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 Thing About Judges …

November 7, 2013 § 5 Comments

Phillip Thomas has an excellent post on his blog about judges and how they are perceived by lawyers who come before them. Although it is framed in the context of the epic Eaton v. Frisby litigation, there is truth there for every lawyer who ever has to deal with a judge, which would be an overwhelming percentage, I am sure.

Most often, in my experience, lawyers view judges based on memorable experiences, good or bad, and not on the judge’s total body of work. For instance, the judge who yells at you for wasting an afternoon on a meaningless motion is perceived quite differently from the judge who kindly calls you into chambers and points out that, in the future, you should not waste everyone’s time. Those are what sticks in the mind, not the whole history of mundane, routine matters that the judge handles by the dozens day by day.

As Mr. Thomas points out, some lawyers become dark conspiracy theorists about judges. They see a personal animus in every adverse ruling. They attribute bad results to the judge’s dislike for where the lawyer or client came from, or the color of suit he wore, or that the judge hates lawyers who represent certain kinds of clients.

The thing about judges is that we are just like you, with our own personality quirks, points of view, ways of approaching things, likes and dislikes, patience and impatience, and on and on. Each judge has to make a decision based on the law and the facts, no matter how well or poorly presented, no matter how thorough or slapdash the job done by the lawyers, no matter whether either lawyer bothered to come equipped with some authority for a decision. Faced with that smorgasbord of factors, some judges react like Saint Francis, and some like Jack the Ripper.

It’s true that some judges are more energetic than others, some are more intelligent than others, and some are more persnickety than others. But what has impressed me since I took the bench is that all judges — within those parameters, and within the sphere of their own personalities — are dedicated to getting it right.

We don’t always get it right, though. Judges are not perfect, and we are not required to be. That’s why we have appellate courts.

Thank goodness.

DECISIONS, DECISIONS, DECISIONS

August 25, 2011 § 1 Comment

It’s the end of a grueling three-day custody trial. The judge has recessed and will render a bench opinion at the end of the recess. You and opposing counsel are tired of the case, of fussing with each other, of the judge, of being out of the office, and of dealing with the clients. The judge gave the attorneys the option of a bench opinion or a written opinion later, and you and counsel opposite elected to end it right then and there.

Did you make the right choice? Maybe not.

The New York Times published a fascinating article on August 17, with the title, “Do You Suffer from Decision Fatigue?

I encourage you to follow the link and print a copy. It is worth a read for every lawyer and judge to help understand how decison-making ability degrades with accumulation of decision-making, and how scheduling and trying matters may affect their outcome.

The study shows how the act of making decisions actually drains the brain of energy through the course of a day. Initially, the brain, full of energy and fresh, tackles decision-making with ease. The more decisions the brain is called on to make, however, the less energy it has available to devote to the task, and performance degrades. It’s like starting off on that jog through the park full of vigor and energy, and winding up panting and walking on jellyish legs to your car three miles later.

The study also says that blood glucose levels have an effect on decision making. The lower the blood sugar level of the decision maker, the more the decision maker suffers from decision fatigue. Decisions made after meals and snacks are, as a result, better reasoned and more true to the facts and law.

So what are the implications as you plod your way to the end of that stressful trial? Consider:

  • It’s the judge’s job to make tough decisions every day, and quite often many times through the course of a day. Decison-making is not confined to the final outcome of the case. Decisions must be made objection-by-objection, and often in rapid-fire fashion. To top it off, good lawyers making strong legal arguments intensify the process.
  • It’s true that judges are professionals, and that decision-making is part of the job, but judges are human, and are subject the to same fatigue factors as others.
  • Keep in mind that the judge is not only depleting energy with decision-making while on the bench. The judge is paying attention, evaluating evidence and testimony and making notes, all of which in combination takes its own, separate toll. 
  • As an attorney, you can reduce wear and tear on your judge’s psyche by reducing the number of objections and preliminary matters you call on the judge to decide. 
  • If you anticipate that a witness will generate contentious argument and require rulings on admissibility, it’s probably best to tackle those early in the day before the judge has begun to wear down.
  • You might want the judge to take the final decision under advisement, which allows the court to delay the decision to a time when the judge is more refreshed and capable of producing a better result.

I can tell you from experience that patience and insight both wane over the course of a taxing trial. I’ve remarked more than a few times to my wife after a trial that I was as worn out as if I had been one of the trial lawyers. You need to take that into consideration when you plan out your day in court.

