“Porkchop - you can’t clean a floor with a dirty mop.”
-Jack “Frenchie” Helm (explains life to McKay “Porkchop” Chauvin)
Jack “Frenchie” Helm was my oldest friend. By that I mean, we were friends, and he was really, really old - forty-three years older than my friend (his youngest son) Jelly and me. We started calling Frenchie “Frenchie” because our friend Crash felt strongly that Mr. Helm, as he was known back then, could and therefore should wear a beret. Being the wise man that he was, Frenchie knew full well that no one can or should wear a beret and, therefore, never put Crash’s theory to the test. The name stuck just the same.
After Jelly had grown up and moved away, Frenchie and I continued to talk semi-regularly on the phone, and to meet for lunch whenever we could. While I very much enjoyed our discussions about books, politics, and sports, that time was best spent listening to Frenchie talk about the formative times of his life. These included wistful reminiscences about the simple joys of his boyhood growing up in depression era Louisville (idolizing his stoic but loving 9 ½ foot tall police-sergeant father), to thoughtful recollections of both the splendid triumphs and appalling failures of the human spirit he witnessed during his career as an artillery officer in the United States Army during World War II and the conflict in Korea (stranger than fiction accounts of army life that, if they weren’t true, would fall somewhere between Slaughterhouse 5 and Catch 22). In addition to being a great storyteller, Frenchie was also a great storylistener. He listened attentively, laughed enthusiastically, and held his usually perceptive questions and comments until the end. The point I am trying to make so far, in order to fully drive home the point, I’ll be trying to make later, is that Frenchie was one of the finest and most thoroughly decent people I have ever known. So that you don’t have to take my word for it, and as much as he would not want me to, I should probably share a couple of examples of how he lived his life.
He was thoughtful. Frenchie, who had a lifelong love of learning, chose not to accept his diploma from Male High School out of concern that if he did, his brother (who did not graduate) might be made to feel dumb. He was generous. Although he did not have a great deal of disposable income to dispose of, at the beginning of every school year he would pay for some young man to go to Trinity High School who would not otherwise have been able to afford it. The only condition he placed on the gift was that he never be told who got the money, and that the recipients never be told who gave it. Frenchie was useful. He taught an adult literacy class for the homeless at Wayside Christian Mission and, spanning some four decades, served as a sponsor for an untold number of fellow travelers in the secret society for sobriety. He was hard-working. When Frenchie got out of the Army, he started a small cleaning/janitorial supply service. He found profound satisfaction in a difficult and often thankless job well done. Frenchie was spiritual. Way too modest to set himself up as an example to others, he led a life of calmness, compassion, and consideration that nevertheless served as an example to everyone who knew him.
So, here’s what happened. When he finally semi-retired, he sold his business but continued to work as a consultant to a number of other businesses - mostly churches. The guy he sold the business to sued him, alleging that the consulting work was in breach of their sales agreement. It wasn’t. Frenchie, who knew he hadn’t done anything wrong, took being accused of wrongdoing very personally. It mattered to him. Unfortunately, as the case wound its way through the Jefferson Circuit Court, he was made to feel that it didn’t matter to anyone else. More importantly, he was made to feel like he didn’t matter. No one, including and perhaps most importantly the judge, ever acknowledged his existence despite his presence in the courtroom. When he wasn’t being outright ignored, he was being given the clear impression that he was taking up more important people’s much more valuable time. No one, including and perhaps most importantly the judge, took the time to explain anything about what was happening or why. He was marginalized, patronized and, as a result, more than a little demoralized by this experience.
Listening to him describe his slog through Circuit Court was very upsetting to me. Frenchie was upset too. The difference being that I was mad about how he had been devalued, while he, as was his way, was concerned about how others might be similarly devalued. His take was not that he deserved more and better - and here’s the point - but that everyone deserves more and better. Anyone and everyone who has their day in court (even the jerk who sued Frenchie) deserves not only to be acknowledged, but to be made welcome by the people, including and perhaps most importantly the judges, who spend every day in court.
With this in mind I promised Frenchie three things: (1) I would make sure to always introduce myself and speak directly from the bench with the parties in both civil and criminal cases; (2) I would make clear to them what it was we were doing that day in court; and (3) when deciding what to do, I would try to explain why I thought that’s what needed doing. All of this takes a little extra time and, as such, sometimes annoys busy lawyers who I watch watch their watches or thumb-thump their smart-phones while I chat with a criminal defendant about his haircut or ask after his grandmother. But, as I learned from Frenchie, it’s important that I take that time, because feeling disrespected and being disrespected feel pretty much the same.
I had only been on the bench about four months when Frenchie died in 2004, but I think about him every time I head out to the bench. I think about him because the last thing I see as I’m leaving my office is a hat (a fedora - not a beret) that Frenchie gave me. It sits on top of my coat/robe rack as a reminder of my promise to my old friend and of my responsibility to complete strangers.
People, to include people who are lawyers and lawyers who are judges, are driven to varying degrees by ego. That’s not necessarily bad thing. It’s that part of us that makes us want to “win” an argument and look good doing it. It’s also the part us that makes us want to not look bad when we lose. Whatever you want to call it, it is part of what makes great trial lawyers and great judges great because it’s part of what makes them work so obsessively to be better – to be the best - at what they do. But here’s the thing - while our drive to be the best may inure to the benefit of the litigants - IT ISN’T ABOUT US!!! Ego can be a tremendous source of motivation to do what we do at the highest level, but it can never be why we do what we do. Regardless of whether anyone is the best, everyone in the legal system has a sacred obligation to always do their very best for the people that system serves. IT’S ABOUT THEM!!!
The Circuit Court Judges Committee on Continuing Judicial Education once invited me to be the luncheon speaker at our annual Judicial College. They wanted me to be a luncheon speaker?! That’s the guy who is amusing enough to accompany buffet chicken parmesan, but not so engaging as to keep people from eating it while they chat with the other people at their table and return all of the e-mails that piled up during the morning sessions when they were actually listening to substantive speakers. Did they think of me as mere fluff? Light entertainment? Chautauqua Muzak? Some kind of easy- listening legal lecture ditty to provide a pleasant non- intrusive background melody to fill the space between the salad and the cheesecake? They wanted me for that?! I accepted immediately.
The assigned subject matter of my luncheon discourse was to be something along the lines of the collected wit and wisdom of a seasoned Circuit Court judge – me - which they titled: “30 Tips In 30 Minutes.” I can only assume that they must have settled on the topic before they settled on the speaker. Otherwise, they would have gone with “5 Tips in 5 Minutes” or, given the degree to which I love to listen to me, “5 Tips in 60 Minutes.” Much to my surprise, and while some of the tips were definitely wittier and wisdomier than others, I managed to fill my aphorism quota. Knowing that I wouldn’t have time to address all of these judging jewels during a thirty-minute address, for ease of digestion (as they say in the luncheon speaker business) I broke them down into categories: The 5 B’s (Nos. 1-5); Some 2 Dos (Nos. 6-13); Some Don’ts (Nos. 14-18); If - thens (Nos. 19- 24); and Shoulds (Nos. 25-30).
The paradoxical thing about giving a speech giving advice to other people is that you can dish it out without having to take it. There have certainly been times when (with the notable exception of No. 18) I have not lived up to either the spirit or letter of my guidelines for good judging. The ones I violate most often are those I ignore mainly to my own detriment. I forget to take breaks (No. 9); I don’t go on vacation (No. 11); and I’ve ruined five or six seersucker suits (No. 28). There are others which I violate to someone else’s detriment. I am not always on time (No. 1 usually because of No. 29); I sometimes sit on a case way too long when I can’t find the answer instead of giving the parties an answer so they can go on and get the answer from the Court of Appeals if needs be (it’s ok to No. 23 but you have to No. 7); and on rare but memorable occasions I lose my temper (No. 3). I do, however, practice what I preached when it comes to some/most of the other (with the notable inclusion of No. 18). I put a tremendous amount of work into creating and maintaining a well-run docket (that’s No. 24 by requiring No. 8 without doing violence to No. 4 or No. 14 while keeping No. 22 firmly in mind and encouraging No. 30). I also eat lunch (No. 10).
Based on the feedback I received at the Judicial College after everyone was fed, I am pleased to say that the offerings I served up appear to have hit the spot (I assume in large part because No. 21 doesn’t apply to me, but with a sneaking suspicion that they may have been No. 16ing me). The warm response I received from the lunchtime crowd (No. 13) when I walked off the dais was greatly appreciated but felt a little too much like one of those de rigueur standing ovations I get from the courtroom crowd whenever I walk out onto the bench (wearing old No. 27 backed up by No. 17).
Thank you. Good night. Please don’t forget to tip your server. (No. 3).
25. You should always introduce yourself to and acknowledge the litigants.
26. You should only send people to prison who you think we should be afraid of, not mad at or frustrated with.
27. You should always wear your robe in the courtroom.
28. You should wear something other than a suit to work. Otherwise whatever you wear under your robe will wear out much faster than whatever you would otherwise be wearing with it such that soon your suit pants will no longer match your suit coat.
29. You should add an additional ten minutes to the time it used to take you to get in and out of the courthouse.
30. You should encourage people to tell you what they honestly think whenever they honestly think you need to hear it.
Everybody knows that lawyers “practice” law. People have a right to expect a base level of competence from lawyers regardless of how long they have been practicing but they might also assume, rightly or wrongly, that the more “practice” the lawyer gets, the better (s)he gets at his or her job. The same may be true but isn’t expressed the same way about judges - judges don’t “practice” judging. People have a right to expect a base level of competence from judges regardless of how long they have been on the bench, but they might also assume, rightly or wrongly, that the more time a judge spends judging, the better (s)he gets at his or her job. Obviously, some lawyers and judges work harder and get better at it than others. Judges are very fortunate in Kentucky to have the Administrative Office of the Courts and the Circuit Court Judges Association provide us with the resources, administrative support, and first rate continuing legal education that makes getter better easier. Our greatest resource, however, is each other. Shared experience is a great teacher and provides many teachable moments we can all learn from. It is so beneficial, and often hysterical, to have people who know exactly what you’re going through to talk with, learn from, vent to, counsel and be counseled by. That’s when you want No. 22 so you can get No. 30 so you can No. 5 in the best possible way.
What follows is the text from a speech I gave on May of 2016, at the annual rededication of the memorial erected Jefferson Square Park in honor of the law enforcement officers who died while protecting and serving our community.
I am greatly honored to have been asked to say a few words in honor of the men and women whose names are etched on this monument. I knew some of these officers personally; others I knew by reputation; and one I only came to know back when I was the Assistant Commonwealth’s Attorney assigned to prosecute the man who killed him.
As I thought about what I could say to honor the memory of these officers, it occurred to me how much the job of “police officer” has changed over time.
My friend Jack “Frenchie” Helm’s father was a policeman back in the 1920s. Frenchie loved to hear his father talk about his job, and I loved to hear Frenchie talk about the father he so clearly adored. It was a purely political job back then. You got hired because you knew somebody or knew somebody who knew somebody at City Hall. He was paid very little and there was no pension. He and his fellow officers, all of whom were white men, were not particularly well educated or well trained. The apocryphal story he would tell Frenchie to illustrate this point was about the day he and his partner were taking a report about a draft horse killed by a motorcar near 28th and Dumensnil - when they realized that neither one of them could spell “Dumensnil,” They solved the problem by dragging the horse four blocks over to Oak Street. Officer, and later Sargent, Helm would take the streetcar into work to walk his beat where the major crimes he policed were bootlegging, drinking, and gambling - but only to the extent they were conducted too openly or notoriously. He did not carry a gun. He never felt he needed one. He felt safe. He treated people with respect and, in turn, was treated by people with respect.
