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I am retiring after sixteen years as a trial judge in Cedar City. There are new attorneys who only know legal terms from law school. I am writing this article to provide them
insight into what some of those terms really mean, and to give some other observations.
Advisement:
Experienced trial judges will say: "There are complex issues presented in your arguments regarding the Motion for Summary Judgment that I need to reflect upon, so I am taking this case under advisement." We say this because it makes us sound way smarter than being honest and blurting out: "Whoa, I'm in over my head- this is the first medical malpractice case (or whatever) I've ever seen, and I don't know what the hell you attorneys just said, so I gotta read the briefs again and watch the video tape of this before I do anything."
Common Sense:
Not a legal term, but sometimes quoted as one by new lawyers. Example: "It's just common sense, your honor." When this is said in answer to the judge's question, "Do you have any statutes or cases supporting your position?," you might just as well start packing your briefcase. Unless, of course, the other side is saying the same thing. In which case the argument pretty much goes:
"It's just common sense your honor."
"It is not."
"Is too."
"Is not."
In which case the judge has to rule on what he or she thinks is common sense. And we all know that's a frightening prospect.
Constitutionalists:
People who have access to the web and copy machines, and share their patriotic ideas with each other. They are characterized by a strong belief in the basic right to RANDOM CAPITALIZATION in pleadings, use of the term "admiralty law" in a landlocked state, the right of all Americans to ignore traffic laws because of the UCC (that's right- the Uniform Commercial Code), and an obsession with the thread color on flag borders- all of which are apparently covered by the Constitution of the United States of America. Who knew?
Cross Examination:
A tough thing to do well, and I certainly was no master at it. Too often with new or rusty attorneys, cross examination is where an attorney has an opposing witness repeat damaging testimony, and argues with him as he goes along. The more damaging the testimony, the more times it is repeated, and the angrier the attorney gets. Also misused to let the adverse witness clear up any inconsistencies, rather than tactically saving those inconsistencies for exposure during closing argument. In sixteen years I never saw a true Perry Mason confession occurring as a result of the cross examination of a witness.
Domestic Commissioner:
I've done a lot of divorce cases, and 95% of the time I'm on familiar ground, and know the statutes and case law (custody, property settlement, visitation, etc.). But if it's the other 5% of the cases and it needs an immediate answer (the kind you get reversed on- usually with conflicting orders from other states, and a confused cop asking me what to do as she holds the parents apart), I call a Domestic Commissioner. And surprisingly, they never say "No- you're not in my district," or, "If you don't know the answer- why do you get paid 10% more than me?" One time I called Mike Evans during a lunch break where we both had about ten minutes before going back into court. He fired off rapid answers that sounded like a cross between NYSE stock quotes and a Gabby Gourmet monologue. "Obviously Bob, what you have here are PKPA issues layered over a foundation of UCCJA considerations. Blend them in with 78-45c-101, then separate with the three Jones prongs, and place on the counter to allow it to rise until bifurcated. Then place it in the courtroom and allow to simmer until done. And don't forget to use oven mitts." At least that's what it sounded like. But he'd reminded me where to start reading.
Evidence:
Sometimes after a jury trial, a new attorney will ask me, "Why did I lose? What did I do wrong?" And I'll give them my opinion if I saw something I thought they might want to change. But often I tell them they have done nothing wrong; that they just didn't have the facts on their side. I don't think style wins out over substance. None of us are as smooth and resplendent as actors in a courtroom movie. (This isn't to say you can just sit back and expect your evidence to present itself and win the case- see preparation,
below.) I meet with jurors after a verdict if they want to. More than once they have volunteered that they thought the attorney for the prevailing party didn't do a good job, or that they
thought the losing attorney did a really good job- they just thought the plaintiff/defendant should prevail based on the evidence. (They just volunteer this- I have never asked jurors to
critique lawyers, nor do I comment on their observations. I just say "hmmm.") By the same token, if a judge compliments both sides on the way the case was litigated, the judge
means it. Judges love cases litigated well by both sides.
Ludicrous: A word some Northern Utah attorneys use (in Southern Utah we prefer the all-purpose phrase "fer
ignernt") in correspondence and pleadings- usually in discovery battles for some reason. Example: "It is ludicrous for opposing counsel to even suggest that my answers to
interrogatories were less than ...." By doing this, though, the author unwittingly alerts the trial judge that the court will be dealing with an emotionally overwrought attorney (the
author- not the target of the insult). If both counsel sprinkle their papers with this word, and the trial judge doesn't cancel oral argument on pending motions and just go off the memoranda, that
judge deserves the contentious hearing he or she receives. And while I'm on the subject, there is an idea being floated by the Utah Supreme Court's advisory committee on professionalism
to have a specialized commissioner hear discovery disputes. On the one hand, this is an excellent idea applauded by trial judges. On the other hand, anyone willing to take that job should be administered a saliva test as part of the screening process.
Model of Clarity:
This is one of those appellate court comments that indicates that the trial judge's performance was less than exemplary. Example: "The trial court's findings of fact, while not a model of clarity, are adequate for review...." Ouch! Kind of like opening the newspaper and reading: "The figure skater, while flailing his arms wildly and falling on his butt, did manage to complete the routine without serious injury." I haven't been the recipient of this barb, but I've worried about it. However, turnabout is fair play, and you too can use the phrase if you find an appellate opinion to be lacking. You just need to realize that if it shows up in the appeal transcript, you're going to be dead meat.
