaking, no nonsense) and as to what items were permissible in the court room. Essentially, all you can take in is a pen or pencil and pad of paper. No cell phones, no jackets or coats, no metal of any kind, nothing that can beep — not even an Apple Watch. Then we were loosed on some lockers and coat check area to stow our stuff. From there we went through another metal detector and lined up at the entrance to the court room where we learned for the first time that we were definitely getting to stay for either or both cases set for hearing that morning. An attendant came and collected our gold tickets which would have made great mementos.
And then we were led by an attendant into a vestibule, around a corner, and into the court room at 10:20. We had missed the opening of court, and arguments were in progress. This was the first of two immigration cases to be argued today.
Seated behind the long bench were the nine Justices. From left to right: Gorsuch, Sotomayor, Breyer, Thomas, Roberts, Ginsburg, Alito, Kagan, and Kavanaugh. Immediately in front of them, across from Roberts, close enough for Roberts to hit him with a well-aimed spitball, was a podium where stood counsel for the appellant arguing as best he could among a continuous barrage of questions. In the span of the two cases every Justice but Thomas asked at least one question. Breyer was the most prolific questioner. At one point Sotomayor had to tell the lawyer to quit interrupting her, something none of the lawyers had the nerve to ask the Justices to do.
The lawyers sat at tables behind the podium. Behind and around them were members of the SCOTUS bar. Behind them was a bronze railing set before the general admission area. We were in the third row, in the left section of three sections of long, solid, cushioned pews, 15 in all. A chair was placed at the end of each pew for additional seating, and it appeared that every seat was taken. A guard in a black suit stood facing the onlookers, scanning the crowd repeatedly from one side to the other. Another guard spelled him after a half hour, and they alternated that way for the duration.
The crowd was attentive and quiet. Both cases involved technical interpretation of statutes and the first case even touched on the interplay between habeas corpus and deportation hearings, a dimension that both liberal and conservative justices appeared to latch onto in support of their positions. And yet, for all of its dry technicality, I found the audience intent on trying to follow the argument, rapt even.
When the first case concluded, Roberts simply said, “Case is submitted,” and the attorneys for the next case took the places of those from the first case. Roberts nodded and they commenced their argument.
What struck me was the simplicity and practicality of the proceeding. It was at its heart not much different from a motion hearing one might stumble into in a rural courthouse. Not a bunch of pomp and circumstance or pretension, just lawyers arguing their positions, judges hearing them out and having the lawyers answer the questions they need to have answered before they can make up their minds. Yes, it is the highest court in the land, but it is, after all, just a court doing court business the same as is done thousands of times every day in every county in every state.
That is the majesty of the law in our nation, where the law is sovereign. It does not need external trappings or ritual to lend it gravity and power. Its authority is bestowed on it by our Constitution and by case law. It is paramount in the most modest, rustic courtroom, the same as it is in the United States Supreme Court, and in the very same way in each place.
Philip Thomas’s Long Good-Bye
March 11, 2020 § 3 Comments
As I forewarned in a previous post, Philip Thomas’s blog, Mississippi Litigation Review & Commentary, shut down last week. Philip’s eponymous Last Post, lengthy and replete with personal references, is at this link.
On one level, Philip’s post is a meditation on how the practice of law has changed over the past 25 years, and decidedly not in favor of civil litigation practitioners. He discusses the insane stress that lawyers experience from the practice, the procedures, the office, family, and financial. He muses over other ways to make a living that allow one to be more human, and he relates his experience of the curative powers of wilderness hiking.
On another level, it’s one more disappearance from the Mississippi legal blogosphere that was once more satisfyingly populated, as I pointed out here before.
Between the lines Philip seems to say that we are in the twilight of the law as we have known and practiced it. Changes are curdling the edges of the practice: more ADR; settlement lawyers; mediation; arbitration. Lawyers tell me that clients are more insistent that their cases get settled, and soon, to avoid litigation costs and just get on with their lives. Lawyers who savored the joust and prolonged litigation for their enjoyment are not favored so much any more. Even in chancery, where 15 years ago there were two or more contested hearings a week, the number of actual trials is down, and the number of settlements and agreed judgments is way up.
So here’s a toast to Philip for your thoughtful and thought-provoking posts that spanned 11 years. May your adversities and the jarring demands of the law subside like the turn off of a busy highway onto a peaceful trail sloping gradually through a conifer forest on a cool, breezy day, until you reach a peaceful summit where, reclined against a sun-warmed rock, you view the beauty of the world below, far removed from its clamor.
Peace.
And Then There Was One
January 15, 2020 § 11 Comments
Back when I started this blog in 2010, there were some entertaining, informative Mississippi lawyer blogs that I read regularly. These were on my regular reading list:
Ipse Blogit was Jim Craig’s and Matt Eichelberger’s fun, mildly muckraking, always satirical entry. After resurrecting it from a hiatus, they stopped publication entirely only a few months after I started.