I have lots of friends who were police officers in the 1970s. The job wasn’t political to the same degree by then, but it was still a predominantly white male organization. The money was a little better, and there was a pension. Some of the officers got to drive those seemed-like-a-good-idea-at-the-time-but-what-a-disaster-that-turned-out-to-be station wagons. During that pre-EMS era, if a person suffered a serious injury, they only had about a 75% chance of survival unless they were transported at top speed to the hospital strapped on a gurney in the back of one of those wagons, in which case their chances dropped to about fifty-fifty. Notably, and more alarmingly, the six-shot revolvers the officers carried were no longer optional. They were not optional because they were deemed necessary in response to the first wave of gun-violence associated with the burgeoning drug trade. Like the Vietnam War veterans that many of them were, they sometimes felt disrespected, and at unsafe in the neighborhoods they patrolled.
Almost one-hundred years since Frenchie’s dad walked the beat and going on fifty years since the last of those police station wagons were finally junked, today’s police departments are made up of men and women of all races, who are better educated, better trained, better equipped, and better paid than their law enforcement predecessors. All of which should combine to make this the golden age of policing. But while our presence here today is a tangible sign of the respect that many, in fact most, people in our community still have for those who serve and protect us, it also seems as though the level of disrespect and mistrust is at an all-time high. Whether or not the job is, statistically speaking, more hazardous than it ever was as a result, it can certainly feel that way to the people on the job. A job that has gotten so big and so complex that there is no amount of training that will allow an officer to be all of the things he or she may be called on to be throughout a given workday or to control how their attempts to do so are perceived and received by the communities they serve. We could, and most definitely should, spend a great deal of time talking and thinking about all of the cultural, sociological and historical factors that have gone in creating that potentially toxic dynamic, but what it comes down to, as is so often the case when it comes to people, is a mutual lack of understanding. An inability, and sometimes an unwillingness to try, to see the world as others see it. To see ourselves as others see us.
But here is what I think people, whatever else they may think or feel about policing or police officers, have to understand and appreciate about how the people who police our community see the world. A couple of years ago there were officers on the scene at a shooting investigation during which more shots were fired in a separate but related incident just down the block. Maybe a year later, officers detailed to the Pegasus Parade were there when, for whatever reason or no reason at all, people started shooting at each other. On both occasions, both of which were particularly memorable because they were captured on video, people did what people do. They panicked. They screamed. They ran away as fast as they possibly could. They tried to hide. And on both of those occasions police officers did what police officers do. In the face of all the panic, screaming, running and hiding, the officers ran as fast as they possibly could towards the gunfire. Into harm’s way to put themselves between the threat and the justifiably frightened public. That’s why in remembering and re-dedicating this monument as we do each year to those who gave their lives in service to our community, I think about what Abraham Lincoln said in his brief remarks to those gathered in Gettysburg, Pennsylvania to dedicate a cemetery to those who gave their lives in service to our country. President Lincoln said, in part:
We cannot dedicate — we cannot consecrate — we cannot hallow — this ground. The brave souls who struggled here, have consecrated it, far above our poor power to add or detract. The world will little note, nor long remember what we say here, but it can never forget what they did here. It is for us the living, rather, to be dedicated here to the unfinished work which they have thus far so nobly advanced. It is rather for us to be here dedicated to the great task remaining before us—that from these honored dead we take increased devotion to that cause for which they gave the last full measure of devotion.
We stand with the men and women of law enforcement who carry on the unfinished work which those who came before having so nobly advanced, who stand ready at a moment’s notice and without a moment’s hesitation to risk their own safety to ensure the safety of others as we remember and honor the fallen. Those who gave the last full measure of devotion.
Out of respect for the both the fallen officers and the fellow officers and family members I knew would be in attendance, I put a great deal of time and thought into writing something I thought would be appropriate to the occasion. When I read through what I wrote, I was satisfied that I had managed to get down on paper what I believed to be the heart of the matter. As prepared as I thought I was to say out loud the words I had written, I wasn’t as prepared as I thought I was to hear them. I’m not sure about what it was in that moment that got to me but, in short, I got choked up.
I had to stop more than once to keep my voice from breaking and only managed to get through it by not making significant eye contact with the people in the crowd who were trying hard not to make eye contact with each other so that they wouldn’t get choked up too. Maybe I shouldn’t have been surprised. I know that now that I am in my fifties that kind of thing happens to me way more often than in the previous four decades combined. It can be over something relatively inconsequential, like the first ten minutes of the movie UP - a &%$# cartoon. I cried. (Hey! don’t judge me if you haven’t seen it). Or it can be over something of enormous consequence, like standing by the Star of David marking the gravesite of the relative of a cherished member of my extended family buried in the American Cemetery at Normandy while looking over a sea of markers for the overwhelming number of other nineteen-year-olds who didn’t live long enough to have a family, much less an extended family, of their own. I couldn’t stop crying. But what I remember remembering back on the day I gave this speech at the Fallen Officers’ Memorial dedication, was when I was giving the opening statement at the trial of the man who took Deputy Sheriff Greg Hans away from his family all those years ago.
What I remembered was that I cried then too.
My friend Bill Adams, a long-time Assistant Commonwealth’s Attorney and the much-beloved “Philosopher King of Portland,” once told me that life is like a conveyor belt. You get on and if along the way you discover that you can bake, then you get off and you are a baker. If you can build, you get off and you are a builder; etc., etc. If, however, you can’t actually do anything, then you continue to ride the conveyor belt of life straight on to law school.
Having taken that ride myself, I have always admired people who can do tangible things. People with the kind of skills that would guarantee them a seat on an overcrowded lifeboat. As such, I am drawn to television shows like Top Chef (cooks), Wheeler Dealers (auto mechanics), and Restored (carpenters/ plumbers/masons/roofers/landscapers) in which people are doing under pressure and hopefully under budget that which I don’t have the skills to do under any circumstances. What I don’t watch are shows about lawyers. Even if I was inclined to do so, my wife wouldn’t let me. She claims that I ruin them for her by saying things like, “oh come on!”, or “that would never happen”, or just “pul-leeeease.” When she quotes me saying things like that, she uses the voice that all long-suffering wives use when they are imitating/mocking their goofball husbands (it’s like the voice of Lenny from Of Mice and Men but with the tonal quality of a complete know-it-all blowhard). I don’t remember ever saying any such things (or sounding that way) but I do recall the occasional harrumph, chortle or highly audible sigh. In fairness, I doubt cooks, auto mechanics, or building contractors are allowed to watch Top Chef, Wheeler Dealers, or Restored with their significant others either.
Lawyers have skills too. The kind of skills that might be used to convince the rest of the people in the aforementioned overcrowded lifeboat not to toss them overboard (or to toss somebody else instead). Our skill set is developed through and honed by reading. We are among the last of a dying breed of readers. It’s what we have to do when we’re at work. It’s also what a great many of us choose to do when we’re off work. It is my leisure activity of choice. I am rarely without the book I am reading (which I carry tucked under the waistband of my pants in the small of my back) and another book “on deck” (which I do not stuff in my pants) for when I am finished with the first one. I am allowed to read books about lawyers. I have read quite a few. I am not a particularly good audience for books set in the courtroom any more than I imagine plumbers are for books set in the bathroom, but I have read a few - very few - that I enjoyed a great deal. If you either take pleasure in or haven’t given up the search for pleasurable stories which feature lawyers and lawyering, then I am pleased to recommend the ones I have listed in the SIDEBAR below.
Regardless of what you choose to read, reading allows you to better understand your world by allowing you to visit other people’s worlds. The more you read the more readily you can use the language and ideas expressed by others to better express yourself. The well-read lawyer is well-prepared to draft briefs that are well-written and make arguments that are well-spoken. Well? What are you waiting for? As Socrates wrote in a book I haven’t read, “employ your time in improving yourself by other men’s writings so that you shall come easily by what others have labored so hard for.” Or, as Dr. Seuss wrote in a book I have read, “the more that you read, the more things you will know. The more that you learn, the more places you’ll go.”
Here is the very short list of lawyer books I have enjoyed. I trust that you will enjoy them too but, if not, I hope you won’t do whatever my wife says I do to ruin them for your non-lawyer friends and family who might.
To Kill a Mockingbird by Harper Lee. Atticus Finch is called upon to serve as the conscience of his community when he is appointed to defend a black man accused of raping a white woman in a small depression-era town in south Alabama.
The Verdict by Barry Reed. Attorney Frank Galvin is given his last best chance to take control of what little is left of his once brilliant legal career by taking on the powerful Archdiocese of Boston on behalf of his powerless client.
Anatomy of a Murder by Robert Traver (the pen name of Michigan Supreme Court Justice John D. Voelker). Attorney Paul Biegler comes out of semi-retirement after losing his bid for re-election as District Attorney in a small town in the Upper-Peninsula of Michigan to craft a defense for a man accused of killing a local innkeeper.
Presumed Innocent by Scott Turow. Deputy District Attorney Rusty Sabich heads up, and then becomes the prime suspect in, the politically and personally charged investigation into the murder of colleague with whom he had an affair.
A Time To Kill by John Grisham. Attorney Jake Brigance is required to confront a difficult mix of legal, moral, racial and cultural issues in his northern Mississippi town when he is hired by a black man to defend him for killing the white men who raped his daughter.
Rumpole of the Bailey by John Mortimor. Barrister and self-described “Old Bailey Hack” Horace Rumpole uses his considerable wit and formidable wits to deal with his colleagues with whom he shares chambers, his wife (“She who must be obeyed”) with whom he shares a “mansion flat”, and to provide zealous and hilarious representation for several generations of colorful “local villains” with whom he shares doubts about the impartiality of the London criminal courts.
Wilkes: His Life and Crimes by Winston Schoonover (the pen name of Charles Sevilla). Gonzo criminal defense attorney John Wilkes defends those with enough money to afford him with great zest, craftiness and panache, but without any regard for the rules of evidence, ethics or decorum.
The Ehrengraf Defense by Lawrence Block. Attorney Martin Ehrengraf is featured in eight short stories, akin to what you might expect to see on old episodes of The Twilight Zone or Alfred Hitchcock Presents, in which he employs extremely unorthodox methods to earn the extremely high fees he charges but only collects when the client is set free by the authorities.
Helter Skelter by Vincent Bugliosi. Deputy District Attorney Vincent Bugliosi chronicles the story behind the prosecution of Charles Manson and members of his “Family” for the infamous Tate/LaBianca murders in 1969. Please note that if after reading this book you find yourself thinking that it would be worthwhile to read anything/everything else Mr. Bugliosi wrote - I can assure you that it would not.
The Prosecution Responds: An O.J. Simpson Trial Prosecutor Reveals What Really Happened by Hank Goldberg. Deputy District Attorney Hank Golberg gives a serious, compelling and (despite the title) objective analysis of the procedural, tactical and strategic decisions made by the prosecution team in The People v. O.J. Simpson, and how those decisions played out in court and through the media.
Someone responding to the Louisville Bar Association judicial poll once wrote of me, and I quote, “I can’t believe you ever went to law school.” It was one of my favorite comments because, unlike some of the more amorphous barbs that anonymous criticism sometimes invites (e.g., “you suck”), it provoked an argument that I thought I could win. It’s one thing to have to prove that you don’t suck, but surely, I could prove that I did go to law school. I thought I could confound that critic by hanging my sheepskin from the Georgetown University Law Center on the bench just below my name plate. Then I remembered that, insofar as the diploma is written in Latin (a dead language that no one can read), I might just as well hang President Obama’s birth certificate there for all the good it would do trying to convince the inconvincible. But I did go to law school - I swear.
