The Judge as Grand Inquisitor
December 8, 2014 § 1 Comment
Some judges sit through a trial impassively, leaving counsel to wonder whether hizzoner is paying any attention at all. Other judges take an active part, hurling questions like shrapnel through the courtroom. Still other judges fit somewhere in between the two extremes.
It’s a phenomenon I’ve posted about before here and here.
In the COA case SKL Investments v. Hardin and Torrence, decided November 18, 2014, the appellant charged that the chancellor erred when he “continually mischaracterized testimony [and] interrupted and veraciously ‘crossed’ [SKL’s] witnesses while protecting other witnesses in a manner that hindered [SKL’s] development of its case[.]” [My emphasis] I will leave it up to the reader to look up the definition of ‘veraciously.’
So, did the learned chancellor cross a line in his interrogation in this case? No, said the court, in an opinion penned by Judge Irving:
¶16. … While the record reveals that the chancery court interrogated witnesses and even sometimes interrupted witnesses as they testified, a contextual reading of the record also reveals that the chancery court did not “overstep[ ] its judicial authority” as SKL now claims.
¶17. The chancery court was within its right to “interrogate witnesses, whether called by itself or by a party.” Powell v. Ayars, 792 So. 2d 240, 248 (¶29) (Miss. 2001); see also M.R.E. 614(b). Certainly, it would have been “‘grounds for reversal if the [chancery court had] abuse[d] the authority to call or question a witness[,] abandoning [its] impartial position as a judge and assuming an adversarial role.’” Copeland v. Copeland, 904 So. 2d 1066, 1074 (¶27) (Miss. 2004) (citing Powell, 792 So. 2d at 248 (¶29)). However, “there [was] no requirement for the [chancery court] solely to be a silent observer.” Copeland, 904 So. 2d at 1074 (¶28) (citation omitted). After reviewing the record, we find that the chancery court did not abuse its discretion in its examination of the witnesses. This issue is without merit. Accordingly, we affirm.
There is the oft-cited apocryphal tale of the chancellor who interrupted and took over questioning of a witness, only to be interrupted in turn by counsel, who pleaded, “Judge, I don’t mind you questioning the witness, but please don’t lose the case for me.”
Another point: if you’re going to accuse the judge of going overboard, at least use an adverb that fits the conduct.
WHEN THE JUDGE STICKS HIS NOSE INTO IT
March 4, 2013 § Leave a comment
Judges can be nosy. When no one is asking the question that the judge wants to know the answer to, you might just hear the judge start asking her own questions. I’ve talked about it in a post here before.
In the COA case of Knights’ Piping, Inc. and Knight v. Knight, et al., decided December 11, 2012, the appellant took issue with the chancellor’s frequent and vigorous interrogation of witnesses. The COA, by Judge Irving, found nothing improper in how the judge approached it:
¶14. Benny asserts that the chancery court erred in its interrogation of witnesses during trial. Under Rule 614(b) of the Mississippi Rules of Evidence, “[t]he court may interrogate witnesses, whether called by itself or by a party.” However, “it is grounds for reversal if the trial judge abuses the authority to call or question a witness by abandoning his impartial position as a judge and assuming an adversarial role.” Powell v. Ayars, 792 So. 2d 240, 248 (¶29) (Miss. 2001) (citation omitted).
¶15. While the chancery court interjected numerous times during the trial, we do not find that the court abused its discretion or abandoned its impartial position. Generally, the court’s questions were intended to clear up confusing testimony or encourage testimony from recalcitrant witnesses, which our supreme court has recognized as appropriate circumstances under which a trial judge may question witnesses. See id. at 248-49 (¶30). Additionally, the court gave the attorneys the opportunity to ask further questions of witnesses, if necessary, based on the court’s questions. This issue is without merit.
Lawyers in this district will tell you that I frequently ask questions to clarify or to get the information I feel that I need to make a decision. I always give the attorneys an opportunity to ask questions based on what I asked. Judge Mason, on the other hand, seldom asks questions. It’s a matter of personal discretion and style. In my years of practice, I can say that I saw about every variation on this theme that one could imagine, from active participation in the trial to stony, sweat-inducing silence.
Chancellors will tend also tend to get involved when they become convinced that the witness is being untruthful, or evasive, or that there is some other kind of chicanery taking place. In Knight, the chancellor became so impatient with evasive and non-responsive answers that he began deeming certain answers as admitted. The appellant again took issue, and the COA again rejected his argument:
¶16. Benny argues that the chancery court erred in deeming his alleged non-responsive answers to certain questions as admitted. For example, during cross-examination, the following exchange occurred between Benny and Harold’s attorney:
Q: And, of course, you indicated yesterday that Harold missed 30 days [of work] and so that’s—that’s why you fired him?
A: He also told me—
[THE COURT]: The answer is—for the witness—the witness is being evasive—is that is why he fired him because Harold missed 30 days. That’s the answer. Ask your next question.
Q: When you changed the locks, you denied Harold access to his property, correct?
A: I did not.
Q: Did you give him a key?
A: Couldn’t locate him.
[THE COURT]: The answer is—
[THE WITNESS]: No.
[THE COURT]: —he did not give him a key.
¶17. Based on our review of the record, the chancery court admonished several witnesses regarding non-responsive answers—not just Benny. Furthermore, Benny’s answers to the questions he complains about on appeal were evasive. Therefore, the chancery court did not err in presuming that the true answers would be unfavorable to Benny’s position and deeming his non-responsive answers as admissions. This issue is without merit.
Taking answers as admitted is an extreme measure, but it’s one that can be merited in a situation like the one in Knight, where the witnesses are not forthcoming.
As for the chancellor’s demeanor, it’s a simple fact that judges get exasperated, just like lawyers and parties do. It usually happens after a long, tedious stretch of trial where one frustration accumulates on another until the judge’s patience is exhausted, and he blows a gasket. Yes, it would be better to keep one’s cool, and calmly navigate through the perturbance, but judges are human, and they are focused on getting to the truth of what is the most equitable outcome in the case. Thwarted in that quest, they tend to get testy.
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