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.
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.
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. ***
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.
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.