NMiss Commenter was started by Tom Freeland as a real-time report on the Scruggs scandal and morphed into its own freestanding general-purpose entertainment and must-read daily until Tom’s untimely and unexpected death early in 2015.
Thus Blogged Anderson was erudite, humorous, and subtle, as well as full of book recommendations and insight. Anderson exited the stage for Twitter a few years ago, where he may still hold forth. I don’t know. Twitter can be bad for my blood pressure, so I avoid it.
randywallace posted on law, hunting, cooking, and anything else he put in his crosshairs. His posts became less frequent over time; his latest was in August, 2019.
Jane’s Law Blog, which came along only a few years ago, kept us up to date on our appellate courts, but author Jane Tucker lost her server in 2019 and never recovered. Her site is still down.
MS Litigation Review and Commentary by Philip Thomas was for years a go-to site for following litigation stories and developed more recently into a resource for law-office technology and practice. On Monday, he posted that, after 11 years, he is ending his blog with a final post on March 2. I would not be surprised if fatigue is an element in that decision.
There may be other Mississippi non-marketing legal blogs out there that I have yet to discover, and I would like to hear from them if there are. Until then, when March 2 rolls around I guess that this will be the last Mississippi legal blog standing, so to speak. There’s a reason in common that most of those blogs have gone extinct: it’s hard to keep up, even burdensome.
If you’re considering blogging as other than a marketing tool, there are some pluses and minuses:
- Pluses include getting to express your views, coming into contact with a wide range of people you’d probably never meet otherwise, and the motivation to learn more about the subject on which you blog.
- Minuses include demand on your time (a biggie), the need to be mostly accurate and right, and the burden of the whole thing. You can minimize the minuses somewhat by posting irregularly and less frequently, but if you do you will have fewer readers; people like to find something new to read when they click on your site. And if you have only a few readers, what’s the point?
Finally, you have to find a niche. Jane, for instance, met a need by posting decision summaries and describing motion hearings and oral arguments. I have focused on chancery practice. Tom enlightened us on the law, food, the blues, and Mississippi culture. The others mentioned above all catered to readers searching for something specific. And, it’s important to understand that if you’re not a crisp, clear writer like Anderson or Tom Freeland, you probably shouldn’t blog.
Every blogger has the nagging concern about running out of worthwhile things to say. Philip Thomas hints at that in his announcement when he says, “In retrospect, it’s past time.” For me, as long as we have appellate courts burping out opinions twice a week, I have plenty of material to keep me occupied, so I feel (I hope not mistakenly) that I still have something worthwhile to say, and for now I will continue to soldier on.
Those bloggers up there inspired me to undertake this one. It came about after a telephone conversation with another chancellor about how to educate lawyers on compliance with the adoption statute in effect at the time. We talked about an information sheet and a couple of other ideas, but couldn’t come up with anything satisfactory. After hanging up, I returned to my computer where Tom Freeland’s blog was on the screen. A lightbulb went on in my head and the idea became this.
So soon there will be one. For now.
The Spirit of Moderation
August 16, 2019 § 2 Comments
From an address by Judge Learned Hand (1872-1961) at the proceedings of the 250th anniversary of the Supreme Judicial Court of Massachusetts, November, 1942:
And so, to sum up, I believe that for by far the greater part of their work it is a condition upon the success of our system that the judges should be independent; and I do not believe that their independence should be impaired because of their constitutional function. But the price of this immunity, I insist, is that they should not have the last word in those basic conflicts of “right and wrong — between whose endless jar justice resides.” You may ask what then will become of the fundamental principles of equity and fair play which our constitutions enshrine; and whether I seriously believe that unsupported they will serve merely as counsels of moderation. I do not think that anyone can say.
What will be left of these principles? I do not know whether they will serve only as counsels; but this much I do know — that a society so riven that the spirit of moderation is gone, no court can save; that a society where the spirit flourishes, no court need save; that in a society which evades its responsibility by thrusting upon its courts the nurture of that spirit, that spirit in the end will perish. What is the spirit of moderation? It is the temper which does not press a partisan advantage to its bitter end, which can understand and will respect the other side, which feels a unity between all citizens — real and not the factitious product of propaganda — which recognizes their common fate and their common aspirations — in a word, which has faith in the sacredness of the individual. If you ask me how such a temper and such a faith are bred and fostered, I cannot answer. They are the last flowers of civilization, delicate and easily overrun by our sinful human nature; we may even now be witnessing their uprooting and disappearance until in the progress of the ages their seeds can once more find some friendly soil. But I am satisfied that they must have the vigor within themselves to withstand the winds and weather of an indifferent world; and that it is idle to seek shelter for them in a courtroom. Men must take that temper and that faith with them into the field, into the market-place, into the factory, into the council-room, into their homes; they cannot be imposed; they must be lived.