MUJI:
Model Utah Jury Instructions. Excellent civil jury instructions crafted after years of painstaking work by a cross-section of experienced trial attorneys. Still, even if these instructions are read in segments, the judge who makes the mistake of making eye contact with the jury after reading the lengthy final instructions, will see expressions that range from drooling coma-stares, to homicidal rage, depending on the attention span of the individual juror involved.
Preparation: Attorneys who know the facts, what the witnesses are going to say, the strong and weak points of their case, and the relevant statutes or cases stand an improved chance of prevailing. When an attorney comes into court, the jury and I don't care where he or she went to law school, or what size of law firm they're in, or whether they won or lost their last case- all we care about is how prepared an attorney is to try that day's case.
Reasonable Doubt: Tough to define, and uniform criminal jury instructions are being studied now, too, a la MUJI. In one Utah Supreme Court decision, the following language was "approved" (that is- it wasn't reversed, which is as close to "approved" jury instructions as you can generally get). I think a lot of courts use it:
"....A reasonable doubt is a doubt based on reason and one which is reasonable in view of all the evidence. It must be reasonable doubt and not a doubt which
is merely fanciful or imaginary or based on wholly speculative possibility. Proof beyond a reasonable doubt is that degree of proof which satisfies the mind, convinces the
understanding of those who are bound to act conscientiously upon it, and obviates all reasonable doubt."
This language has always struck me as being disturbingly similar to the Mr. Ed theme song ("A horse is a horse, of course of course, unless the horse...." or however that song went.) If you look at the jurors at this point you will know who has been listening. They will be the ones with the "Say what???" looks on their faces. Judges are timid about changing "approved" instructions. The bravest I have been with this particular instruction is to change the word "obviate" to "eliminate," because when I first saw it, I didn't know what "obviate" meant, and no jurors I asked in two straight felony trials knew what it meant. (And to you Salt Lakers smirking and chuckling right now at us rubes, all I can do is paraphrase that legal scholar, Lt. Sippowicz, and say, "Obviate this you smog-breathers.") I looked in the dictionary and found a synonym (whatever that is) for "obviate," and everyone has been happy ever since.
Rulings:
Don't take an adverse ruling personally. I rule against attorneys I respect every day, and so does every other judge. No judge thinks, "I'm going to enter judgment against plaintiff/defendant because I hate his attorney." We rule according to what we think is right. And sometimes we're wrong. I have to give this same advice to myself sometimes. When I get an envelope from an appellate court, I close the door, rip open the envelope, and scan the opinion for the overall ruling. Then I pretty much go bipolar. If it says "affirmed," I feel affirmed, and brilliant, and vindicated. This feeling lasts about three seconds. Then I think, "Of course I was affirmed. I was right. I'm supposed to
do it right." And the euphoria evaporates. And if it says "reversed," I usually think "that was a close case- I wish I'd ruled the other way." But other times,
I'm sorry to say, I feel stupid, and embarrassed, and angry. So I pull out the case file and re-read it. If I agree that I made a mistake I vow not to do that again, and if I feel that the appellate court was wrong and I was right- well .... hell.... I'm still stuck with the decision (like you usually are with mine) because it's what the person one step up the ladder thinks that is controlling, so I still vow not to do that again. I stew about it for a little while, and then mentally stick it on a shelf and close the cupboard door. I suggest you do the same thing, because we can't do nimble footwork in the courtroom if we have a death grip on a bunch of baggage. And it's not personal.
Voir Dire: Questions asked of jurors so that you can intelligently remove potential jurors with improper perspectives and biases that would hurt your client (bad juror), and select jurors with proper perspectives and biases that will be favorable to your client (good juror). This ensures an impartial jury- or so the thinking goes. I'm told "voir dire" is properly pronounced: "Vwaaah-dear." Kind of like Barbara Walters trying to say the word "water." (Okay, like Gilda Radner might have had Baba Wawa try to say "water.") But if you say it that way in Southern Utah, you'll sound like a "fancy-pants," and the auto mechanics on the jury will snicker. On the other hand, if (like me) you say it the other way, "Vore-die-yerr," all multi-syllabic, and slowly drawn out, you sound like a hick, and people will look to see if you scraped the manure off your boots before you came in. So I guess either way you're screwed.
"With all due respect to opposing counsel:"
Say this just before firing below-the-belt, personal insults at opposing counsel. And if the other attorney says it, take a deep breath and tighten those sphincters, 'cause here it comes back at you.
Good luck, and you're welcome. (Oh, and don't bother to ask another judge if I speak for them- I don't. We all see ourselves as independent contractors.)
EDITOR'S NOTE:
Robert Braithwaite is retiring after sixteen years as a Circuit and District Judge in Cedar City, having been appointed to the Fifth Circuit Court in July 1987 by Gov. Norman H.
Bangerter. He became a District Court Judge in January 1992.
He received his law degree from the University of Utah College of Law in 1976. Judge Braithwaite was a member of the
Utah Air Conservation Committee from 1977 to 1985. He was in private practice and served as City Attorney for Cedar City before his appointment to the bench. He is a past member of the
Utah Judicial Council and served as Chairman of its Policy and Planning Committee.
Judge Braithwaite's retirement plans include regular service as a Senior Judge, working as a
mediator, and lots of hiking. He insists that he has no plans to try his luck as a stand-up comedian.
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