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Tuesday, December 12, 2006

Inside the robes

Every lawyer who has ever stood before a judge, in any capacity, has thought to him- or herself: "I could do that." Every single one.

To which the appropriate response is: "Yeah, but ...."

Three long war-stories follow, with associated musings.

*******

I've had quite a few nice desks and desk chairs in my career. But I've never had one with flags in back. I once had a corner office in a downtown Houston skyscraper, but I've never had a 20-foot-tall, 60-foot-wide expanse of white marble behind me while I sat on a dais in a cathedral built to the rule of law. I once had the extraordinary, thrilling privilege of being a trusted law clerk for someone whose signature could speak for a federal court of appeals, only a step below the U.S. Supreme Court, and whose writ ran from the far tip of Florida to El Paso, Texas — but my own signature has never been more than that of an advocate for a litigant. In my younger days, when I cut a much trimmer figure, I had a couple or three well-cut, well-made suit-and-tie ensembles. But no power tie I've ever worn implied a fraction of the power of a simple black robe woven from a cotton-polyester mix.

Let's suppose you're a new judge. You've raised your hand, you've sworn a simple oath. Before that, the voters of your county, or perhaps the senators of your state or of the United States, have thrust a thumb up or down while your name was the subject of deliberation. But in only a very few instances has that deliberation been truly deliberate, for to tell the simple truth, most judicial candidates or nominees are rubber-stamped once they've jumped the hurdles to get to the point of electoral or legislative confirmation.

"I could do that," think the lawyers appearing before them, "I could be rubber-stamped. Then I could just swear that oath — easy-peasy! And then when I crooked my finger, a sheriff's deputy with a pistol on his hip would put the cuffs on that lawyer or this litigant, and then (clank-clank!) take them right to jail.  Show me no contempt, baby! I'll teach you! ...."

Except it almost never, ever works that way. Oh, the deputy would indeed obey that instruction. But the brutal, cold fact of the matter is that except in the most exceptional of circumstances, you won't give that instruction. Because suddenly those flags behind your chair, that dais, the expanse of white marble or plain burled Texas oak, the gavel, the cotton-polyester robe — holy cow, how those things all can choke!

The pomp, the circumstance, the "Your Honors" and "May it please the Courts" — my gosh, even the fact that people capitalize the title of the office you hold! — all that settles around you, with decades and centuries of accrued, accreted, embedded responsibility.

What a serious, lonely business it is — being a judge.

*******

First war story:

I mentioned in a recent post how infrequently — meaning never — I've actually seen or heard a trial judge bang his or her gavel. The gavel, like the robes and the dais and the bailiff and the flags, all remain powerful and important and essential symbols of authority. The power they symbolize is indeed real, but the obvious displays of it are mostly left latent.

But some months ago, in chambers, during some slow moments in the fine grind of justice, I caught a local judge in a reflective mood. He started musing over how it had felt to him on one of those very, very rare occasions when he'd had to use a fraction of that latent, vast power — when he'd found his patience exhausted, his stamina stretched near to breaking, and the dignity of his office (not him, but his office) insulted beyond the bearable.

This judge has had his seat for a dozen years. Because of the nature of the court over which he presides, he sees the great unwashed masses, the busiest and often least-capable lawyers, and the constant press of high-volume, form-pleaded, and mass-produced justice every day of the week, fifty or so weeks out of every year. He's a patient man, and he normally runs his courtroom with the wit and flair of a confident circus ring-master. But this day, in chambers, with his guard down, he was musing — one professional to another, albeit only one of us had a black robe hanging from the hook leading to the courtroom — about an occasion a few weeks earlier that had marked the very first time in his judicial career he'd held someone in contempt of court. It gradually dawned on me that this judge was thinking aloud, second-guessing himself in my presence, as he tried to figure out how he might have handled things differently. I know that judges talk to each other about such things, but to be taken into his confidence, to be asked for my own opinion on that topic, was as high a complement as I've ever been paid. And as it turned out, after hearing the whole story, I had nothing constructive to tell him — except that I'd probably have laid some serious smack down a lot sooner than he had.

The universally true — yet still stunning — fact is that as a general rule, judges have more respect and respectful awe for their authority than anyone else has! For everyone else almost all of the time, it's theoretical authority. For them, though, they wear it with the robes, and it's as ever-present as the flags behind their chairs.