THERE ARE WORSE JOBS THAN BEING A LAWYER

January 14, 2011 § Leave a comment

CareerCast has rated 200 jobs for 2011, ranking them from best to worst.  You can read the complete ranking here, and their methodology is here.  The jobs are ranked and assigned an overall score using a combination of criteria, including salary, hiring outlook, stress, physical demands and work environment.

I’ve gone through the list and selected some jobs of interest to the legal profession, some directly law-related, and some purely for comparative purposes.  The number in parentheses before each job title is the job’s rank.  The number following each job title is the job’s stress factor, which I have included so that you can compare your profession’s to others.

The top three most desirable jobs are (1) Software Engineer 10.400, (2) Mathematician 12.780, and (3) Actuary 16.040.

The highest law-related job is (13) Paralegal 12.650.  Next comes Court Reporter at (31) 18.560. 

And another legal job does not show up until the 50’s, where Judge 21.390 pops up at (53). 

(82) Attorney 36.110 is the next and last job of the legal-judicial field. 

Some jobs rated above attorney are:

(10)  Dental Hygienist 12.070

(18)  Parole Officer 12.550

(32)  Chiropractor 13.580

(68) Clergy 21.26

Some jobs rated lower than Attorney are:

(83)  General Practitioner Physician 25.650

(92)  Psychiatrist 24.420

(94) Registered Nurse 30.140

(101)  Surgeon 16.32

(114) Senior Corporate Executive 47.4

(121) Commercial Airline Pilot 59.530

(140) Bartender 13.070

The worst three jobs are (198) Lumberjack 40.90, (199) Ironworker 31.270, and (200) Roustabout 26.430.

I did not find Chancery Clerk on the list.  Does that mean that that job is ranked lower than 200 (Roustabout)?

It was no surprise to me that the stress level for Attorney is as high as it is, even higher than a general practice physician.  But cleaning plaque from people’s gums and rooting around in their mouths is rated higher than any legal job?  Sheesh.

ATTACK OF THE KILLER EARWIGS

September 1, 2010 § 1 Comment

Bedbugs

The latest fad in the anxiety/nightmare industry is bedbugs.  Seems like every media outlet has close-up photos of the little beasts the size of shetland ponies roaming mattresses across the country in cornucopious profusion awaiting fleshy morsels to chomp off of unwary humans. 

In Chancery Court our “bedbug” is the dreaded earwig.

Uniform Chancery Court Rule 3.10, entitled EARWIGGING THE CHANCELLOR PROHIBITED, provides in part: 

“No person shall undertake  to discuss with or in the presence or hearing of the Chancellor the law or the facts or alleged facts of any litigated action then pending in the Court or likely to be instituted therein, except in the orderly progress of the trial, and arguments or briefs connected therewith.  No attempt in any manner, except as above stated, to influence the Chancellor’s decision shall be made.  No person shall send any written communication to the Chancellor concerning a pending action in  the Court without delivering or mailing a copy of that communication to the opposing party …”   

The language about written communication and copy to the opposing side has given rise to a curious practice among some attorneys that can be illustrated in the following scenario:

Lawyer A sends a letter to the Chancery Judge describing the scurrilous actions of the opposing party, including pillage,  wantonness and rapine.  There in the lower left-hand corner of the letter is the notation “cc:  counsel opposite.” 

When the judge questions the propriety of the letter, Lawyer A responds innocently that he complied with the rule because he sent a copy to opposing counsel.  

With all due respect, if any is due, that practice is undoubtedly in violation of the rule and is, without question, earwigging.

Potential earwigs

The provision for copy of written communication to opposing counsel includes no exception to the preceding two sentences prohibiting communications about the merits of the case.  It simply means that, if communication by letter is proper, as where it is necessary to transmit a copy of an agreed order, then a copy of the proper communication must be sent to opposing counsel. 

By the time that opposing counsel has received a copy of the ex parte correspondence, the damage has already been done.  The bell cannot be unrung, as the adage says.  The judge has heard one side alone on the matter, and the judge’s impartiality and independence is in question from then on out.  If the judge rules for the side that sent the letter, was the judge unduly influenced?  If the judge rules against the side that sent the letter, was the judge trying to lean the other way to prove impartiality?  We can never know what might have been because the ex parte communication has called the judge’s impartiality into question.

In my court, if you have allegations to make on the merits, put them in the form of a pleading and set the matter for hearing, and I will make a judgment after hearing both sides.  Don’t poison the well that both parties have to drink from.

If you introduce the dreaded earwig into Chancery Court, prepare to be fumigated.

Genuine earwig

Genuine Ear Wig

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