Quoted in The Practical Cogitator, Charles P. Curtis, Jr. and Ferris Greenslet Eds., Houghton Mifflin 1962.
Note: The phrase “right and wrong — between whose endless jar justice resides” is from Shakespeare’s Troilus and Cressida: ““Force should be right; or rather, right and wrong, between whose endless jar justice resides, should lose their names, and so should justice too. Then everything includes itself in power, power into will, will into appetite;and appetite, an universal wolf, so doubly seconded with will and power, must make perforce an universal prey and at last eat up himself.”
To Die For
June 15, 2018 § 10 Comments
The suicides of Kate Spade and Anthony Bourdain last week are a reminder that the pain and agony that torment some to death often lie hidden beneath layers of camouflage that give the appearance of happiness, health, and well-being. We see celebrity and fame, and we imagine joy. We see success and wealth, and we infer inner peace. We see physical beauty and we assume health and healthy lifestyle. Appearances, as they say, do deceive.
It’s no secret that the law is a corrosive profession. The pressures and stress imposed by duty to client and court are enormous. Deadlines carry grievous consequences. Add to that the heavy responsibilities of family, overhead, and finances, and you have a toxic stew that can eat away at and destroy happiness.
Members of the legal profession (lawyers and judges) have a suicide rate 1.36 times greater than the general population.
When the stresses of the profession become overwhelming, it’s easy to feel isolated, to be haunted by the thoughts of failure, and to want an easy out before your weakness is exposed.
But here are three thoughts:
- Everyone is struggling; we just don’t see all that is beneath the surface. You are not the only one.
- Just because you are struggling does not make you a failure. And even if you do fail, that does not make you worthless.
- Silence, secrecy, and shame are seductive, but are destructive over time. Talk about what you are feeling with someone who cares and who will listen. Empathy is a powerful, healing balm. A kind word may enable you to take a first step toward the light.
Depression is a widespread phenomenon. No one is immune. There is effective treatment available for it.
And, finally, let me state the obvious: Suicide is never a tidy exit; it leaves in its wake a tidal wave of hurt, pain, sorrow, regret, and questions that can never be answered. I speak from experience.
Yes, the law is a corrosive profession. But it is not one to die for. If you’re feeling overwhelmed, seek help. Get help. Step back from the brink.
The Honor and Dignity of the Profession
April 3, 2018 § 6 Comments
Not long ago I was asked to say a few words to the Ole Miss Law students who were being sworn in for limited practice in the school’s legal clinics. Alas, I got carried away and said more than a few words, as some of us older lawyers are wont to do. I thought you might find some value in them as you toil about in your daily practice.
You may be asking yourself: Why all this folderol about taking an oath? Why don’t we just get on with it, roll up our sleeves and get to work? Well, I want to give you an idea about it.
When I entered the practice of law nearly 45 years ago, the law was known as a noble profession. A term often heard was that the law was an “honorable profession.” Since then the profession has suffered many bumps and bruises. No need to catalog them here. Misconduct and allegations of misconduct by members of the legal profession from the US Supreme Court to the level of sole country practitioner and everything in between have occurred with dismaying frequency.
Add to this that we are in a cynical era where notions like nobility and honor are openly questioned and even laughed at. So, does this mean that the law is no longer to be considered an honorable profession? Is the concept of honor to be set aside as outmoded and anachronistic?
To decide that we first have to understand what honor is.
One aspect of honor is esteem. We honor and exalt those whose merit makes them worthy of our due regard. Whether the law today still merits the respect and esteem of the public is a subject of debate and analysis beyond the scope of this little talk.
Rather, I would like to focus on the concept of the law as a rule in this nation that relies on the individual honor of its members of its profession and those who invoke it. The law as an honorable profession in the sense that its bedrock and very heartbeat is honor.
And what is honor? Pat Conroy said in The Lords of Discipline that, “I have never had to look up a definition of honor. I knew instinctively what it was. It is something I had the day I was born, and I never had to question where it came from or by what right it was mine. If I was stripped of my honor, I would choose death as certainly and unemotionally as I clean my shoes in the morning. Honor is the presence of God in man.”
Others have said that Honor is like the eye, which cannot suffer the least impurity without damage. It is a precious stone, the price of which is lessened by a single flaw. And this is not to say that honor is easily come by. It has been said that the price of honor can never be too dear, for it is the only thing whose value must ever increase with the price it has cost us.
