This is the ninth in a series of occasional commentaries on the judicial system from the perspective of a District Court judge.
The national news about judges can sometimes be dispiriting. A judge is accused of a rant against a parent for questioning the judge’s decision regarding a visitation request. Another judge allegedly engages in a tirade against a convicted killer, saying he hopes the defendant dies. These and other reports of judges around the country acting badly make us cringe. The conduct is unacceptable. Fortunately these are the rare exceptions.
The fact is that judges usually exhibit an even-tempered judicial demeanor — it just doesn’t make the headlines. Most judges go to great lengths to exhibit a calm presence in court that helps put litigants and their lawyers at ease, and assures everyone in the courtroom that the judge is deciding issues upon reasoned judgment rather than emotion. Good judges around the country understand that a judge’s demeanor helps lay the foundation for the regard given a judge’s decisions. A calm judicial demeanor allows participants in the legal process to feel that their position is being heard and considered, and that a reasoned opinion will issue from the court after the arguments are all submitted.
But engaging the parties in a calm manner, devoid of emotion, can be harder to accomplish than it may seem. The fact is that parties and their attorneys occasionally engage in outrageous conduct. Sometimes the conduct is unprofessional, incompetent or disrespectful. But even in the face of poor conduct, judges have to maintain their composure, and often can’t say what they think; it can be easier said than done.
Lawyer claims he isn’t ready for trial — again
One lawyer, for example, decided he wasn’t going to represent his client because he said he wasn’t ready for trial; he said he would stand silent when the case was called. The problem was that the felony case was one of the oldest on the docket, had been continued on several occasions in the past, and the attorney had already received a three-month extension of time because he said he wasn’t ready on the day when the case had previously been called for trial. On that occasion, the prosecution had subpoenaed over 50 witnesses at substantial cost. Now the defense lawyer was again claiming he wasn’t ready, and that he wasn’t going to participate in the trial even if the case was called and a jury panel summoned.
I could easily have become outwardly angry. I might have been justified if I had raised my voice. I did neither. I calmly told the attorney that we would take a recess, and when I came back if he continued to refuse to represent his client I would find him in contempt of court and impose such sanctions as I deemed appropriate.
Ultimately, I didn’t have to make good on my promise. The lawyer agreed to proceed. Nothing would have been gained by my losing composure.
Laugh or be offended?
Even when lawyers do things that are professionally unacceptable, a judge has to remain level-headed. I told one lawyer to produce certain documents — then I ordered him to do so a second time. Finally, the lawyer said that if I ordered him to produce the documents, he would do so. I didn’t know whether to laugh or be offended — the lawyer appeared to be operating in a parallel universe.
Sometimes lawyers misrepresent their positions to the judge — never a good idea. I had lawyers in one case say absolutely, on repeated occasions, that the defendant they represented was not going to make a claim against the opposing party. Then, late in the case, after the time allowed to bring a claim had run, the lawyers moved to amend the answer to assert a claim against the plaintiff — exactly what they had said they would not do. I could have denied their request to add a late claim in the case. But such a ruling would have prejudiced their client for the attorneys’ bad conduct. My annoyance with the lawyers for their misrepresentations couldn’t be the driving force in my decision. I granted the motion, but made the lawyers pay thousands of dollars to the other side for the extra fees and expenses incurred as a result of the late claim. As it turned out, the late claim was a good one. The jury ultimately awarded the defendant well over a million dollars for the plaintiff’s breach of contract.
Annoyance, anger and upset don’t have a place in a judge’s decisions — they are a luxury that judges can rarely afford. Judges often have to look past the conduct of the participants in order to rule correctly.
Sometimes the challenge comes from an attorney who is only semi-competent. I had one lawyer who represented clients who had been terribly mistreated in a fraud that sent them into a downward financial spiral. By the time the case came to trial, no defendants appeared. Almost all of the original parties had been jailed, or were no longer in business. Getting a judgment meant only presenting the evidence at trial without anyone to object or cross examine.
But instead the lawyer presented no testimony and made no argument to promote her client’s case. She offered documents into evidence, but didn’t offer any explanation why the documents were relevant or where in the pages and pages of documents pertinent information could be found. I issued an order for the lawyer to reappear, and to offer testimony regarding her clients’ case so that the documents she submitted could be put in context and properly understood.
There are limits
When she reappeared she began by stating, “Well, if you had bothered to read the documents ….” This was one of the very few times that I showed my offense. I told the lawyer that it wasn’t the court’s lack of diligence that was the problem, but the competence of her submission. There are limits that every judge has to an attorney’s poor conduct, especially when the conduct is accompanied by disrespect.
Pro se parties, those individuals who represent themselves, can be among the most difficult litigants. Nevertheless, judges have to exercise special restraint in dealing with people who may not know what they are doing, or who are unfamiliar with what constitutes acceptable conduct in the legal process.
One pro se litigant I dealt with for several years on multiple matters had mental health issues. Although I ruled in her favor on several motions that came before me, she would write the most scathing denunciations when I ruled against her. She was also hard on my clerks during her telephone calls to my office.
But I continued to try my very best to help this litigant, despite her conduct. The statute under which her cause of action arose allowed me to appoint her an attorney, but the legislature didn’t provide any money with which to do so. With the help of one of my colleagues, I found a well-respected lawyer from a major firm to represent her without charge. After a while, she fired him. When I urged her to retain his services because he could help her, she agreed. Then she fired him a second time.
Finally the matter came to trial, with this woman representing herself. I found that whatever mental health issues she had didn’t interfere with her ability to conduct herself at trial. She proved to be an intelligent, dogged cross examiner. I found liability in her favor.
Equanimity in the face of challenges
The list of challenges a judge faces is never ending. There are difficult lawyers, unscrupulous litigants, people with mental illnesses, and other personalities. There are lawyers who don’t do their jobs well, and lawyers who misrepresent their positions. There are litigants who exercise restraint in dealing with their opponent, and those for whom restraint is a foreign concept. Throughout it all, judges usually maintain their composure, remain poker faced when they want to shake their heads in dismay, and respond quietly.
We aren’t perfect. Sometimes judges can’t help but show their annoyance, or anger. Some judges are better than others at exercising restraint. But the system is served best when we handle the challenges before us with quiet equanimity. Easy words to say — now I have to go out on the bench and live them.
Mel Dickstein is a judge in Hennepin County District Court, where he handles a mix of civil and criminal cases. He is a former partner in the law firm Robins Kaplan.
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