*******

"Ah," you say, "but power corrupts, and absolute power corrupts absolutely!" It wouldn't take you long, I'm sure, to find instances described in the pages of BeldarBlog in which judges and justices have been drunk on their own power, out of touch with reality, and profoundly unwise. And you'll readily find, among my pages and posts of judicial critiques, many more instances in which I think particular judges or panels of judges have simply gotten things badly wrong, despite the best of intentions.

Which is to say: They're human, inside the robes. They're imperfect, and most of them are acutely, intensely aware of that fact. Most of them spend a lot more time worrying about it, and trying to correct their imperfections, than most folks would ever imagine. And even the most high and mighty of them is still capable of being human.

*******

Second war story:

Twenty-five odd years ago, during my first year of practice when I was about 23 years old, I was waiting in the ante-room outside the office of the local federal judge who was reputed to be most habitually drunk on his own power and pomp, who looked like a central-casting example of the imperious judiciary, and who was known far and wide for flaying ill-prepared lawyers in open court. This was a routine pre-trial conference on routine scheduling matters in a routine case. But His Honor's secretary stood up from behind her own imposing desk, and came around to whisper in my ear, "Judge ___ wants to speak with you before he sees everyone else."

Say what?

She led me into the sanctum sanctorum, the judge's private office, where he sat in all his leonine glory. Consistent with his reputation, this judge wore his robes even in chambers, and I was pretty sure he had his suit-coat on underneath.

"Mr. Dyer," said this judge, "the clerk of my court has brought to my attention the fact that you've apparently neglected to return to him the signed and notarized oath form confirming your willingness to submit to the rules and requirements of the Bar of the Southern District of Texas. That being true, even though you've submitted the application and paid the fee and been approved by the Court and taken the verbal oath and gone through the installation ceremony, you're not, technically, authorized to appear before me here today on behalf of your client."

Oh ... my ... sweet ... Lord, I'm thinking during the space of the next three heartbeats, having left my poor client without counsel, I'm about to be thrown out of the courthouse into the street, whence word will rapidly spread to my law firm, whose partners will have someone new to sit in my office by noon tomorrow, undoubtedly someone who's not such a complete fool as I've been

"You'll tend to that before today is done, won't you?" asked the judge. I gulped and nodded, too stricken to speak aloud.

And I suddenly I had this epiphany, this rush of realization: This sixty-something-year-old man, cloaked in the robes of a United States District Judge, almost glowing in all of the authority and power inherent in and implied by that title, a man who probably wore a necktie to dinner, a man whose grandchildren probably believed he sat at the right hand of God with lightning bolts clutched casually in his own right hand — this judge could still remember what it was like to have been a twenty-three year old lawyer who'd made a stupid personal blunder of no substantive consequence, but one that could be very, very embarrassing if not pardoned by an act of undeserved judicial grace.

He pressed the buzzer on his desk: "Send in the others," he commanded. In trooped a half-dozen other lawyers, each of whom was wondering what the hell the judge had wanted to talk to me about privately before he brought them all in. I could see the question in their eyes, their arched eyebrows, their puzzled glances as they arrayed themselves in the chairs around the judge's massive desk.

Oh, nothing important, I answered them in my head, He was just being a really decent, kind human being, cutting me a little slack that couldn't conceivably hurt you and your clients. Just about every stroke of his pen quite literally determined the fates of people and companies, the rich and the poor, the humble and the mighty — but he'd taken a moment out of his day to enforce the rules to which he was devoted in a kindly, compassionate, and private fashion for the benefit of a young lawyer entirely unknown to him except as an anonymous, fledgling brother at the bar.

I could have kissed him. But that would indeed have resulted in me being thrown in jail.

*******

Third war story:

One of the worst judges I've ever appeared before was one of the nicest people I've ever met.

It's part of the nature of a judge's job that he or she has to rule against someone in the course of ruling for someone else. More precisely, they're ruling against someone's position, someone's argument, someone's claim or defense. I've never seen a judge point a finger at a litigant or his/her lawyer and say, "Hey, buddy, you're a loser, get outta my court!" (I certainly have seen litigants and lawyers who deserved that, however.) But in any event, like the "honest umpire" of which Chief Justice John Roberts spoke during his confirmation hearings, judges are obliged by their job descriptions to call balls and strikes and, sometimes, call someone out and someone else safe at the plate.

