Law School Daze
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 caustic 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.
There’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 tried not to. I mean, I would still make the resting judge face, but I would also tell the lawyers what they were doing that was making me make that face. I wanted them not to do whatever it was because doing it was 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 miss him. A young lawyer once said that to me in case where the defendant was convicted or 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 disagrees 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 would 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 would stop the proceedings and have a hearing for me to decide whether it was true that (s)he was being untruthful - with the further understanding that if I find that (s)he was lying then I would 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 $3,000 wiser but poorer who didn’t believe me.
I don’t know if my way (i.e. sharing the view from the bench) was a better way. It just seems like it would be in the lawyers’ and the lawyers’ clients’ best interest to know my way before they before they mention that none of Defendant Doe’s nineteen kids have seen him since he got locked up or call opposing counsel a “@$%# liar?