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One advantage of being the Judicial Advisor to the Bar Journal's Board of Editors is that I can seize this space any time I want and write whatever's on my mind. Of course, this is mostly a theoretical advantage. For one thing, it's hard to find the time to write something that I don't really have to write. For another, extra writing for an appellate judge is something of a "busman's holiday." So why me; why now? Well, I have a confession to make. For a variety of perfectly valid reasons, I had missed a couple of meetings of the Board of Editors. Maybe three. In a row. Come the August meeting, I had PROMISED I would be there. The meeting fell in one of those occasional summer weeks that are pretty dead - entire days with no meetings, no hearings, no commitments. Just nice blank calendar pages. Perfect for catching up. On one of those days, I left my planner at home. I remembered all those blank pages. I went on with my life and it didn't hit me until just after five: "The Bar Journal meeting was at noon today, you idiot!" Because the Bar
Journal is always looking for material, and I have primary responsibility for "Views from the Bench," there was only one way to conclude my e-mailed apology: "For being such a flake, I will write something for “Views from the Bench”' by the end of the month." That left one problem. And it is the main reason I have difficulty getting judges to write these things: What to write about? Fortunately, the August issue of the Bar Journal arrived just as I was about to resort to plagiarism and gave me lots of ideas.
* * *
I sure do wish the on-line "Judges' Benchbook" Frank Carney wrote about would have been around when I first started practicing law in the late 70's. (It's hard to believe, but
back then we managed to practice law without an internet. Heck, we didn't even have fax machines or voice mail. File copies of correspondence were made using carbon paper. The wonder of
the age was the "mag card" typewriter, which miraculously saved documents on magnetized cards and avoided the need to retype the whole thing every time a change was made. The
entire firm shared one such machine and only the most important pleadings merited "the mag card." You knew you were on an important assignment when a senior partner asked you to
do something by the end of the week and concluded by saying: "Better get it on the mag card." Anyway, the Benchbook might have kept me from losing my first case.
Now it's
not unheard of for a new lawyer to lose his first case. It is rather uncommon, however, when that case is a default divorce. It is really embarrassing to lose a case when you have no
opposition. But I managed to.
At the time, Utah did not have "no-fault" divorce. Grounds for divorce were specified by statute, and the only one that worked for your
run-of-the mill failed marriage was phrased something like "cruelty, including mental or emotional cruelty." Absent an on-line Benchbook, I just asked around: "So, like,
what do I have to get my client to say to demonstrate cruelty. She says her husband isn't cruel - just stupid." The welcome consensus of the attorneys in the office who had done some
divorce work was this: "You don't have to do anything. The judge will ask her the questions, and he'll just ask her something like ÔDid he say he doesn't love you anymore?' If she
says Ôyes,' there's your cruelty." Pretty low on the cruelty hierarchy, I thought, but then the word at the time was that Utah had become something of a de facto no-fault state
anyway.
My client and I show up at the Metropolitan Hall of Justice and I am directed to Judge Croft's courtroom. Mostly male lawyers and their mostly female clients are assembled
in the courtroom. Every five minutes, a new pair is called into the judge's chambers. I am a little disappointed I can't see what's actually happening. I had wanted to see a couple of
others before my case was called. Eventually, my unsuspecting client and I are called back. There is Judge Croft, looking rather stern; a court reporter; and a court clerk, barely visible
behind a stack of files. We take the two chairs obviously intended for us and Judge Croft says "Go ahead counsel." I am dumbstruck. What must have seemed like an eternity later,
I managed: "Your honor, this is Jane Doe and she would like a divorce." As I settled back into my chair, Judge Croft said, "Then proceed with your evidence on jurisdiction
and grounds." Now everyone and everything was spinning around me. To my shock, he wasn't going to ask the questions. I apparently was expected to. I was not prepared for this, but
somehow managed to get out the right questions about when the parties were married, how long they'd lived in Salt Lake County, that the complaint had been filed more than 90 days ago. I
didn't know when to stop, and so next elicited that she was an adult, that her husband was an adult, that she had paid the filing fee in cash, that she had voted in the last general
election, that she was a natural citizen of the United States, that she had a driver's license. Sensing that I might well go on forever, the judge finally said something like "Court
is satisfied regarding jurisdiction. Proceed to grounds." I was ready for the big finish: "And has your husband told you he doesn't love you anymore?" With apparent sadness
and sincerity, my client softly said "yes." I looked triumphantly at the judge. The judge said "Denied. Next case."