But it's entirely possible to be a smart, hard-working, dedicated professional, and a compassionate, wise human being — and yet to lack, or find it hard to summon, the ability to tell people: "Tough luck, I've decided that you lose."

So it was that in the late fall of 1987, I was a Baker Botts senior associate sitting second-chair in a state-court securities fraud jury trial that had already run for six full weeks. The first-chair partner — a superb trial lawyer named Joe Cheavens — and I were very well prepared for the trial, and we had been  eager to see it move briskly. Our opposing counsel, by contrast, was very smart and exceedingly clever, but he and his team were not very well prepared when the trial started. With each passing week of trial, however, as our opponent fumbled around putting on his case, our amiable and indecisive judge gave him the time to figure out what his case ought to be, so that his lack of preparation was becoming less and less of a liability. And although she was certainly trying to be fair, the judge had already reversed herself on several key rulings, and then had reversed herself at least once and sometimes twice again on some of them. Our team was beginning to show serious bruises around the head and shoulders, and the trend was decidedly unfavorable.

Our corporate client's intentions and motivations in complicated past transactions were under scrutiny, so among the key witnesses at trial were the deal lawyers who had advised our client in those transactions. One such witness, fearing (with good reason) the possibility that his and his firm's actions might become the subject of later malpractice claims, brought along one of his partners — a "Litigator," a young woman probably five or so years senior to me — to sit in the audience to keep watch. And Joe Cheavens was indeed doing his considerable and very best to show that Mr. Deal-Lawyer had been conflicted, incompetent, or worse in his work for his former (and our current) client.

During a break in Mr. Deal-Lawyer's testimony, I looked out one of the tiny rectangular windows in the doors leading from the courtroom to the outer hallway, where I spied the "Litigator" sitting on a hallway bench. I noticed that she was engaged in earnest conversation — with two of our jurors.

Quick! Find the bailiff! Quick! Have the bailiff find the judge! Quick! Ask the judge to direct the bailiff to snag the "Litigator" away from those jurors and into the judge's chambers. Grab the court reporter, then grab opposing counsel, for a frantic huddle. "What on earth were you talking about with those jurors just now?" demanded the judge.

"Well," said the "Litigator," "the jurors all knew from the introductions Your Honor made that I was a litigation partner at Mr. [Deal-Lawyer]'s firm. And so one juror was just listening, but this other juror approached me with a legal problem he had. See, he's an officer in his Knights of Columbus chapter, and they'd contracted for a dance band to play at one of their functions, but then the band didn't show up. So he was asking me about the various elements of breach of contract, and fraud in the inducement, and measures of damages —"

"You're aware that those are all legal principles," interrupted the judge, "on which I'll be charging this jury in this case?"

"I ... I suppose so, but —"

"And in the midst of Mr. Cheavens' cross-examination intended to destroy the credibility of your partner Mr. Deal-Lawyer, you've seen fit to offer legal advice to two of our jurors on those very issues?" asked the judge.

"Well, then, I ... I guess I really shouldn't have done that." She sniffed. "And I guess that I really shouldn't have told that juror that because I'm a good Catholic like him, my firm and I would take on his Knights of Columbus chapter's case against the dance band as a pro bono matter, should I?" finished the "Litigator" (lamely).

Duh.

The mistrial motion, and the ruling granting it, were foregone conclusions. Of all the trial judges I've seen in my career, this judge had the worst judicial temperament — which is to say, the greatest reluctance to rule, and to declare one side or the other a winner and the other a loser — of any judge that I'd seen before or that I've seen since. But pushed by these extraordinary circumstances into making a definitive ruling, this good-hearted, intelligent, well-meaning, and unfortunately un-judicial woman nevertheless gathered her resolve and did that which her duty required.

She didn't grant the mistrial because she was afraid of being reversed by the appellate courts if she didn't. (Although she would have been.) She granted the motion because it was the right thing to do, even if it was an extremely difficult ruling to make. The weight of her robes — the weight of authority implied by those robes, the accumulated force of the system revering the rule of law of which she was an intrinsic part — compelled her to reach that result. "You've got to start over," she told the plaintiff's counsel — much against her personal preference, which was to avoid controversy and to avoid resolving controversies.

