Tuesday, November 1, 2011


What should be required of a lawyer who wants to be a judge? What are the mandatory makings of a "good" judge? What type of person should the aspirant be? What ingredients, if missing, preclude the bearings of a jurist?

A judge hears all the witnesses and any other evidence presented by the parties of the case, assesses the credibility and arguments of each side, and then issues a ruling on the matter at hand based on his or her interpretation of the law and his or her own personal judgement. (emphasis supplied).

Thus, the prospective judge must graduate law school, pass the bar exam and be admitted to the Bar of a state, thereby assuring, or at least presuming, a knowledge of, or familiarity with, the law.

But that's only the half of it. For he must also have experienced, in his own life, the practical ways of the world, the conduct and custom of life on the street, far from the maddening crowds of libraries and classrooms. It is not enough to be intelligent, he must also be SMART, an attribute attained by meeting and having contact with diverse classes of people. He should be just as comfortable playing poker and drinking beer with friends and neighbors, as he would be at a professorial dinner party, inhaling the air of intellectualism. Are there such persons on the Bench today, before whom (young) lawyers appear? That question must stand or fall on the reputation of each individual jurist. Nor are there any cut-off dates for tallies, for people can change as their life's experiences change. We are what we have gone through.Valuable lessons may be learned from mistakes while good deeds sometimes backfire.

It may be summarized thusly: the most valuable preparation for a trial judge is to have been a trial litigator himself. Only then will he be equipped to appreciate the extreme degree of preparation, the investment of self, the long arduous non-glamerous hours of late night work and the great stress enthusiastically assumed by the advocate as he readies himself for the ultimate battle in the courtroom. Without this ability to empathise, a trial judge observes, but he does not see. He listens, but does not hear. The reservoir into which he taps for resolution is substantively barren. And that effectuates a formidable obstacle for litigating lawyers who dare to strive for FAIRNESS.

A case pretty much in point:

A young man's parents retained me to represent him in a case scheduled for trial the very next day. The attorney initially retained had concluded that jail time could not be avoided and intended to have the son plead guilty and beg for mercy. The facts and relevant law presented a rather complicated situation which I shall not set forth lest I stray from the issue at hand: the proclivities of judges plucked from the public sector. Perhaps another post.

I explained that I would accept their money only if I could obtain a continuance of the case. Preparation was necessary and the necessity of obtaining expert testimony would have to be explored. The parents understood and agreed. We all met at Court the following morning.

The sitting judge was the First Justice of this particular District Court and the word was that he absorbed and believed his self evaluation. Here comes the judge--prepare to part the Red Sea.
I knew him. He had been a staff lawyer for the Board of Bar Overseers, the organization designed to police allegations of attorney misconduct. Our paths had crossed on more than one occasion, when I had represented lawyers accused of violating professional ethics. We had gotten along well. My impression was that we shared mutual respect. This was a good sign.

When the case was called, I addressed him directly, setting forth the circumstances attending my appearance before him. I asked for a one week continuance.

"Counsel, you are aware that this case is scheduled for trial today. I am always attentive to case management. You are an attorney of many years experience. I am sure that your study of the case, during the intervening hours since you were first approached by the defendant, has afforded you ample time to ably represent him. This case is going forward--today. Request for continuance is denied. Trial commences after the morning recess."

I couldn't believe it. This pompous ass was completely ignoring the practicalities of the situation. It was parental panic time. I told them to be calm, that I was not yet conceding the point. As other cases were being addressed, I approached the Clerk, whose path I had crossed during years of tilling the soil, and whispered, quite imploringly,"Tommy, you've got to get me into the lobby when he takes his break. It concerns Mr. Green." He was a veteran of the wars and he understood. I got my lobby conference.

It was just about S.R.O. The clerk, chief court officer, probation officer, court stenographer and, of course, the judge, himself. It was not a leisurely atmosphere. He was taking no chances of a "you said, I said."

"Counsel, you wanted to see me?"

"I did, Your Honor, and I thank you." The hell with it. Don't fail for lack of effort. Go for it.
"Judge, you and I know each other. We're not strangers. We've had cases together before you took the bench. I never threw you any curve balls and you treated me the same way. Nothing ended on a bad note. Please remember those days and understand that if I can't get this case continued, I get no fee. This is important to me. You know how it is, office expenses that don't go away, hedge-hopping from one case to another, the inconsistencies of income in the criminal defense business, while survival is the name of the game. I want this fee. Speaking candidly with you, I need this fee. My request for a seven day continuance is not unreasonable. This court will not shut down if you grant my request. You're still an attorney, after all, and I ask for consideration, from one lawyer to another."

His face was red. He was very uncomfortable, as he should have been, in front of witnesses to his arrogance. He lowered his gaze to the top of his desk. You could hear the ticking of the Roman numeral clock on the wall. His expression became one of resignation. He said,"All right. One week."
The clerk noted the docket appropriately, and shot me an imperceptible wink.

I got my fee. Imploring him on bended knee should never have been necessary. Never having experienced it himself, the travails of a practicing attorney were foreign to him.

My saving grace was the realization that, between the two of us, he had been the more embarrassed.

He had been absent the day real life was taught.


  1. Judge, I'd love to hear/read your thoughts on the Globe's story about OUI bench trials.

  2. Fascinating stuff Judge! Keep 'em coming.