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i think that uh...
uh... what my observation uh...
larry about the question you asked about the judges deciding what the facts are or
deciding what they aren't
uh... is more of a problem at the appellate level than at the trial level
generally speaking my experiences of trial
judges uh... by and large have been better have been closer to the situation
been more open to be
persuaded to what the facts are should be certainly we do have some judges saying
well I'm just not going to hear that effort
uh... i think by the way we've moved in the wrong direction on experts I'm a believer
in the adversary process if your expert is
touting junk science and then it's your opponents job to bring that out
uh... but at the appellate level and we certainly have this in the seventh
circuit
you have judges uh sydelle mentioned who
and i think you stated it exactly right they
their whole training has been to have an ideological or theoretical
point of view sometimes it's not a right or a left
ideology it's just a theory just their own theory
and a case gets tried a record is made there's testimony there
uh... the jury says i believe x and i don't believe y
that's golden in our system those are the facts and the appellate judge
writes an opinion
and of course unfortunately
you don't know how bad it is unless you were the trial lawyer and you read the opinion and say
that wasn't the case i tried
uh... the person just said i'm going to reach this outcome to foment this
theory and in chicago of course it's the economics and law theory which has some good points
but uh... and then they said these are the facts or these are what
I read an opinion by judge posner recently
in a securities fraud case
and he actually said in his opinion
that he upheld he was upholding a summary judgment he said
I'm going to uphold this because the facts
may be
such-and-such
and therefore i'm not going to let this case go to trial 'cause i believe it may
may be this
let me ask this i wanted I wanted to get back to that because that's a very
that whole legal technique of saying what the facts may be
is is
well i think we should just get rid of it it's of course silly but uh we already got rid of it in theory
that violates all the rules of judging
and lawyering that we know about
but when the judge has the final say that's let me say for the benefit of the
audience marty that when you said
he upheld a summary judgment what that in effect means for the audience is
that he upheld a lower court ruling saying i won't even let this go to the jury because I'm
gonna say what the facts are or not
jan marty made a comment
which i'm not that experienced at the trial level
in my limited experience i have run across a situation where the trial judge
contrary to what may normally be the case as marty said
just didn't care what the facts were
have you had such an experience
why I think i definitely have had such an experience i thought you might say so
definitely written about in jonathan hare's book you know a civil action which
you know i'm proud to say pleased to say is in many law schools in the country
as a point of discussion it goes back to my point about how we need this can i tell you
something about that yes if i could only read it twenty pages at a time it is so
painful
that i couldn't read more than twenty pages at a time but go ahead no i think that he really
got into the belly of the beast he really talked about what it means to be to do lawyering
in our system all of it you know the good the bad and the ugly
and uh... and
so i think that the
it is this um you know need for this open and honest discussion because yes there there is this
arrogance of power
and um...
and it's a terrible feeling to be a lawyer to go into court and to have done your
job
you know to marshall together the facts
uh... to uh... to have the research and to say look here's how the facts fit with the legal
theory
um... and uh... you know we don't all have to have pride of ownership we we
can be wrong but the point is to have done your job
and then have to have the judge come and say well it's not important in otherwords it doesn't
really make any difference that you did your job and so therefore you say to yourself
well who am I if i'm not a lawyer am I an influence peddler i mean what is
left to me what is my function here for my client
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