I honestly don't remember what I said to my
client on the way back to the office. I remember wondering if you get part of your Bar dues back if you resign voluntarily rather than put them to the effort of disbarring you. I wondered
if graduate school would give me credit for any of my law school hours. I left my client in the waiting room and sought out my main source. I explained what had happened.
"Ooooohhhhhhhhh," he said. "You must have had Judge Croft." Sure enough, he explained, Judge Croft expects counsel to put on his own case, even in a default divorce,
and Judge Croft, alone among the Third District judges, doesn't recognize that saying "I don't love you anymore" is necessarily cruel. After all, it might have been said as a
joke. Or it might have been followed with an apology.
After a further tutorial now geared to the peculiarities of Judge Croft's approach, we went back to the scene of what I had
thought was to be my professional Waterloo. Back in chambers, I proceeded with my evidence, firing question after question at my well-coached client. "Did he tell you he didn't love
you AND did he do so knowing that would hurt and humiliate you and did it in fact hurt and humiliate you?" "Has this caused you sleepless nights and loss of appetite?"
"Has he embarrassed you in front of your friends?" "Did he belittle you in front of your family?"
Before I could get an answer to "Did there come a time
when he threw your beloved cat, Muffy, out the door and into a driving blizzard?," I heard the words by which I knew victory could be snatched from the very jaws of defeat:
"Court satisfied as to grounds. Counsel will submit findings of fact, conclusions of law, and order and decree in accordance with prayer. Call the next case."
The point,
of course, is that if there had been an internet at the time, and had the Litigation Section placed a Judge's Benchbook on its website, and had Judge Croft shared his preferences and
predilections in the Benchbook, this embarrassing blight on my record could have been avoided altogether. Keep up the good work, Litigation Section!
* * *
Annina Mitchell submitted a provocative letter to the editor. In it, she opposed the Bar's intention to come to the defense of judges subjected to public criticism. "It is not the
role of the Bar to defend individual judges," she wrote. She was especially critical of Scott Daniels siding with one judge who had been the subject of criticism. She said "[i]t
is too easy to invoke the mantra of Ôjudicial independence' to shield judges from legitimate public questioning of their perceived biases or incompetencies."
In general, I
support the Bar's effort. Canon 3B(9)of the Utah Code of Judicial Conduct greatly limits the ability of judges to comment on pending cases. Beyond that, I think it would be unseemly to
have a judge rationalize her decisions and explain her actions in the newspaper or on the radio - especially if the judge could be drawn into a protracted, on-going debate that would
distract the judge from her duties. Better to have a more disinterested group, like a Bar committee, provide a "defense" for the judge.
In saying that, I don't mean the
Bar committee should blindly side with the judge in any and every controversy. The most appropriate contribution will usually be to provide some context and balance. Thus, if a judge were
criticized publicly for imposing too light a sentence on a defendant in a sex abuse case, I wouldn't envision that the Bar would defend the judge by asserting this defendant was in fact a
good candidate for probation, with therapy, and was not likely to re-offend. Rather, I would hope that the Bar's response would emphasize the inability of the judge to respond publicly
because of ethical constraints, while pointing out that sentencing decisions are among the most difficult that trial judges are called upon to make. The response might note that sentences
are not imposed in a vacuum, but within a statutory framework and with guidance from higher courts. The response could point out that the sentencing judge had received a presentence
report containing detailed recommendations from knowledgeable experts.