Georgetown was at that time, and may still be, the biggest law school in the country. There were eight sections with one-hundred and thirty students in each one. I didn’t know anyone there, and none of them knew me - at least until the second day of property class. That’s when Professor Gordon called on me to discuss one of the seminal United States Supreme Court cases on Native American property rights. Sitting in the very last row of the cavernous lecture hall, I stood up slowly, gathered my thoughts, took a deep breath and began to explain how, “for many moons the great white chiefs in Washington had been speaking with forked-tongues to their red brothers on the plains which, as you might expect, made for very bad medicine”. My John Ford film-fest inspired (and, in retrospect, tremendously culturally insensitive) recitation was interrupted by the sight and sound of one-hundred and twenty-nine heads snapping around so their eyes could see what their ears could not believe. I was taking a pretty big chance on Professor Gordon thinking that I was as funny as I thought I was. It turns out, fortunately for me, that he did - although it probably helped that I knew the case cold.
I would never have taken that same approach in my contracts class. Professor Spann, my contracts professor, was the smartest man in the world. He was so smart that he found it difficult to communicate with people who weren’t as smart as he was (i.e., everyone else in the world). It was very frustrating for him and, as a result he could be more than a little cranky. He was neither amusing, nor easily amused. It would not have been wise to crack wise in his class. There were plenty of people in my class who believed that the same rule would apply to Professor Greenhalgh in our criminal procedure class. While Professor Greenhalgh scared the Hoya hell out of my law school classmates, we all agreed that he was a wonderful teacher. He was big on mnemonic devices. For example, he taught us to use the acronyms “a big spice” as a means of recalling all of the exceptions to the warrant clause, and “M-I-M” so that we would remember to mark and identify our exhibits before moving them into evidence. When Professor Greenhalgh called on me in class to tell everyone what the “m” stood for, I stood up slowly, gathered my thoughts, took a deep breath, and began to sing: “‘M’ is for the million things she gave me. ‘O’ means only that she’s growing old”. Much to my classmates’ astonishment (most of whom had never heard or even heard of this Eddie Arnold classic), Professor Greenhalgh didn’t go off. He, as I expected he would, guffawed. Although, in keeping with his carefully cultivated curmudgeonly image, when he finished chortling, he looked across the sea of students, to where I was standing in the back row and pronounced: “Mr. Chauvin, YOU - are - an - a**hole”. He was right but, in fairness to me, so was I. It was clear to me that he was pretending to be that crotchety old guy and was pushing us in the hope that we would eventually push back. You couldn’t and wouldn’t do that if you failed to recognize and appreciate who he was and what he was going for.
Judges, like law school professors, are unique individuals. Practices, procedures, preferences, and proclivities are, like personality, peculiar to each particular judge. You cannot assume that what may be well-received in a courtroom will be equally well-received in every courtroom any more than you could assume that what may have been well-received in a classroom would be equally well-received in every classroom. Lawyers have to know about the judge they are practicing before (as well as the people they are practicing the case with and against) in order to practice their case effectively. A trial lawyer who fails to take the court (s)he is in into account, fails to maximize the likelihood of success, increases the likelihood of failure, and courts the possibility of an otherwise entirely avoidable disaster. Disaster on a scale with what would likely have happened if Professor Spann had called on me back in contracts class to define “breach”, and I had stood up slowly, gathered my thoughts, taken a deep breath, and responded: “Prrofessor - the breach is where the orcean mreets the shrore”.
 Automobile, Border, Inventory, Good faith, Search incident to a valid arrest, Plain view, Inevitable discovery, Consent, and Exigent circumstances.
Here’s something that judges know that lawyers might not. Judges very much want lawyers to know them. Most judges recognize and appreciate when advocates have prepared their presentations with them in mind. It can be very frustrating for the judge when they don’t and, over time, it can start to feel downright disrespectful. Judges only talk about this with other judges not with the lawyers who appear before them. When someone is doing something, we wish they wouldn’t most judges just make the resting judge face until whatever it is is over. I try not to. I mean, I still make the resting judge face, but I also tell the lawyers what they’re doing that’s making me make that face. I want them not to do whatever it is because doing it is not helping. I’m not talking about pet peeves or “here’s the way I’d do (better) if I were you” kind of stuff. I’m talking about things that all judges everywhere complain about to each other.
Maybe a couple of examples will help.
EXAMPLE #1: At a sentencing hearing in a criminal case, don’t talk about how many kids your client has or how much they love him(her). A young lawyer once said that to me in case where the defendant was convicted of raping and beating his wife – in front of their children! Regardless of how true it is or isn’t as a matter of fact, it will never matter as a matter of law – it only makes the judge madder.
EXAMPLE #2: In a civil case, a lawyer should never say that what opposing counsel said was “untrue” or that (s)he is being “disingenuous” when all (s)he means is that (s)he sees the facts differently or disagree with their legal argument. They should just tell the judge how they see it and make their legal argument. After pointing out the distinction, I give the lawyer the chance to take it back (“sorry … what I meant was”) with the understanding that if (s)he really meant “untruthful” then we will stop the proceedings and have a hearing for me to make that determination - with the further understanding that if I find that (s)he was lying then I will impose appropriately draconian sanctions on the offender, but if (s)he wasn’t then I will impose equally draconian sanctions on the accuser. There is at least one lawyer in Kentucky who is $3,000 wiser but poorer who didn’t believe me.
I don’t know if my way (sharing the view from the bench as it were) is a better way. But wouldn’t it be in the lawyers’ and the lawyers’ clients’ best interest to know my way before they started arguing their case before me? Before they mention Tommy Jr’s upcoming birthday or call opposing counsel a “@$%# liar?"
Of all the lunch joints in all the towns in all the world, I was lucky enough to have walked into Gavi’s. A lunchtime oasis in a litigation dessert where hall of justice refugees could eat, drink, or hide out. A place where all citizens of the courthouse world were welcomed by and into the Gavi family. It may have felt like we would always have meatloaf Monday, pepper steak Tuesday, and fried chicken Wednesday, but Gavi’s can no longer round up enough of the usual suspects to keep the business going. Who was it Gavi’s customers left them for? Was it Subway, or were there others in between? Or aren’t they the kind that tell? It doesn’t take much to see that the problems of one little restaurant don’t amount to a hill of beans in this crazy world, but, as you may suspect, underneath my cynical shell I am a sentimentalist, and Gavi’s is a place that has touched my heart - my least vulnerable spot.
You must remember this: there is no justice without lunch. One of the fundamental things that apply to legal communities everywhere is that somewhere within arguing distance of every courthouse there must be a place where people can go to escape from mornings spent dealing with the havoc wreaked by other people with hearts full of passion, jealousy, and hate. A neutral safe haven with good food where you won’t be asked who are you really, and what were you before? What did you do and what did you think? There was a time here in Louisville when we had four (4) such places on which we could rely. As time has gone by, the lunch crowd has passed Hollies, the Colonnade, and the Delta by. They all tried to hold out against the rising tide of fast-food fascism, but Gavi’s succeeded the longest.
I never had the pleasure of meeting Joseph Gavi, who along with his wife Ida, and daughter Zina opened the restaurant back in 1982. Those who knew him would tell you that he was just like any other man, only more so. The day I walked into Gavi’s was the beginning of a beautiful friendship with Ida, Zina, and her sons David and Gaba (who, when it comes to women, are true democrats). While the greater downtown Louisville restaurant world will always welcome Gavi’s customers, when Gavi’s closes, there will be a great many of us who will regret it. Maybe not today. Maybe not tomorrow. But soon and for the rest of our lives. That no one can deny.
So if you’re walking down Seventh Street anytime soon don’t be surprised if you see a guy standing in the rain with a comical look on his face because his insides have been kicked out, who sounds like a man who’s trying to convince himself of something he doesn’t believe in his heart and, who through lack of money, or influence, or luck was unable find another sanctuary like Gavi’s. It would take a miracle to find chicken livers on a Friday anywhere else in Louisville but Gavi’s, and Jimmy Johns has outlawed miracles.
Every legal community is peopled with colorful characters who gather in and around the courthouse to share stories about their legal triumphs and misadventures, tell jokes at each other’s expense, and wax nostalgic about how much better things used to be. For about a third of the lawyers in Louisville, that place was the Colonnade Cafeteria. My father ate lunch there at the same table with the same people for over thirty-five years. The criminal bar hung out at Hollies restaurant, directly across the street from the courthouse. It had a full bar and was so full of cigarette smoke that you could barely see who you were exaggerating to. Gavi’s was the last of its kind for my kind. What is known in the South as “a meat and three” but with a Russian-Jewish twist (e.g., Borscht and Matzah Ball soup). I wrote this tribute in appreciation to the Gavi family for many years of fine food and even finer friendship. Given the similarity between the eclectic and eccentric clientele seeking refuge, entertainment, sustenance or just hiding or hanging out at Gavi’s and Rick’s Café Americain, I was inspired to include twenty-five mashed-up references to the film Casablanca in this appreciation. Please feel free to contact me here to request the Answer Key.
The world is not easily divided into “good guys” and “bad guys.” Having spent the first fifteen (15) years of my lawyering life prosecuting cases involving serious and violent crimes, I realize that there are some people who are just too dangerous to live amongst us. Some people. In all that time I found that very few of the people who found themselves on the wrong side of the “v” (i.e., Commonwealth v. Them) were actual “bad guys.” They were often undereducated. They were usually underemployed. They were almost always under the influence and nearly as often suffering to some degree from mental illness. It follows then that, while it is necessary that we continue to lock up the people who should be in prison; it is important that we continually look for ways to help those who shouldn’t be get educated, employed, sober and access to quality mental healthcare.
The traditional means available to judges to achieve that end is probation. Under the traditional tough on crime probation model probationers get to stay out of prison so long as they follow the rules. The problem is that probationers, it turns out, are not particularly good rule followers. That’s pretty much how they got to be probationers. It’s like saying to someone, “You know how you’ve been your whole life? Starting tomorrow don’t be that way anymore or go to prison.” We are disappointed but should not be surprised when that doesn’t happen on command or on schedule. It wasn’t until 2008 that I finally wised up and got S.M.A.R.T. about probation.
S.M.A.R.T. probation is rooted in unassailable behavioral modification principles and works by making sure that the people on probation have a clear understanding of what is expected of them and what they can expect in return along with the encouragement they may need to make the effort necessary to make a difference (i.e., Supervision and Motivation). Good choices are recognized and rewarded. Poor choices are dealt with swiftly, surely and in proportion to the seriousness of the misconduct (i.e., Accountability and Responsibility). And help is provided at every turn to increase each person’s capacity for making consistently and progressively better choices (i.e., Treatment). A probationer with a long history of not making it on probation or parole summed up the spirit of the program at the end of a S.M.A.R.T. orientation session (what one of my curmudgeonly colleagues dubbed the “Kumbaya”) when he said: “I’ve been in trouble and in and out of jail my whole life and I’ve never had anyone, especially a Judge, talk to me and explain things this way. I know I need help. I am going to try. I can’t promise that I’m going to make it, but if I end up back in prison - man that’s my fault.” Yes! He was right. He was also successful. He completed his five (5) years of supervision without any violations and has not gotten into any trouble of any kind since.