"But — but — but —" sputtered our opponent, who certainly knew how the trial had been trending, "it wasn't my fault!"

"That's true," said Her Honor.

"And that will mean six weeks of work, all that time, all those legal fees and expenses on both sides — all wasted!"

"That's true too," said Her Honor, "And I hate to say it, but: That's tough."

*******

What an incredible tightrope we ask our trial judges to walk! "Be firm," we insist, "but be unfailingly polite. And," we add, "give everyone a full, fair chance to be heard. But don't waste time." Uh-huh. "Show super-human dispassion," we insist, "but don't lose your humanity. Got all that?"

Thousands of men and women — folks who regularly step into their boxers or their knickers one leg at a time, who had to throw away a burnt piece of toast this morning because the toaster malfunctioned, whose kids broke their next-door-neighbors' window yesterday, and whose necks are developing skin rashes from those damned cotton-polyester robes — answered that call today. They will again tomorrow. And they will again the day after.

Oh, sure: Any ol' lawyer could do that.

But most of us — don't.

Posted by Beldar at 11:42 PM in Law (2006 & earlier), Trial Lawyer War Stories | Permalink

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Comments

(1) Kent made the following comment | Dec 13, 2006 9:40:33 AM | Permalink

Love the war stories.

But you never completed the first one. What was the act that finally, after twelve years on the bench, exhausted the judge's patience and compelled him to find someone in contempt?

(2) DRJ made the following comment | Dec 13, 2006 1:40:19 PM | Permalink

Your experiences and impressions mirror mine from West Texas. The judges I've known - professionally and personally - take their roles very seriously. It's not the very few arrogant and power-happy judges that cause problems, it's the "amiable and indecisive" ones who drive me crazy.

(3) Beldar made the following comment | Dec 13, 2006 4:19:13 PM | Permalink

Kent, if the first war story seemed incomplete, I must have told it wrong. I didn't intend to focus on the bad actors' specific conduct.

What was striking to me about the whole incident was that this judge — one with many years' experience presiding over a court that might be expected to have generated many over-the-top disputes among both lawyers and litigants — had only had occasion to make one contempt of court citation from the bench. And when he did so, he found it profoundly unsettling, even though he absolutely believed his action to be justified and rational outside observers (like me) agreed. His respect for his office's inherent power to punish contempt of court had made him extremely reluctant to use it.

It's also interesting that this judge very effectively uses a whole bag of other "tricks" to keep his crowded courtroom calm and his congested docket moving. A large number of those techniques involve hints, nudges, winks, comic asides, veiled projections and predictions, off-the-record chambers conferences — in short, lots of things that fall far short of explicit judgments and orders and rulings. At first I thought he was just trying to avoid making rulings that would be subject to appeal, and that may indeed be some part of his motivation. But beyond that, he takes justifiable pride in generally being able to keep the wheels of justice turning without having to make overt use of more than a fraction of his power most of the time. And that's remarkable, and admirable.

(4) Gayle Miller made the following comment | Dec 14, 2006 11:17:22 AM | Permalink

Beldar, I am so happily recommending your blog to all my numerous friends in the legal community (I'm a paralegal of VAST years and experience) and they are all absolutely delighted with your work.

You are a must visit site for me these days and I thank you for the times I've popped on over to your blog for a few minutes of stress relief - which act has also, incidentally, saved the life of a certain 26-year old associate a few times. He's both the child and the puppy I never had and like a puppy, he still needs considerable "paper training"!

(5) ELC made the following comment | Dec 14, 2006 12:35:08 PM | Permalink

Thanks for the great stories. I'm glad you're back blogging.

(6) Ms. Judged made the following comment | Dec 15, 2006 3:40:45 PM | Permalink

For the last 18 years I have been one. For the 14 before that I stood before many.
Thanks for the insight and understanding.

The overwhelming number of judges struggle mightily to follow the law and hope that a just conclusion will follow.

Holmes tells us though that doing justice is not the primary obligation of the judge. Applying the law is.
It is strange but true that they don't always amount up to the same thing.

No war stories, but one of my favorite sayings to end my participation: "Every ruling a judge makes produces two things; an enemy and an ingrate.".

Heh. Sorry Glenn.

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