The Tension Between Lawyers and Judges
This is a difficult topic for me. I just deleted my first page, for the second time! Back I go to the blank page. (And I assure you this is not any of the judges I regularly appear before. I hope they accept in good fun that sometimes this is the way a judge appears to us. I just searched Google Images for “angry judge” and this is what I got. j.b.h. 3-4-2012)
Last week a thought hit me with full force. It stopped me in my tracks……………………………………………………………………………………………..
MANY JUDGES DO NOT UNDERSTAND MEDIATION, OR ME! This fact makes cases take a lot longer and be much more expensive than they have to be.
What can I, and any good lawyer, do about poor communication and rapport with judges? I wish I knew. It would make life easier for my clients, my opponents, the judges, and me. I think I understand the problem a lot better than the solution:
1. First, lawyers and judges go to different Continuing Legal Education classes. The judges are taught the “inside stuff”, and they, especially the Family Court Judges, come back with new twists and interpretations of common issues. Family law changes more than some other areas, and the legislature and Supreme Court are the source of that.
2. Of prime interest to judges are methods they can use to avoid reversal on appeal. A small percentage of judges seem to get pleasure in making the lawyer and unrepresented party look and feel foolish. Others make voluminous and largely irrelevant findings, under the theory that if the appeal court can find something in the findings to uphold the lower court, the judge can avoid being overturned. Most judges are “risk averse”.They certainly do not require, or even encourage, technical innovation.
3.Occasionally a judge appears as a speaker at CLE, and we should always listen to them carefully. But, judges and lawyers live in different worlds.
4. A judge who has not been a lawyer for decades often seems to forget what advocating for a party is all about. They often are not interested in my telling them what I intend to present, or why (opening statement), and what solutions I propose. And, their body language shows that closing arguments at the end of a tiring hearing are usually NOT appreciated. They see advocacy as us “getting in the way”. They wrongfully assume my advocacy is “blind advocacy”. I can assure you it is not.
5. JUDGES DON’T GO TO MEDIATIONS! So, they do not understand the ebb and flow, the tips, tricks, subtleties, joys, benefits, the profound sense of accomplishment, and the challenges, that become apparent only after one attends dozens, then hundreds, of mediations. And, our accomplishments in mediation cannot be appreciated by judges because they are not allowed to know what goes on there. Mediation is confidential. Judges listen to the disputed evidence, decide, and move on to another case. They are, in a sense, dictators. Mediation is democracy. Some tough, hard-bitten, trial attorneys lament the mediation movement as a step backward. I disagree, especially in the Family Court setting, but I have also successfully mediated “seven figure”, and “high six figure”, monetary settlements without ever filing suit. That saves tens of thousands of dollars in litigation expenses and months and years of delay.
6. There even exist judges who “do not believe in mediation” and do not order it. Others encourage the limited view that mediation is essential only for “children’s issues”, leaving unresolved what to do with the house, the cars, the debts, and alimony claims; as if these issues do not impact the children!
7. Some judges do not care if the lawyers go to the mediation, even though when they do, mediation is the most important part of the whole process. Who in their right mind would leave their lawyer home for the most important event in their divorce case? Understanding mediation takes brains, imagination, humor, daring, and compassion. These qualities are lacking in some judges and some lawyers.
8. And, other judges fail to realize that most lawyers are abysmally bad at “mandatory face to face settlement meetings” without a mediator. And they do not care that we abhor those meetings. Judges expect us to be adversaries and tend not to foster collegiality.
9. And, judges have their favorites. I once complained in vain that the other lawyer showed up late to five hearings in a row in the same case, costing my client and me hundreds of dollars. That lawyer did not get even a “steely eyed squint” from the judge. I would have appreciated even mild chastisement, since I was on time for every hearing. How does the on time lawyer explain that to his client?