I didn’t know it when I thunk this up, but programs similar to mine were springing up independently/organically all across the country. These programs were started by judges (often former prosecutors) who, like me, were tired of watching people fail their way into prison and were encouraged by people across the political spectrum - from those with a moral imperative against locking people up to those with a fiscal imperative against the budget-busting cost of keeping people locked up and everyone in-between.
S.M.A.R.T. probationers have proven over three (3) times less likely to commit a new offense than other probationers. That translates directly into a decreased criminal population in our prisons and correspondingly increased productive citizen population in our communities. Communities which will enjoy the benefits made possible by freeing up money we no longer have to spend incarcerating people we didn’t build prisons for in the first place and spending that money on programs to help people get educated, employed, sober and address their mental health issues. While there will always be a time to be tough on crime, there’s never a time not to be smart on crime.
It’s fair to say that, when it comes to the criminal docket, I have necessarily gone from being a “judge” to an “addiction counselor” to a “life coach.” The majority of my time is spent trying to help people recognize and deal with the problems that brought us together. Judges don’t (or at least shouldn’t) actually “judge” anyone who comes before them. I am keenly aware that if had their lives I probably have their problems. But I didn’t. It’s as though we were born on two different planets. I was born on planet Opportunity, and most of them were born on planet Obstacle. Through S.M.A.R.T probation, starting with the above-mentioned “Kumbaya,” I try to empower people to take control of their lives by deciding that are capable of and deserve more and better and different from what their life experience thus far has led them to believe is available and attainable. But I also let them know that making that change takes time, effort and usually requires them to seek and accept help along the way. They provide the desire and the effort. We provide the help.
S.M.A.R.T. probation is undoubtedly the most impactful thing I have been a part of during my time on the bench. It is not unusual, in fact it happens about once a week, for someone who is in or has been through the program to approach me (often in person) to let me know how well they are doing. Interestingly, it almost always starts with some version of “if it weren’t for S.M.A.R.T. probation I would be dead or in prison”, and almost always ends with “you saved my life”, with a long list of achievements big and small (to include sobriety, employment, healthy relationships, etc.) in between. As much as I appreciate the sentiment, I am quick to point out that it wasn’t me. All I did was believe in them enough to give them the chance to believe in themselves enough to make all of those things possible for themselves. It is frustrating and occasionally heartbreaking when they don’t. It is wonderful when they do. It makes me feel proud – and maybe a little S.M.A.R.T.
It has been suggested that some judges grow when they take the bench while others just swell. It’s good to be the judge. People stand up when I walk in the courtroom. They have to ask my permission to sit or speak and, whether out of respect or the fear of getting tased by my courtroom Deputy, immediately come to me when I call them. Lawyers refer to me as “Your Honor” and dutifully laugh at my witty banter both on and off the bench.
If someone may have considered me to be “a little slow” when I was a lawyer, they have to describe me as “deliberate” now that I’m a judge. “Mean” becomes “no nonsense," and “goofy” become “eccentric.” However, the most intoxicating, and therefore the most dangerous, thing that happens when a lawyer becomes a judge is that people generally and lawyers particularly stop telling them “no.” In fact, they pretty much stop telling them anything.
It is tempting for the judge to take it from their silence that what (s)he is doing and how (s)he’s doing it is “right” every time. Maybe so - but in the absence of hearing what people really think, judges are constantly in peril of sliding down the slippery slope that goes from asking lawyers what they think should be done, to telling them what to do, to demanding it be done, to berating them for not doing it right or, at least to the judge’s satisfaction. I know no lawyer wants to appear before that kind of judge. I also know that no judge, including me, wants to be that kind judge.
Being mostly human, I am well aware that I am not always right, nor do I have the great idea market cornered. The best I can do is the best I can do. However, my best can always be better if people are willing and able to let me know what they honestly think. The best, and most welcome, anti-inflammatory available to combat judicial swell is very frank and very specific feedback.
The Judicial Evaluation conducted by the Louisville (and now Kentucky) Bar Association provides members of bar one of the few opportunities to provide that kind of feedback to the local bench. Unfortunately, although it is not unhelpful, I find it to be of very limited practical value. This may be because so few lawyers take the time necessary to complete it or, because whatever the results are, neither the score nor the scoring gives me any useful insight into exactly why I scored the way I did. The comments, many of which are very very personal, are generally too general to be meaningful. “You are a wonderful judge” and “you are an *&^%!!! idiot” are equally unhelpful - although by no means equally unappreciated.
Having accepted the fact that I couldn’t make people do a better job telling me how to do a better job through the Judicial Evaluation process, I was inspired to create the “Tell it to the Judge” page on my website. The page is intended to provide a real opportunity for lawyers, litigants and pretty much anyone who owns or has access to a computer, to freely express that which social mores and local legal custom might otherwise stifle. I like to think of it as the opportunity to speak the truth without fear of consequences. The are only four rules: (1) All comments sent through the website are submitted anonymously. If you want to remain anonymous then best not sign your name to your submission; (2) Do not use the website to communicate with the court about a pending case. All submissions are screened by the Division 8 staff for ex parte communications; (3) Try to be constructive (i.e., don’t just write “you suck”); and (4) If you can’t not write something mean, then at least try to make it funny.
I have been pleased, if not a little surprised, to find that the vast majority of anonymous comments left on the website have been positive, affirming, and helpful. I have tried not to be discouraged or dismissive of the comments that have been mean but not funny. Although frustrating, and a little hurtful, I have tried to find something helpful about those too. For me, having a mechanism through which people can share their honest thoughts and true feelings is important. It’s one of the ways to help me ensure that I continue to take this job seriously without taking myself too seriously.
 The record should reflect the fact that I am and have always been hilarious. I was making people laugh long before I became a judge. They just laugh louder and longer now.
Judges are like blue jeans. They start out really stiff and uncomfortable but, through daily wear over time, they finally get to be where they are juuuuuuuuuust right. Notably, the window of time between the point where they are perfectly worn in and when they start to wear out is relatively short. I started thinking seriously about retiring from the bench when I felt as though I might be approaching the end of the middle of that comfort zone. I love this job. Because I love this job, as hesitant as I am to leave, I definitely don’t want to overstay. As I explained to a group of lawyers, “I lack humility, not self-awareness.” People telling me about me has contributed greatly to the latter while helping to keep the former in check.
Any list of the qualities that go into making a great trial judge would have to include the ability, after having assumed the position, to stop acting like a trial lawyer without forgetting what it was like to be one. Even so (and even great judges) get frustrated with, by, and at lawyers on occasion. In a courthouse full of lawyers, you can’t swing a negligently injured or wrongfully dead cat without hitting one. Some of lawyers should be grateful that there’s hardly ever a negligently injured or wrongfully dead cat around when the judge needs one. Because the system works best when everyone does their best, judges expect lawyers to always do their very best for their clients. Sometimes they don’t. Sometimes they do, but their best is not very good at all.
All lawyers are endowed by their creator with certain unalienable abilities. The clearest example among these is “intelligence.” In order to be a lawyer, you have to be at least book smart enough to get in and get out law school. But not all law school graduates are created equal. The intelligence gap between the smartest lawyer I have ever known and the smartleast lawyer I have ever known is huge. I have known lawyers with legitimate genius level IQs. I have also known lawyers who I doubt could spell “IQ” if you spotted them the “I.” The fact that most lawyers, like most people (and most judges), fall somewhere in-between, is neither surprising nor particularly important. Being smart is good. Being smart is necessary. But being a “smart” isn’t the same as being “great.” Some lawyers have more “natural ability” or “talent” than others. Life is like that. Some people who have been gifted with lovely singing voices and perfect pitch, some people have not, and some people only think they have. Similarly, some people are naturally gifted with the traits that make for great lawyering. Those gifts, although not easily quantified, are easily recognized. It’s whatever the lawyer equivalent of “graceful” is. Talent is good. It’s better to have it than to not have it, but it’s hardly ever enough.
If you have two lawyers blessed with the same level of intelligence and talent, the difference that makes all the difference is practice, practice and more practice. What all of the best lawyers have in common is not that they are smarter and/or more talented than everybody else, it’s how hard they worked to get that good. They work more. They work harder. They put in all of the intense, grinding, borderline obsessive effort necessary to make themselves great. There are no shortcuts. It isn’t magic, it’s math:
(Intelligence + Talent) x Hard Work = Skill Level
So, the good news for lawyers who aren’t the smartest or most talented is that they don’t have to be to be really good at what you do. The bad news for them is that if they’re not good at what they do, then it’s their fault. The worse news is that the Dunning-Kruger effect (a/k/a the “stupid people don’t know they're stupid” study) may be in effect and they might be a terrible lawyer who thinks they’re a great lawyer – arguably the worst kind of lawyer there is. The worst news, and a source for the aforementioned judicial frustration, is that it can be difficult if not impossible for litigants to tell the difference. The frustrating news is that judges can.
It has been said that good lawyers deserve good judges, but bad lawyers require them. I know that it has been said because I’m the one who said it. Lawyers come and go through the courtroom, so they don’t see the lawyers that came and went before them. They don’t see what the judges who are in that courtroom all day long see, so they don’t know what judges know. Judges know that half of the lawyers who hold themselves out to be “trial lawyers” are not good at what they do – some are so bad they shouldn’t be allowed to do it anymore. Twenty-five percent are “competent,” fifteen percent are “good,” and ten percent are “great.” I know that sounds harsh, but it doesn’t mean it isn’t true. It’s also true for dog walkers, magicians, roofers, and everybody who works at any Waffle House in any city in the America. The difference is that there is no professional or ethical obligation to pack enough poop-bags, pick the right card, or not undercook your grits. Lawyers have both a professional and ethical responsibility not to suck at their job - and if they do, to work hard until they don’t. Judges have a professional and ethical responsibility to hold them accountable if they don’t.
The best part about being a judge on the Circuit Court in Jefferson County (not counting having a reserved parking spot in the basement of the courthouse) is being a judge on the Circuit Court in Jefferson County. The worst part is almost everything associated with getting and keeping the job (i.e., elections). They say that in a democracy people get the elected officials they deserve. Maybe so, but if so, given the convoluted, impersonal, and indiscriminate means through which we choose our Circuit Court judges, we the 1,000,000 people of Jefferson County have historically gotten much better than we deserve.
It used to be whenever I would hear a judge talking about the horrors or their campaign trail of tears, I figured it was the judicial version of a third-year law student talking about their Bataan death march through law school. Having been to law school myself, I assumed that these tragic law school survivors were talking to impress people who didn’t know better. I likewise assumed that judicial election victims were bemoaning their lot for similar effect. As a veteran judicial campaigner, somewhat worse for the wear, I now know better. It is truly awful. I’m not suggesting that time spent running for Circuit Court is worse than time spent doing time in the state penitentiary in Eddyville. I’m saying it would depend on exactly how much time we’re talking about and the congenial disposition of your cellmate. As such, we have been very fortunate to have regularly attracted a critical mass of qualified candidates willing to run the Circuit Court election gauntlet. We have been even more fortunate that so many of those willing and able candidates also happened to have been electable.
If you were to take the number of people in a position to have formed an informed opinion about who to vote for in a Circuit Court judge’s race, multiply that number by the number of people they share their opinion with prior to the election, and then double it, you still wouldn’t have enough informed voters to fill up the shallow end of the 475,000 person voter pool in Jefferson County. Even if it were possible to go to every fair, festival, fiesta, picnic, parade, and political hootenanny in the county from the filing deadline up until the polls closed on Election Day, a would-be Circuit Court judge could never personally shake enough hands or kiss enough babies to win the election. The vast vast majority of the people voting for or against a judicial candidate have no idea who that person is or what a judge actually does. You could fit everything the average voter knows about a Circuit Court election into a thimble and still have room left over for how much they care. That means that after eleven months of hitting up their family, friends, and strangers at large for money and trying anything and everything they can think of to get anyone and everyone they meet to remember their name on Election Day, the election is ultimately decided by people who made their choice for some reason other than “this is the person I have decided is the most capable of doing this very important job”.
