My Friend Frenchie
“Porkchop - you can’t clean a floor with a dirty mop.”
-Jack “Frenchie” Helm
(Talking to his friend 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 who's 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!!!
Hitting the Lawyer Books
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 tone and attitude 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.
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?
Here’s Looking at You, Gavi’s
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.
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.
Hey! You Kids Get Off My Lawn!
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, you guessed it, 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 civilizedation 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 have never been one to hold litigants accountable for the fashion crimes they commit in my presence. I did once have to ask a defendant charged with domestic violence who showed up for arraignment 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 have always held 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 found (and scraped it off) on a regular basis. That’s right - counsel table. I know I could have hung a sign on the front door that read, “ATTENTION COUNSEL: CHEWING GUM IN THE COURTROOM AND/OR STICKING ABC GUM ON THE UNDERSIDE OF COURTROOM FURNISHINGS IS STRICTLY PROHIBITED”; but should that have been necessary? If so, then what else would I have to tell people 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 may make 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 - they should know that shouldn’t be on somebody else’s %#@* lawn!
Having been raised under the professional tutelage of the Hon. 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 its 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 not only a sign of respect for the proceedings, but a reminder to the participants that the rules that fix their professional responsibilities and govern their behavior inside a courtroom, which may be different anywhere/everywhere else, are worthy of their respect. 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 sweatpants and a golf shirt) 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.
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.”
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.