10. Court ordered “face to face meetings” force the lawyer to look like “the enemy” to his own client because the lawyer has to point out all the risks and weakness in their own case to his client, causing the client to ask, “Whose side are you on anyway?” I once achieved a fine compromise settlement in a very difficult case only to get fired the next day when the hysterical client called to advise she figured out I had been brainwashed by the other side. Boy, could I have used a strong mediator that day. Such mediators are the salvation of the lawyer with the “difficult” client. Good mediators engender trust in the litigants, and they back up the lawyer who has to give bad news to his client.
11. Even the judges who know me well do not seem to realize that my personal standard of fairness is higher than any ethical “standard” the State Bar can impose on me. I will not lie to an unrepresented opponent. I will work hard to understand their complaints against my client. I will do what I can to get my client to avoid control and emotional abuse. I keep the children in mind constantly. If I cannot represent the client in good faith, I will move to withdraw as counsel.
12. There once was a Family Court Judge who would not let lawyers withdraw as counsel. He loved to assert his control. He would not give me the respect of realizing that I would never move to withdraw without good reason. Sometime it is because the client, simply, will not pay, but usually it is behavior of the client the lawyer cannot condone. We are not slaves who should have to work for free, unless we choose to do so, which I sometimes do. Keeping a lawyer and disturbed client together creates a serious risk of harm to that lawyer.
13. Most judges, but not all, are polite to the people who appear before them. Two judges I appeared before, both now deceased, were always meticulously polite to the people who appeared before them. It was amazing to watch. In their place I think I would lose patience with the unprepared or inexperienced lawyer, the unrepresented, and certainly the person accused of a despicable crime. But, these two judges were so masterful in this regard so that even when they ruled against you, they seemed to feel bad for you. I always felt these judges considered my point of view and weighed it against my adversary’s. Being treated with dignity by someone with power over you makes you feel human. The “gotcha judge” or the “too busy judge” does not show respect to the litigant, who leaves the experience bitter and humiliated. I felt the same way in the Air Force. The “Lt. Calley’s” of the world made it miserable for those below them.
14. I have tried to build my rapport with every judge, by being prepared, by being respectful, by ALWAYS telling them the truth, by doing my assigned orders promptly, by filing and answering discovery requests timely and completely, by calling and writing the other lawyer many times before filing a motion to compel discovery, and by bringing the judge innovative solutions and theories. Not only do they often seem not to appreciate these things, but they ignore and discourage innovation, and they often do not penalize the party or attorney who ignores these standards. They seem to expect mediocrity, and do not penalize it.
15. What part of these problems is my fault?
That answer is clear.
My part in this is my cocky certitude. The very thing that helps me get up each day and do this frustrating and irritating work is off-putting to a judge who wants to be in control. I need more tact, patience, and skill at communicating with and convincing the judge. I try, really (!) but my track history is that when I have accurate facts, my judgment has been excellent. When my client follows my advice, the case usually works out. I radiate that confidence, and it does not sit well with some people. (And I wish I were tall and handsome too!)
16. The problems with mediation, as I have said before, derive from the very first pilot project where mediation was started “on a shoestring”. It was limited to “children’s issues, and lawyers participation, even as mediators, was discouraged. That attitude is pervasive in certain parts of the State.
17. And, there are just too many lawyers and judges who lack mediation skills and confidence in mediation. I have written other articles on this subject. All we can do here in Central WV is the best we can to make mediation work here.
18. And, of course, the judicial system is, by definition, an “adversary system”, so the law student does not learn negotiation, collaboration, compassion, and innovative thinking. They are taught “by the book”, and “by the book” is not a collaborative effort.
19. Even as my relationship with other family law practitioners improves, as we learn to work together, my frustration in working with judges is apparent. Perhaps as generational changes occur, the attitude of judges, and the lawyers who appear before them, will evolve into a less “adversarial” approach. I wish I could be more optimistic.
20. As long as I am part of this system, I will try to change it for the better.
This post was written by Burton Hunter