The vagaries of judicial elections are such that the difference between winning and losing a Circuit Court race can come down the candidate’s first name (female candidates have a 25-30% advantage over male candidates); last name (almost half of the people elected to the Jefferson Circuit Court since the institution of non-partisan elections share their last name with another elected official), or even the order his or her name appears on the ballot (the first person listed on the ballot has up to an 8% advantage over the field). While judicial elections are “non-partisan”, they are by no means apolitical. The political machinations necessary to secure the endorsements that translate into the most votes are Byzantine in conception and Machiavellian in execution. In the interest of full-disclosure, I freely acknowledge that most of the people who voted for me likely did so because they saw me in a well-placed TV spot and thought I seemed like pretty good guy. I am a pretty good guy, but if I wasn’t, I guarantee you that I could fake being one long enough to film a fifteen or maybe even thirty second commercial.
Why am I telling you this? Because if we are to continue to elect Circuit Court judges (which despite everything that I’ve written up to this point I strongly believe we should) then the community in general and the legal community in particular must take a greater interest in and shoulder a greater part of the responsibility for the outcome. My concern is that if the legal community does not, then one or more self-interested, well-funded politically motivated someone else’s will. It’s already happening across the country (e.g., Ohio, West Virginia, Iowa, Minnesota, and Texas) where special interests have taken advantage of the lack of interest in these races to influence the outcome in the not-so-forlorn hope of gaining favor. Lawyers are appropriately and uniquely situated to make sure that does not happen here. The alternative is to do nothing and simply hope that our luck doesn’t run out.
Among the recurring themes in these View From The Bench essays is the importance of an independent judiciary. The founding fathers were justifiably afraid that this revolutionary new form of democracy would fail. They saw, and I promise I’m not making this up, a country filled with people who they believed were, by and large, pretty stupid and, as such, could be easily mislead by unscrupulous politicians who, once in office, would devote themselves to staying in power by eliminating their political competition. The result: home-grown self-imposed tyranny. Like that could ever happen. Anyway, just to be on the safe side, they created a third branch of government whose job it was to protect minority rights from the potential majority rule inspired political despotism- the independent judiciary. An independent judiciary is integral to democracy but is only as good as it is independent - and it will remain independent so long as people (both those being elected and those doing the electing) remain committed to it being so.
In part one of this epistle, I wrote an entertaining sermon about the voodoo science underlying the non-partisan election of judges to the Circuit Court here in Jefferson County. As a noted amateur expert in the field, I offered my unbiased opinion that while in the modern history of the Circuit Court we have been very fortunate to have had so many qualified candidates elected to the bench, the growing decline in interest in judicial races could certainly bring about ill fortune in the near future. Those of you who share my concern may nevertheless be clearly confused about what can be done to keep this common phenomenon from spreading. Thinking out loud to myself I came up with what I believe are three terribly good suggestions.
NUMBER ONE: Don’t do nothing. Judicial candidates spend the long hours leading up to election day trying to motivate passionately indifferent voters. It can be a lonely road filled with sharp curves. Every candidate needs a small army of supporters to travel that road with them. You don’t need to make judicial elections your full-time hobby or sign on as a paid volunteer for every Tom, Dick and Harry Blackmun who aspires to the bench, but you can do something. Slap a bumper sticker on the window of your car. Plant a yard sign in your driveway. Sport a long-sleeved tee shirt with your candidate’s name on it. It may not make the difference in who wins the election - but it might. In any event, it’s a safe bet that it will make a huge difference to the hard-working person you’re working hard to get elected.
NUMBER B: Provide a tangible $ign of your affection. Free elections are expensive. Even a spend thrift will run through a small fortune over the course of a Circuit Court race. In a country where money is speech - money talks. Because a campaign with a lack of funds is going nowhere, outside income is necessary to get your voice heard by the voting public. Raising those funds is no easy task and every judicial candidate’s least favorite thing to do. This is so even though the voluntary regulations governing judicial races preclude the candidate from directly soliciting contributions. You can lighten his or her load by lightening your wallet.
NUMBER THREE: Phone a friend. The simple math is that there are about 475,000 eligible voters in Jefferson County. Exact estimates are that approximately half of those eligible voters will vote in each Circuit Court race. The winning candidate is the person who can secure the bigger half of those votes. Given that the vast majority of this group of individuals are absolutely unsure who to vote for, the real magic is in significantly increasing the enormously small cadre of informed voters. Lawyers stand alone in the crowd because they are familiar with what a judge does and have at least a preliminary conclusion as to which candidates are well-suited to the job. This common difference makes lawyers uniquely qualified to tell people who don’t know, but who want to know, who to vote for. Every lawyer has the ability to share that untold story with others. As such, they have the opportunity/obligation to phone, text, tweet, snapchat, instant message or use whatever means of personalized mass communication available to them to share what they think they know.
To make a long story short, while there is no foolproof plan to make the Circuit Court election process more perfect, there are lots of things members of the bar should be doing on the front end to even the odds that the most able candidates are also the most electable. If we in the legal community continue to turn a blind eye towards the quiet storm that is brewing, then we will have no one to blame but ourselves if it all goes exactly wrong. We will be the oxymorons who let this minor crisis happen.
If you include “aspire to the bench,” then there are sixty-two (62) oxymorons hiding in plain sight in essay. Knowing how little people enjoy being lectured, I wrote this essay this way in the hope that reader would realize that there is something they can/should be doing and that they might be thinking about the problem while they are looking for the solution. Please feel free to e-mail your educated guesses to me and I will send you the Answer Key. Good luck.
There comes a point in every lawyer’s career when (s)he starts to wonder whether (s)he still qualifies as a “young” lawyer. When you get to that point in your own career, there is simple test. Ask yourself whether at any time within the last calendar year you have felt the urge to denounce and lament the decline of civility and decorum in the courtroom. If the answer is “yes,” then sorry/congratulations, you are no longer a young lawyer.
Only lawyers of a certain age have been practicing long enough to reminisce about the golden age of lawyering (i.e., when they were young lawyers). Each preceding generation of lawyers is shocked and appalled by how each succeeding generation of lawyers has brought the profession to an unprecedented and ruinous all-time low. It’s not unlike how the jitterbug generation was horror-struck by the hooligan rock ‘n roll generation that followed, who, in turn, thought their punk-rock progeny were punks.
As a judge of a certain age, I find myself more and more often waxing nostalgic about the glory days I spent trying cases in the old Jefferson County Hall of Justice. But were the good old days really as good as I remember them? It begs the question; how can anyone remember fondly anything that took place inside the old Jefferson County Hall of Justice? A building so horrible that it was once and best described as being like the men’s room in a bus station but without all the charm. Still and all, having started practicing law when lawyers from the greatest generation were still setting the bar for the bar, I can’t help but wonder about the latest generation. And the more I wonder, the more fully I appreciate why the crooner crowd who listened to Bing Crosby in the 1940s were upset by Elvis and his swiveling pelvis in the 1950s, and why those suffering from Beatlemania in the 1960s were understandably concerned about people struck down by Disco-fever in the 1970s. These may not have been signs that the end times were nigh, but they were signs that civilization as they knew it, was coming to an end. The fact that lawyers appear in court dressed in “business casual” attire, chew gum, and don’t stand up when they address the Court -now that’s a sign of the apocalypse.
I don’t hold the litigants accountable for the fashion crimes they commit in my presence. I did once have to ask a defendant charged with domestic violence who was wearing a “wife-beater” undershirt to please wear a shirt when he came back to court. When he looked puzzled, I explained to him that the reason they call it an undershirt is that it is supposed to be worn under an actual shirt. I do hold lawyers to a different (i.e., higher) standard. It would never have occurred to me to wear anything other than a suit and tie to court. Not a jacket and tie. A suit and tie. It would appear that either or both have become optional. It really bothers me when I see lawyers dressed casually for court. I’m not saying it should. I’m saying it does. To me, and people like me (of whom there are still many), it is disrespectful. Not willfully disrespectful, but disrespectful nonetheless because it evidences a failure to consider that dressing appropriately for the occasion is a sign of respect.
I, like my mother before me, am offended by the sight of people chewing gum in public. I’m not saying I should be. I’m saying I am. It’s not just that I find chewing gum to be extremely tacky, it’s because the extreme tackiness of the gum being chewed allows it to adhere so readily to the underside of counsel table where I find it (and scrape it off) on a regular basis. That’s right - counsel table. I know I could hang a sign on the front door that says, “ATTENTION COUNSEL: CHEWING GUM IN THE COURTROOM AND/OR STICKING ABC GUM UNDER COURTROOM FURNISHINGS IS STRICTLY PROHIBITED” but should I really have to? If so, then what else do I have to tell them not to do? Don’t spit tobacco juice, sunflower seeds or phlegm on the carpet? Don’t carve your initials into or write on the walls? Don’t set anything on fire? As much as my reaction to this behavior makes me look and feel like a crotchety old man yelling at the neighborhood kids to stay off my lawn, I can’t help but feel that I shouldn’t have to yell at them - because they should know that shouldn’t be on somebody else’s %#@* lawn!
Having been raised under the professional tutelage of the Honorable Mark Miller at both the Commonwealth’s and the United States Attorney’s offices, I am physically, mentally and emotionally unable to remain seated when a judge enters a courtroom or, when addressing the Court, cannot open my mouth unless I am standing on my feet. I, like my colleagues who were Millerized as baby lawyers, am chagrinned at seeing seated lawyers talking to sitting judges. I’m not saying I should be. I’m saying I am. I get that it is a formality, but that doesn’t mean it isn’t important. There comes a time in the life of every institution when the purpose underlying the rituals are in danger of being forgotten leaving behind nothing but ingrained but meaningless tradition. Lawyers stand up when addressing the Court for the same fundamental reason that judges wear robes while sitting down and listening to them. It is an outward sign that they are not representing themselves in their individual or private capacity. That what they are doing is neither casual nor personal, but professional. Moreover, and as a practical matter, if they are already standing when the end of the world does come (brought on by gum-smacking lawyers arguing their case while sporting corduroy pants and turtlenecks) they will have a leg up on everybody else in the mad dash to get out of the building before it comes crashing down around them.
Jurors take their role in the justice system and the awesome responsibility that goes with it very seriously. As such, they have little patience and even less regard for those who appear not to. The highest praise jurors give a judge, a lawyer, or any other professional in the courtroom is when they say just that; that is: “(s)he was very professional." That means they recognized and appreciated that whoever they’re talking about was not only well-prepared but also well-mannered and respectful throughout the proceedings. You had better believe that the jury is watching and that they know and notice the difference. How court is conducted by the judge, and how the lawyers conduct themselves in court matters because it matters to the jurors – the people who represent the community and whose trust in the system is integral to its very existence. So it does matter, and this time I am saying that it should.
One of the most enjoyable things I get to do as a judge in the Facebook/Twitter era we live in is to provide a unique photo-op for kids visiting the courtroom by letting them be the judge. Fat kids, skinny kids, kids who climb on rocks. Tough kids, sissy kids, even kids with chicken pox love to have their picture taken sitting on the bench wearing, more often than not blanketed by, my robe – and no I don’t wear a “gown” … I wear the required uniform.