The bottom line would not be that the judge was right and the critics wrong, but rather that the imposition
of sentence is a much more intricate matter than members of the public might assume. The response would be pretty much the same whether the Bar committee agreed or disagreed with the
judge; whether the judge was criticized for imposing a sentence that was too light or too tough.
* * *
As near as I could tell, it didn't really have much to do with the Judges' Benchbook, but Frank couldn't resist a little dig at The Matheson Bunker, as it is apparently known in some
circles. Frank attributed much of the perceived loss of collegiality between the bench and bar in the Third District to the "new fortress-like courthouses with the judges monkishly
cloistered away in back when not on the bench." I hear things like this quite often and have mixed feelings on the subject. To be sure, it was nice when I was first practicing to be
able to file a complaint and then take a copy of the complaint and the receipt, along with an application for a TRO and supporting affidavits, and roam the halls to see which judges were
in but not on the bench. With this reconnaissance completed, you could then go drop in on whichever judge you thought would view your ex parte application most favorably. I'm not sure
that was entirely appropriate, but before the Third District assigned cases to individual judges, this was institutionally possible and, well, it's what everybody else did.
Along
the way, I had some really nice chats with judges in this casual atmosphere. Had a nice visit with David Dee one time about a destroyer on which he had served; laughed with the late
Bryant Croft about how I had lost a default divorce case once in his courtroom - "well you weren't the first and you weren't the last," he assured me; and talked a little
baseball with the then-newly appointed Dennis Frederick. At the same time, my unscheduled visits interrupted any number of judges deep in thought, finalizing a ruling they were about to
announce. Once I intruded on a judge just as he hung up the phone, and I guessed that the tears he hurriedly wiped away resulted from sad family news he had just learned rather than from
seeing me yet again. And I noted, even in those comparatively peaceful times, how easy it would be for a deranged and disgruntled litigant to walk right in to the judge's office and shoot
or stab the judge. The lax security and open atmosphere seemed perfectly normal at the time, but that kind of easy access to judges was ethically problematic, intrusive, and downright
unsafe.
Perhaps, as happens with so many things, we have swung too far the other way. But lawyers wouldn't drop in unannounced on the their dentist, or even each other. Why should
judges not benefit from the same level of professional courtesy? A building plan that facilitates easy ex parte contacts isn't probably the best for a courthouse. The recent record speaks
for itself in terms of the need for tight security at most public buildings, and definitely at courthouses. So, with an occasional yearning for those halcyon days of yore, on balance I
support the floor plan, security, and limited access that typifies the Matheson Courthouse. It would have been out of place in the 60's and 70's, but it's about right for the 00's. (Is
that what we call this decade? Not very catchy, is it?)
That having been said, loss of collegiality should not be a byproduct of a safe and efficient courthouse. Lawyers who cannot
drop in on judges need to be able to schedule appointments by telephone. If they end up leaving a voicemail message rather than talking to a human, they are entitled to a reply later that
same day - and the sooner the better. Judges should occasionally leave their chambers and stroll the halls, just so they can say hello to friends and acquaintances in the Bar. Getting
judges to serve on Bar committees and CLE programs has always been a good way to promote collegiality. Those receptions at the Alta Club for new judges or Bar admittees have been nice
affairs, and law school programs and the activities of local Bar associations often bring judges and lawyers together as well. I think more of this kind of interaction could fill the void
in collegiality many feel, whether or not it is attributable to limited courthouse accessability of judges.
* * *
I recently came across this pearl of wisdom. I wish I could say these words were spoken by Gandhi or Shakespeare or Lou Gehrig, but it was actually Art Linkletter (or, I should say, it was
attributed to him by whoever sent me the email a while back that included a number of such gems). Still, it's a good one and, for no particular reason, I'll close this essay with it:
"Things turn out best for the people who make the best out of the way things turn out." Or as Sheryl Crowe sings, "It's not having what you want; it's wanting what you've
got."
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