I Wish the Judge Would... A Denver County judge and an attorney team up to discuss what makes judges tick.
by Barry Meinster, Judge Aleene Ortiz-White
Judge Ortiz-White and I were sitting at the same table during the last Bench-Bar Retreat. I’ve always enjoyed these get-togethers, as it gives me a chance to complain to judges about judges.
During a gripe session with her, and earlier that day with Judge Campbell, I realized that although these interactions were important to improving the relationship and understanding between the bench and bar, the judges who needed to hear these things the most were never in attendance.
I’ve been a litigation attorney for 30 years, and I’ve known many judges. I honestly believe most want to do a good job. Of course, a good job means more than showing up for work, putting on the robe, and dispensing justice. Most judges know that a good job also includes an understanding, appreciation, and sympathy for the circumstances of all who appear before them; this includes the attorneys as well as the litigants.
By definition, the term "most" does not include those judges who are so impressed with the position society has given them that the entire proceeding is about them, and the litigants and attorneys are merely bit players in the story of their life.
We want to offer some insights to the judges who care and hopefully sound a wake up call to those enmeshed in their own ego. We anticipate the good judges will read on, and the others will not have read past the previous paragraph. Please remember: the purpose of this article was not to help lawyers be better lawyers, but to help judges be better judges.
Our idea was to write about the ten things attorneys liked and disliked about judges. For input, we invited attorneys to send in observations and suggestions. To encourage participation, all comments were e-mailed to me, and I assured confidentiality by deleting all return addresses and other identifying information before forwarding them. I personally realized that although you were all anonymous, I was not.
Two things became apparent from the beginning: many attorneys wanted to be heard, and there were a lot more than ten things they disliked about judges. We offer a sampling of the comments, and some observations from us.
Below are some of the comments we received:
There’s a saying that power corrupts and absolute power corrupts absolutely.
This is a big problem with some judges, but let’s not forget the many who understand they are merely doing one job among the many in the judicial system.
I’m glad someone expanded this issue to include the staff. As you walk through the courthouse, try to pick out nonessential personnel. From the janitors who keep the place clean and presentable, through the judges deciding the fate of those before them, we are all part of the system, and without anyone of us, it would fail. I would recommend certain judges be reminded of this daily.
I thought about mentioning as examples some of the judges with a true sense of humility, but this would not be fair to the many others with the same understanding of their place in the world. Judges wanting to know on which side of the fence they fall may ask me privately, and with one condition I will tell them the truth. If they do not like what I say, they disqualify themselves from any future litigation in which I’m involved.
I’m not a young lawyer, except in the presence of Ben Aisenberg, but I know the feeling of sitting on the benches waiting for my case to be called and listening to some self-righteous judge humiliate a young attorney in front of the client and everyone present. In reality, although the newly admitted are probably more prone to feel singled out, if the judge has this disposition toward one attorney, the judge has this disposition toward all attorneys and litigants.
Judges have a difficult role and a huge responsibility to the litigants and the community at large. Just look at the huge dockets, shrinking budgets and the lack of public confidence in the legal system. On top of that is the expectation that judges should treat others with courtesy and respect at all times in all cases. It seems unrealistic, yet the Code of Judicial Conduct describes our duty to "be patient, dignified, and courteous to litigants, jurors, witnesses, lawyers, and others" when acting in an official capacity. Canon 3A(3). Perhaps we focus too often on the duty to "maintain professional competence" and to "maintain order and decorum" at the expense of overlooking how we treat people.
We should regularly take inventory of our judicial demeanor in all its aspects. Is our language spoken with a good measure of respect for the listener? Do our decisions take into account the human aspect of the litigation? Have we taken the time to compliment an attorney for adjusting her schedule to appear on short notice? Did we apologize for a hasty remark that was unfair? Did we tell an attorney that the motion or brief was helpful? You get the picture. In fact, the commentary to Judicial Canon 3 declares, "Courts can be efficient and business-like while being patient and deliberate."
I have asked several judges to offer their advice on how we can squelch the "urge to be arrogant." Here are their responses.
From Other Judges
"Because I don’t know as much about the case as the lawyers presenting it, I am reluctant to criticize until it is all over."
"One time when I wanted to teach a defendant a lesson, I mistakenly gave a punishment beyond what was allowed by law. Whenever I am tempted to ‘teach someone a lesson,’ I think of the rebound effect on me and the lesson taught to me by that case."
"I focus on being "patient, dignified and courteous. I also remind myself that what people will remember most about my courtroom is not what I said or how I reasoned, but how I make them feel."
"Remember you are there to serve the people not harass them. Think of your own foibles."
"I believe that I was fortunate enough to be given this job to help make life a little easier to bear for people faced with serious issues. I am forever mindful that it is a privilege to serve in this capacity. . .that this job doesn’t define me. . .I have absolutely no sense of entitlement to this position."
"Whenever I start to think of myself as being too wonderful for words on the bench, I remember that it is my exclusive job at home to change the cat box."