Shortly after I started doing this, I noticed something interesting and more than a little troubling that the aforementioned kids from one to ninety-two all had in common. Regardless of whether they were there to watch their lawyer mom or dad argue a case to the jury or to watch their defendant mom be judged by a jury, the kids were all doing exactly the same thing. Once their initial surprise, excitement and self-consciousness had subsided, they would invariably make the meanest, angriest face imaginable and start banging the gavel like John Bonham banging a drum. Where does that come from? How and why is that their first reaction to being the judge? What do they think judges do? Who’s responsible for that perception?
Given the extremely small number people who are judges compared to the extremely large number people who aren’t, it’s safe to assume that relatively few people actually know, have regular contact with, or have ever even seen an actual judge. In the absence of first-hand experience, most people’s image of judgedom is informed by what they’ve read, seen on TV, or watched in YouTube video clip compilations of whacky courtroom chaos. I wrote down the first twelve (12) fictional judges I could think of to get an idea of how they were portrayed. Here’s who I came up with:
Yikes! As it turns out, judges are not very popular in popular culture. With the possible exceptions of wise old Judge Taylor (who appointed Atticus Finch to represent Tom Robinson in an effort to get him the fairest trial possible - but who also tended to fall asleep during trial, regularly put his feet up on the bench, chewed up and spit out cigars and cleaned his fingernails with a pocket knife in the courtroom), the stoically reserved but thoughtful, loving and droll Judge Hardy (who hasn’t been seen on film since Andy Hardy Comes Home in 1958), and maybe Judge Bone (whose extreme crankiness and fierce temper were somewhat tempered by his well-honed common sense of justice), these characters can most charitably be described as an unhealthy combination of despot, crack-pot, half-wit, burn-out, goofball, and political hack.
It’s worth noting that two out of the twelve names I came up with are cartoon characters, and another one is just a guy named “Judge”. There were others who came to mind but whose names I could not remember at all. There’s the in-the-pocket-of-the-mob judges in The Untouchables and Batman Begins. There’s the three judges from John Grisham’s The Brethren, who hatch a scheme while in federal prison together to blackmail wealthy closeted gay men. And then there’s whoever it is I have been seeing lately in promotional spots for a television series called - that’s right - Bad Judge. Yikes!
But no matter how un-awe inspiring these un-real judges may be, my guess is that the degree to which they have shaped the general public’s perception of the judiciary is nothing when compared to the (mis)impression made by the pseudo-real judges of daytime and late-night television. Judges who can - do. Judges who can’t apparently move to LA and get their own syndicated fake court show. The condescending, often combative, but always disrespectful manner in which Judge Judy, Judge Brown, Judge Karen, Judge “Extreme” Akim, and comedian/game show host cum Judge Steve %#*&ing Harvey, et al, dispense TV justice may make for good television, but it makes for bad reality.
I am convinced that the cumulative effect of their characterization of the courtroom has had a corrosive effect on the public’s perception of how judges are supposed to act and interact with lawyers and litigants. If the only judges a first-time litigant ever saw prior to coming into a courtroom were unreality-TV judges, then it’s easy to understand how freaked out (s)he might be in anticipation of the belittlement and public humiliation they’re likely expecting from the real judge handling their case. Alternatively, it emboldens them to act up and act out as all courtrooms are a stage and all the judges and litigants merely players.
I’m not sure what real-life judges can do to overcome this growing public relations nightmare. If nothing else, we should definitely be aware and wary of the danger of allowing life to imitate schlock. We should make sure that we don’t live down to those low/false expectations by being on time, being prepared, and being nice to the real people who appear before us. It may not be enough, but if we do this often enough for long enough then I hold out the hope that someday some snap-chatting little kid will plop down in my chair, peer out from under the folds of my way too big for him or her robe and actually smile for the camera.
As Ms. Alanis Morrissette might say, “isn’t this ironic?”
“Ironic” (adjective): happening in the opposite way to what is expected, and typically causing wry amusement because of this.
I was recently approached by the producers of a new TV-Judge show to be a TV-Judge. I was getting ready to leave the office when I found a note on my desk that read “call __________ at Big Fish productions.” Everyone else had already left so I couldn’t ask the logical question, “hey, what’s this?” I naturally assumed it was part of some elaborate prank by one or more of the usual suspects in my life capable of such shenanigans. I have omitted the caller’s name to protect the innocent, but because her actual name sounds like a name somebody might make up, I almost didn’t return the call. It turns out she was a real, and very nice person, who wanted me to be on a new show on the Arts and Entertainment (A&E) network called Court Night Live.
I had lots of questions: “Would this be really real or just reality TV real?”; “What kind of cases would be heard?”; “Who are the litigants and how do they get selected?”; “Is it going to be like Jerry Springer in a courtroom?”; and, most obviously, “Why me?”
I liked her answers. The goal of Court Night Live is to be as close to the real thing as possible. The litigants agree to have their real disputes get resolved for real by real judges in real time LIVE on TV from faux courtrooms set up in Chicago, Philadelphia and Tampa. There is a moderator who, in an NFL Red Zone kind of way, switches between courtrooms depending on what’s happening, and the people who are watching get to comment and vote on how they think the cases should be resolved (none of which the judges will see or are bound by). I was intrigued. I thought about it, cleared it with the Judicial Conduct Commission and then, and only then, said “ok … I’ll do it.”
The deciding factor for me in agreeing, and apparently the deciding factor for them in approaching me, to be a part of the Court Night Live project, is our mutual understanding and belief that: (1) to the extent that what happens in a courtroom is entertaining (whether in reality or on reality TV), any drama, tragedy or comedy has to be a byproduct of the process, not the goal; and, (2) any real judge who aspires to be a TV-judge probably shouldn’t be either one. So, “yes,” Alanis, it is ironic that that someone who has raged against the TV-judge machine should agree to be a judge on TV. It’s also ironic that the producers of a TV-judge show, to their credit, picked a guy like that to be one of their TV-judges. Stay tuned. It should be interesting.
*** Court Night Live is scheduled to begin airing at 9:00 p.m. EST on August 10, 2022. ***
Words have meaning. That meaning can be literal, figurative, simple and straight-forward, or nuanced to the point of obscurity. The intended meaning is a creation of the speaker. The perceived meaning is a creation of the listener. When, for example, a lawyer says the word “clearly,” it is intended to mean “obviously.” Clearly, if something is obvious then, by definition, it need not be pointed out. As such, when a judge hears the word “clearly” (usually preceding an argument that sounds purposefully obscure) it is perceived to mean, “Your Honor, I have no idea how to explain this.” When preceded by the statement, “I’ll be brief,” “clearly” means the same thing, but signifies to the judge that it will take much much longer to not explain.
Both intention and perception are best appreciated in context. When a lawyer says, “may I approach the bench” while en route to the bench, they aren’t asking for permission - they’re announcing their presence. “May I approach?” can mean anything from “I need to discuss a pressing matter of law” to “I have a pressing need to go to the bathroom.” The intended meaning is made apparent from the circumstances surrounding the request/announcement, the tone in which it was made, and (particularly with respect to the latter) the way the lawyer walks as (s)he approaches the bench.
The best example of the interplay between intended and perceived meaning is the dreaded, “with all due respect your honor.” It could mean, “I acknowledge and appreciate the deference that should be afforded to someone in your esteemed position." It might not mean anything - just something lawyers sometimes say as a prelude to saying something else, like “may it please the court” or “let me ask you this.”
I can assure you, however, that whatever the lawyer/speaker is trying to say, the judge/listener only hears: “Hey stupid! Let’s go over this again, only this time I’ll speak more slowly and use smaller words so that even a nitwit like you can follow along.” “With all due respect” is to good Southern lawyers what “bless your heart” is to good Southern mothers. It is meant to both provide fair warning about and seek absolution for the scurrilous observations to follow.
Words have meaning. Choose your words carefully in the hope that what you meant by what you said doesn’t get lost in translation.
How you say what you say is, as it should be, influenced by who you are saying it to. However, and especially when it comes to communicating in the courtroom, if you want to increase the chances that you will be understood then you should talk how people listen. I see/hear that not happen every day as lawyers adopt that stilted and stylized speech peculiar to the trade. For example, instead of asking a witness, “where do you work?” they ask, “Could you please tell the ladies and gentlemen of the jury, in your own words, where is it that you are currently employed?” Judges do it too. They might ask a defendant during a plea colloquy: “What is the highest level of education you have achieved” instead of “how far did you go in school?” I’m not sure why they/we do that, but I think it is has something to do with wanting to sound smart. The irony being, of course, that it sounds stupid. Using $5 words doesn’t improve a 5¢ argument, it just makes it harder to follow. If what you are saying is important, then it’s important that say it clearly. You’re not “dumbing it down” by saying it in a way that the people listening will understand it – you’re actually “smarting it up.”
Much to my son Jack’s considerable consternation, any and every time I felt compelled to dole out some fatherly wisdom, I would always end my sage counsel with the tag line: “Here endeth the lesson.” It’s what Sgt. Malone (Sean Connery) says to Elliot Ness (Kevin Costner) in The Untouchables each time he tells him something worth remembering. For Jack, it was a verbal cue that he was free to stop pretending to listen and may, upon completion of the obligatory eye roll, resume his boyhood misadventures.
I doubt that I listened any harder to my father’s philosophical musings over the years than Jack did to mine. However, and likely because I have been listening almost forty years longer than he has, I actually remember and am able to pass along at least some of what my father knows best. Given the legal bent of this missive, I should probably focus on the pearls of his paternal sagacity that relate most directly to being a lawyer and leave out stuff like: “always eat your fat - it will make your hair lie down,” or “always give your fat to the dog - it will make his coat shine.” Not that such brilliant maxims aren’t useful (although I don’t know how I can have my fat and the dog eat it too, and I’ve never understood why the fat won’t make my hair shine and the dog’s coat lie down), but it’s probably best not to try and process so many deep thoughts all at once.
The first bit of legal career advice my father gave me was the last thing he said to me as I headed off to the Georgetown University Law Center. “There are two tricks to law school,” he said, “getting in and getting out. You got in - now get out.” A simple, gentle, and ultimately profound suggestion to approach law school as a process and not a competition; as the necessary means to the end of obtaining my “ticket” to practice law. The result was, as intended, to give me (a small over-achieving fish in a big over-achiever fishpond) the perspective necessary to give myself permission to relax and enjoy the experience. I did. And while I spent way more time in the Smithsonian than I did in the law library, I still got a very fine education and managed to graduate comfortably in the top 100% of my law school class.
Having achieved great success at law school (i.e. I got out), my father shared with me the not so secret formula for a successful legal career. “Show up early for work,” he told me, “and don’t leave until your desk is clear.” This sampler-worthy adage should be written in big bold print at the bottom of every law school diploma and law license. Maybe in Latin for added gravitas and lawyerliness. Translation: “work hard.” Being a lawyer is a profession, but it is also a craft. You learn the job on the job. You get better at it by doing it. The harder you work, the better you get. That’s why, as the saying goes, they call it “practice." Practice doesn’t make perfect, but it does create mental muscle memory that over time makes good lawyering look so effortless because of the considerable effort that has gone into it.
If you want to avoid trouble with clients, colleagues and courts, then do as my father said and did, that is: “return every phone call every day.” An unreturned phone call, like an unanswered letter or e-mail, is a ticking time bomb. Ignore it at your peril. You will find the seven-digit code needed to defuse the device right there on your voice mail. Ignore it at your peril. Time spent reassuring a nervous client, victim, or witness that you are on their case, or speaking with opposing counsel about that case is time very well spent. The return on that investment is realized in the number of happy clients, victims, and witnesses (more), gray hairs (fewer), and bar complaints (none). More to his point for lawyers of my generation, lawyers of my father’s generation and temperament solved about the same number of problems on the telephone that we manage to create through e-mail. The best way to ensure that someone understands what you’re saying is to say it to them. Unlike an e-mail, which is devoid of tone, nuance and feeling, a telephone conversation is an actual conversation. E-mail may be a very efficient way to convey information, but it is a terrible way to communicate. Lawyers are in the communication business and the telephone is still one of the most important tools of the trade.