We think of honor as incorporating Honesty, Fidelity, Candor, Selflessness, Truthfulness, and respect both for the rule of law and the personal dignity and worth of every person, friend and foe alike, with whom we come in contact. We think of an honorable person as one who has integrity, self respect, and dignity. The honorable person is never arrogant or crafty, never seeks an unfair advantage or to lord it over others, never deviates from the truth even when a lie would be to her or her client’s benefit.
Honor is at the very core of what a lawyer and judge must be. Lincoln said
There is a vague popular belief that lawyers are necessarily dishonest…the impression is common, almost universal. Let no young person choosing the law for a calling for a moment yield to the popular belief—resolve to be honest at all events; and if in your own judgment you cannot be an honest lawyer, resolve to be honest without being a lawyer.
If you will read the Canons of Professional Conduct – our ethical rules – every one is based on the concept of personal honor and honesty.
The founders of our republic recognized the vital importance of honor. In the very last phrase of the Declaration of Independence, they “mutually pledge to each other our Lives, our Fortunes, and our Sacred Honor.” Not just honor, but sacred honor.
In the spirit of our founders lawyers and judges stand guard over and fight to protect individual rights and the Constitution that guarantees them. With the founders we stake our honor – our sacred honor – on that proposition. No other profession does, and no other group of citizens does, save the military and those who swear to preserve, protect, and defend the Constitution.
As for today’s rampant and unfortunate cynicism, C.S. Lewis noted that, “We laugh at honor and are shocked to find traitors in our midst.” Indeed, when we attack and debase the concept of honor, we should expect the vacuum to be filled with the dishonorable and dishonest. You can not scrap a virtue and not expect it to be replaced by a vice.
So that’s why in a few moments you are going to raise your hand and take an oath to represent your clinic clients well and to the best of your ability. To protect their interests and to submit your own interests to theirs. In other words, you are staking your honor on your pledge of fidelity to your client.
If you – or anyone in a legal setting – takes an oath with the intention of not backing it up with honor, then it means nothing, and the law is diminished by that act. The law and the rule of law rely exclusively on the personal honor of everyone who seeks to invoke it.
This small act, this oath, is only among the first of many hundreds, even thousands, that you will take or see being taken over the span of a career in the law. It’s easy to become jaded and complacent about it. But I urge you as you move toward your entry into the legal profession never to lose your personal honor, and never to allow the law to be dishonored.
So yes, this oath is a small thing and a bit of folderol. But it means something. It means a lot. It really, truly does. And I hope each of you believes and lives that along with the thousands of us who serve the law.
Is a Law Degree a Good Idea in the 21st Century?
March 19, 2018 § Leave a comment
Philip Thomas at Mississippi Litigation Review & Commentary emphatically raises some serious questions. You can read his take at this link.
Things Judges Wish They had Known Before They Took the Bench
February 9, 2018 § 1 Comment
The National Judicial College’s Case in Point Publication included a piece, “50 Things Judges Wish They had Known Before They Took the Bench.” I thought I would share some of these submitted by judges from around the country, including one from a Mississippi Chancery Judge; can you guess which quote, and from which judge (Hint: no, It was not I).
Before I became a judge I wish I had known …
“Your jokes become funnier, you can jump higher, and you are more interesting after you become a judge. But they aren’t, you can’t, and you aren’t. So don’t believe anything otherwise.”
“That some people will think their Google search is the same as your law degree.”
“That it would be incredibly isolating. Professionally and socially there are so many situations that require me to withdraw to avoid an ex parte contact or avoid what might be construed as an appearance of impropriety … So much of my work is sitting alone with a file and a computer writing opinions, and during hearings you sit alone listening, not talking. It is lonely work.”
“How many times litigants, whether pro se or represented by counsel, fail to provide basic facts necessary to make a proper decision.”
“That folks really would believe that my court would be just like Judge Judy’s.”
“How isolating the job would be. In a small town, the isolation is devastating.”
“Remember that when most parties leave your proceedings, they will probably not remember what you did or what you said — they will remember how you made them feel. Treat every party with courtesy and respect.”
“That the better the lawyers’ performance in the courtroom, the better the judge’s rulings Professionalism and competency are crucial to a fair and judicious system. Yet when I first sat on the bench, I gave advocates too much credit. Now I know better. And now I rule better.”
“I wish I had known (in my earlier life as an attorney) how I sounded to the judge when making an argument. I’d have said less.”
“Even if germane and on point, never — ever — use the term nudum pactum in a full courtroom.”
“I wish I’d known that certain legal terms and phrases like ‘co-equal’ and ‘shall be adequately funded’ seem to be used more like punch lines by many members of the other two branches of government.”
“Good intentions always come with a critic.”
“It’s better to do ahead and do good than to fear lack of authority.”
“Never, NEVER go on the bench with a full bladder.”
The Better Chancery Practice Blog 