Arguably the most important thing my father ever said about practicing law was his admonition to “be nice to everybody, not just the people you think you have to be nice to.” I recognize that anybody who has to be told that they should be nice to people is probably not someone who will likely take that advice to heart. Not everybody is nice. I have heard lawyers talk to secretaries and clerks in a tone of voice that should be reserved for war criminals and anyone who has ever played or rooted for the Chicago Blackhawks (or whoever happens to be playing my beloved St. Louis Blues that day), and then turn around and greet a judge or fellow lawyer like a favorite (i.e. old, rich, and childless) uncle. Not good. Even if being nice wasn’t the right thing to do, it would still be the smart thing to do. The courthouse is run by secretaries and clerks. If you think they don’t keep a mental list of nice people who they are only too happy to help, and a second mental list of not so nice people who they are only too happy not to help, then you’re probably on that second list. They can and will (and probably should) make it harder for you than it would be if you weren’t such a jerk - and their Judge will back their play. Be that as it may, the larger point he was making to me, and that I have in turn tried to make to my son whenever the occasion presents itself, is that while people may want other people to think of them as smart, funny, good looking, successful, etc., the only thing that really matters, and the measure by which we will all ultimately be judged and remembered in the end, is simply how we treat other people. Here endeth the lesson.
My father was among the last of a generation of remarkable lawyers who set the bar for everyone called to the bar thereafter. He stated practicing law in 1961. He was admitted to practice in eleven states and the District of Columbia, and argued cases at all levels of the state and federal courts including the United States Supreme Court. He was known not only as a “lawyer’s lawyer” but as a “litigant’s lawyer,” for approaching each case as a problem to be solved - not a fight to be won. He was admired by his colleagues for his exhaustive preparation, keen intelligence, unrivaled wit, sartorial splendor, unwavering civility, and respect bordering on veneration for the important role that lawyers play in our society. His devotion to his chosen vocation drove him to become a leading advocate for the legal profession. He served as President of the Louisville Bar Association, President of the American Judicature Society, Chairman of the Fellows of the American Bar Foundation, and Chairman of the House of Delegates and President of the American Bar Association. He traveled the country and the world (including trailblazing visits to China and the U.S.S.R.) promoting the rule of law, equal access to the courts for the disenfranchised, juvenile justice, prison reform, and the preservation of an independent judiciary. He was recognized for his efforts with what he humbly described as “an obscene” number of awards, honors, and tributes.
Having greatly and gratefully benefitted as a young lawyer from mentorship by outstanding attorneys with years of experience, “Big Stan” paid this gift forward many times over by always making time for young lawyers wanting or needing advice, counsel, or just to hear a great story from a masterful storyteller in a beautiful expertly tailored suit.
On January 2, 2015, at 2:00 p.m., the members of the 2015 Jefferson Circuit Court term were (re)sworn into office. On January 2, 2015, at 1:30 p.m., the Jefferson Circuit Court Administrator let me know that I, as Chief Judge, would be called upon at 2:00 p.m. to say a few words on behalf of my Circuit Court colleagues to the assembled public officials, blood-relatives, well-wishers, and judicial groupies.
Knowing me, she knew that if she gave me too much time to prepare a speech, then I would take up too much time giving the speech I had prepared. The result was not only an event that began and ended on schedule, but a brand-new exception to the hearsay rule. The “short-notice speech” exception recognizes the inherent trustworthiness of unprepared remarks (i.e., made without sufficient time for either embellishment or self-censorship).
For those of you who were too young (or not born yet), lived out of state, were bed-ridden, or had a family emergency that prevented you from attending the aforementioned Swearamony™ in person, here is the text of my semi-extemporaneous demi-speech.
Two Score and Two Years Ago
On behalf of my colleagues, we thank you for the opportunity to serve on the Jefferson Circuit Court. When we say, “thank you” what we really mean is – THANK YOU! I know it may seem like there are as many judges here in Jefferson County as there are stars in the sky, but the reality is that the opportunities to serve as a judge are relatively few and even farther between. So, all of us recognize not only how fortunate we are to have the chance to be a judge, but how fortunate we are to serve as a judge on the Circuit Court; that is: to have the best judge job there is.
Serving on the Circuit Court bench, in addition to be being surprisingly and sometimes wildly entertaining, is both intellectually satisfying and sincerely rewarding. It is the best public service job I have ever had. It is the best public service job I can imagine ever having - and not just because it comes with private bathroom and a reserved parking spot in the basement of the courthouse. Perhaps Abraham Lincoln said it best: “There is no greater service one can provide to the community than that which is provided through service on the circuit court.” Profound words. Deeply profound words. Or at least I thought so when I made them up a few minutes ago and then, just now, attributed them to Abraham Lincoln.
To be fair, I did say “perhaps” Abraham Lincoln said it best. But what I think President Lincoln was trying to say (or would have been trying to say if he had actually said it) is that service on the Circuit Court is all about service. Service to the Constitution, to the law, and to the litigants and lawyers and the people in the greater community who are impacted by the decisions we are called on to make.
I was gratified to discover when I was first appointed to the bench how appreciative the people already there were for their opportunity, and how mindful they were of the obligation that comes with that opportunity. I have since that time been inspired every day by judges who come to work every day thinking about how to do the job they love even better. So, I thank them for their outstanding example of service, and on behalf of my colleagues, we thank you for the opportunity to serve on the Jefferson Circuit Court.
The key to truly outstanding extemporaneous speaking is exhaustive preparation. Sure, “off the cuff” remarks can be good or even great on occasion, and the high-wire working without a net adrenalin rush you get on those occasions can be very intoxicating. That being said, and while I understand how difficult it can be to do well, I am still an extremely harsh critic when it is done poorly or, more precisely, when it is done on the wrong occasion. Think about all of the cringe-worthy wedding toast you’ve heard offered “off-the-cuff” or even “from the heart”. First of all, it’s a wedding - not a #@%*! surprise party. All of those people knew long before they were handed the microphone by somebody’s drunk uncle that they were going to have to say something. The ensuing five to fifteen minutes of rambling non-sequiturs aside, it’s the fact that they didn’t spend any time thinking about what they might say that’s the problem. It is a missed opportunity and it’s disrespectful to the occasion.
The same holds true for lawyers and judges when it’s our turn to talk. It is neither necessary, nor preferred for that matter, that we give a speech we prepared for the occasion, but we do have to be prepared to speak. To do otherwise is disrespectful to the occasion even on those rare occasions when those unprepared remarks somehow come out remarkably well.
Here’s what sounds like a genuinely terrible idea. If people have a conflict they can’t resolve on their own, get twelve complete strangers who know absolutely nothing about the facts and have zero expertise on the subject matter and ask them to figure out what happened as a matter of fact and what should happen as a matter of law. Who’s with me? While people previously presented with the limited options of trial by combat or ordeal might understandably have jumped at the chance to explain themselves to pretty much anybody, nine-hundred years removed from the prospect of being brained with a mace or drowned on a dunking stool, more and more people find the prospect of appealing to a jury of their peers less and less appealing. You’ve probably even heard some courthouse wags say the oft’ repeated bon mot, “justice is way too important to leave up to twelve people who couldn’t find a way to get out of jury duty.” For some reason people don’t trust that other people are capable of doing the important work we ask jurors to do. I think they think there must be a better way. I also think they’re wrong.
One of the most interesting parts of the judge job is that I get to watch juries do what they do up close but not personal. It is perspective that is different from and unavailable to the lawyers and litigants caught up in the fray. It has allowed me to more fully consider the genius of the twelve-person jury in a way that was not possible when I was trying cases and couldn’t help but see the jury’s decision as a “win” or “loss.” As lawyers, we take it for granted that any time a jury does what we asked them to do, it is because of the terrific job we did asking them to do it. When they don’t, we assume it must because they didn’t listen, didn’t care or were just too stupid to understand. The view from the bench is very different. The immense responsibility of making the decision in any case is awesome. When a person goes from being an individual on jury duty to being an actual juror on an actual jury, it gets very real very quickly for them. The weight of that responsibility is not something they carry lightly. I have no doubt but that jurors do what they do because they are satisfied that it is what the facts and law oblige them to do. If I ever go back to trying cases, the most important lesson I will take back with me is that it isn’t the lawyers’ job to get over on or get around the jury. The lawyers’ job is to help the jurors do their job.
You should assume that other people take their obligation as jurors just as seriously as you would if you were on a jury. Just as seriously as they/you should. So much so that everything they do is driven by their individual and collective desire to do what is asked of them as well as possible, and the corresponding fear that they won’t. That’s why they listen so hard that they are both physically and mentally exhausted at the end of each trial day, but still can’t sleep at night. That’s why they ask to review testimony and send out all those notes asking the court for information, clarification, and guidance. That’s why they are so willing to deliberate well beyond the point that, from the outside looking in, the parties think they should have to. It’s also why after they reach their decision, they are so anxious for affirmation and/or absolution from the Judge.
Most judges dismiss the jury from the jury room rather than the courtroom. This post-verdict get-together gives the judge a chance to personally thank the jurors for their service and see if they have any questions. They always do. But invariably and inevitably the answer they are looking/hoping for is, “Yes. You got it right.” So, I make sure I answer their questions in way that assures them that they did. I can say and do that with confidence in every case because, regardless of what they ended up doing, they are the only twelve people in the world who listened objectively to all of the evidence knowing that they were going to have make the decision, and then talked about it until they were able to come to a decision they could all live with everyone else living with. In a world where you can’t get twelve people to agree to leave a burning building, twelve people agreeing on the facts, the law, and the attendant consequences should inspire extreme confidence and maybe even a little awe.
The jury system is a Tinkerbell Institution. It only exists so long as people believe in it. I truly believe, and I think you should too. So, the next time you hear those magic words, “the jury decided today,” don’t shake your head, grit your teeth, or roll your eyes. Clap your hands!
I am an unabashed jury fanboy. I love to watch them work. I love how hard they work. I love watching them take great care in doing the work they do, and great pride in having done it well. But it is a process – sort of the jury service equivalent of denial, anger, bargaining, depression, and acceptance.
Step One is the feeling of incredulity that comes with getting a jury summons (i.e., “You’ve got to be kidding! Why me?!”). This is immediately followed by Step Two in which the recipient lets go with a series of colorful expletives as a precursor to trying to figure out how to get out of jury service – a/k/a Step Three. Step Four is showing up. Regrettably and for a wide variety of reasons, some totally legitimate some totally not, a huge percentage of the people who are summoned for jury duty don’t make it to Step Three (e.g., in Jefferson County we have to send out approximately 2,500 summonses to get the requisite 250 jurors every two weeks). Those who do make it to the courthouse experience the general malaise and sulkiness that comes with Step Five (i.e., “I’m here because I have to be, but I don’t have to like it”).
Where it all comes together to make the jury system so amazing is Step Six – acceptance. People rise to the occasion every time once they accept the awesome responsibility of be being a juror. It gets real when they get to the jury pool, it gets realer when they go through jury selection, and it gets realest when they find themselves sitting on the jury. Everything else goes away and their only concern is doing the job they didn’t ask for and don’t won’t as well as they possibly can. That gets us/then to Step Seven – appreciation. When jurors leave the courthouse, they are glad they came. They got to see how the justice gets made and it wasn’t what they thought it was going to be. They see how seriously everyone takes their respective responsibilities within the system and how much those people respect and value how seriously the jurors take theirs. When someone who has been on a jury hears the magic words “the jury decided today” they hear it differently than they did before. Where they once might have been indifferent or skeptical, they are now deferential. They take it on faith that the twelve people on that jury were sincerely committed to doing the job they probably didn’t want. They assume that those people listened attentively to the evidence, discussed their opinions respectfully, applied the law strictly, and decided whatever the case was fairly. They think that whatever those jurors decided, they did what the facts and the law obliged them to do. They hear it that way, because that’s what they did when they did their jury duty – and they’re right.
It’s not my job, my place, or my intention to sit in judgment of Kim Davis. Is it hypocritical for someone who got pregnant during an extra-marital affair with her soon to be next ex-husband to be such a fanatical defender of the sanctity of marriage? That’s not for me to say. Is it true that her extra-conjugal visits with soul-mate number two took place behind a dumpster at the county courthouse while he was an inmate in the county jail, and she was supposed to be at work in the county clerk’s office? I don’t know for sure. I wasn’t there at the time. Do I have an opinion about who should be cast to play her in the movie version of her life; Bride and Prejudice: The Kim Davis Story? Not really. Although I assume, like everybody else, that it will be either Kathy Bates or Melissa McCarthy depending on their availability and whether Martin Scorsese or the Cohen brothers sign on to direct. If someone asked me to make up a song about Kim Davis that could be sung to the tune of the theme from the Beverly Hillbillies, could I do it? Well – yeah:
Come and listen to my story, ‘bout a clerk named Kim,
Who won’t let couples marry if they ain’t a “her” and “him”
Then one day, while ignorin’ her responsibility
A judge locked her up and he throwed away the key.
Jail that is. The black hole. Cell block C.
Well, the next thing you know Kim’s back in old Morehead,
Reviled and revered ‘cause she refused to let gays wed.
She swore to support the Constitution of these United States,
But not, so help her God, any part she really hates.
“Religious Right” tool? Media star!
But wait - hold the banjos! That’s not the point, and this is not about Kim Davis. This is about how people who think like Kim Davis and people who don’t like Kim Davis alike fail to understand or appreciate the vital role of an independent judiciary in our system of government.
The late Judge John Heyburn wrote the opinion in Love v. Beshear which struck down Kentucky’s “sanctity of marriage” law, and which was later affirmed by the United State Supreme Court in the Obergefell v. Hodges decision requiring states to recognize same sex marriages. He, a life-long Republican, was appointed to the federal bench by conservative Republican President George H.W. Bush. He was also a long-time political ally and close personal friend of conservative Republican Senator Mitch McConnell. Judge David Bunning ordered that Kim Davis be jailed for her failure to comply with his Order directing her to comply with the holding in Obergefell. He too is a life-long Republican. He was appointed by conservative Republican President George W. Bush and is the son of conservative Republican Senator Jim Bunning.
If you think that a judge’s political pedigree is what matters when it comes enforcing the rule of law, then you are not alone. You’re wrong, but you’re not alone. Enforcing the rule of law is what judges do. But when these judges did, people seemed genuinely surprised. It’s as though they never considered the possibility that a person they considered to be “one of them,” or “one of them,” would turn out to be one of us (i.e., judges) instead.
Judge Heyburn gave the best explanation I’ve ever heard for the role of judges in our system and in our society. It was at a post-Love Opinion program styled as a “debate” over the issues surrounding same-sex marriage. As we listened to the sanctity of marriage invitee criticize activist judges who were unaccountable to the people when acting in blatant disregard of the will of the majority, it became apparent that the speaker’s grievance was not only with Judge Heyburn’s decision, but with the fact that the decision was his to make. Judge Heyburn patiently explained that the founding fathers thoughtfully and purposefully created a system of government that promotes majority rule while protecting minority rights, and that they recognized such a system could not exist but for an independent judiciary. But for those “activist” judges, he went on to say, black children and white children would still be going to separate but unequal schools. An institution which most certainly represented the will of the majority at that time.
I understand that there are people who do not like how our system works. But I worry that those people do not understand that that is how our system works, and how it was intended to work. It is, moreover, why our system works. Under our system of government, as Judge Heyburn stated so eloquently, “even sincere and long-held religious beliefs do not trump the constitutional rights of those who happen to have been outvoted.” Because judges understand that, no one should be shocked or even surprised when a judge does the job (s)he swore to do. This is not about Kim Davis, but if it was, this would be the part where I would suggest that if she can’t do the job she swore to do, then she should go do something else.
Kim Davis was the elected County Clerk in Rowan County, Kentucky when in 2015 she decided that her opposition to same-sex marriage relieved her of the obligation to issue marriage certificates to same-sex couples. A federal injunction and attendant media $#!+storm ensued. She was jailed, briefly, by Judge Bunning for her refusal to abide by the law and the court order making it clear that government officials can’t just decide to deny someone his or her (or in this case “his and his” or “her and her”) constitutional rights because they don’t think that particular someone should have those rights.
She subsequently managed to stand her moral high ground, and avoid going back to jail, by issuing marriage licenses to everyone, but not deigning to sign them personally for anyone who, as the song goes, “ain’t a 'her' and 'him'." The good people of Rowan County voted her out of office in 2018. In 2022 Judge Bunning, as part of a civil lawsuit filed against her in federal court, found that she willfully violated the constitutional rights of the same-sex couples who she had refused to issue a marriage license. That lawsuit, which includes the potential for both actual and punitive damages against her and Rowan County, is still pending.
For most lawyers, the only judges we really think of as real judges are the judges who were already sitting comfortably on the bench when we first stood awkwardly before it. These were mysterious all-powerful first-nameless creatures of indeterminate age and unknown origin. Having only seen them in their presumptive natural habitat, it was impossible to imagine that they had, or even had any desire to have, a life outside the courtroom. We all likely remember when, as intrepid young lawyers, we first encountered one of these judicial beasts out in the wild (e.g., at the movies or the grocery store). A singularly unsettling experience brought about by our brains’ inability to orient us to a reality in which Old Judge Soandso exists as a real person.
The first time I took the bench as an intrepid young judge was also a somewhat disorienting experience. Not only was the view from the bench both literally and figuratively different than what I had been used to from counsel table, but I didn’t feel like I was sure those real judges must have felt when they first took the bench. I don’t know if I expected to suddenly feel “judgey” or what, but when I didn’t, I did the only thing I could do - I faked it. I pretended to be the judge. Lawyers and litigants had the courtesy to pretend right back until, over time, we all more or less got used to it. Maybe that’s how it was for the real judges as well. Maybe they didn’t ascend to the bench fully formed as the judicial icons they were by the time I got there. Maybe they had to figure it out along the way just like the rest of us.
I can’t talk a decision-challenged criminal defendant out of taking an unwinnable case to trial the way Judge Corey could (a/k/a the “if you go to prison, you’re gonna’ end up as housekeeper to Godzilla” speech). I don’t have Judge McAnulty’s ability to stop a lawyer (and that lawyer’s heart) just by looking at them over the top of my glasses. I can’t make “you may be remanded to custody” sound anywhere near as courtly and welcoming as Judge Schroering or Judge Shobe could. I’m not as kindhearted as Judge O’Bannon or as smart as Judge Potter, and while I might actually be as funny as Judge Schneider, I can’t do whatever it was that Judge Ewing did that made lawyers want to do and be their absolute best whenever they appeared before her. But the judge I end up being will, hopefully, be the good parts of me well informed by what I have had the good sense to adopt and adapt from those who came before me. This judicial legacy is a great and much appreciated gift. It’s what allows for the possibility that, to a generation of lawyers who don’t know any better because they didn’t know me when I wasn’t Judge Chauvin, I might someday be one of those real judges they tell the next generation of lawyers about.
There are, of course, judges and lawyers who from the very beginning of their legal careers exude complete confidence in their abilities. Maybe they are as good as they appear to think they are. Then again, maybe they’re just @$$holes. When I said that I “faked” it at the beginning, what I meant was that I showed up every day and worked hard all day to try and figure out what I was doing. Not being sure of yourself and knowing that you don’t already know everything is more than OK, it’s part of what motivates you to keep showing up and keep working hard. It doesn’t mean you’re not a “real” judge or a “real” lawyer if you never get to the point in your legal career where you have 100% confidence in your abilities. It means that you are probably just as real as it gets.
I believe I could be wrong. About things I think are enormously important. About things I can’t believe anybody could possibly think are important at all. I am definitely wrong about something. I am potentially wrong about everything. I doubt that I’m wrong any more often than other people. Like other people, I think what I think is probably right. Being open to the possibility that I could be wrong, however, makes me open to what other people think and willing to listen to what they have to say. For me, there is no shame in being “wrong.” Being “wrong” isn’t the same as what my father used to call being “wrong-headed.” The “wrong-headed” include those who won’t allow themselves to be bothered with or confused by the facts once they have their minds or their hearts made up. They are often wrong, but never in doubt.
I believe there is no right or wrong when it comes to matters of personal preference or opinion. I also believe that a good many of the things people feel compelled to be right about are matters of personal preference or opinion. My kids, who are otherwise perfect in every way, argue passionately about whether what they currently “love” or “hate”, is “awesome” or “sucks” (e.g., Papa John’s Pizza, the WWE and/or Justin Timberlake). Whenever I hear them doing that, I seize the teachable moment and deliver what I think is an awesome parental lecture in which I remind them that just because they don’t like something doesn’t make whatever it is bad, and doesn’t make other people wrong or stupid because they do. They have heard this lecture many times. They do not think it is awesome. They think it sucks. Unfortunately, the mindset in which everything must be categorized as “good” or “bad”, “right” or “wrong” isn’t limited to my children or to fast-food, sports-entertainment, and pop-singers. It too often carries over into adulthood and can go straight to the heart of other people’s most deeply held convictions. The result is a zero-sum (“if you’re not with me you’re against me”) universe in which people are conditioned to zealously defend the rightness of what they think or believe and be dismissive or disdainful of those who think or feel differently. Historically speaking, this never ends well.
I believe we should embrace the possibility that we could be wrong. About things we think are enormously important. About things we can’t believe anybody could possibly think are important at all. If we do, then we will likely become far more willing consider what others have to say on the off chance that they may be right. We may even find that other people, even if they are not with us, are not against us. I believe we are all capable of doing this - but I could be wrong.
This I Believe is an international organization engaging people in writing and sharing 350 to 500-word essays describing the core values that guide their daily lives. Based on the popular 1950s radio series of the same name hosted by Edward R. Murrow, it is featured regularly on National Public Radio. Every time I would listen to someone else’s essay I would think about writing one of my own. I finally stopped thinking about it and started writing it.
I put this essay in the very front of the textbook I wrote (Trial Practice Makes Perfect) for my trial practice class at the Brandeis School of Law at the University of Louisville. I put it there, like I put it here, as a reminder to myself and anyone who reads what I write that me thinking I’m brilliant and hilarious doesn’t make it so. To be fair, I’m fairly certain that I am hilarious, but I respect everyone’s right to disagree. Both they and I have the right to be wrong and to change out minds about what we thought we were right or wrong about.
I encourage you to write your own This I Believe essay.
I think the writing exercise itself is a good one, but you might also find out something interesting and worthwhile that you didn’t know about yourself in the process. However, and as you now know, I could be wrong.