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welcome to the massachusetts school of law
educational forum
our topic today is one of special importance to the ordinary citizens of
the united states
it is misconduct by federal and state judges who sit in judgment over us
for scores of years we as citizens have been taught the civics lesson that judges
are accomplished and distinguished individuals
are fair minded and objective persons who make their decisions on the basis of
facts rather than prejudice
and in general are persons who are worthy of their place atop the ladder of
prestige in this country
those of us who are lawyers were taught the same thing in the law schools and
the lawyers who began to think differently after being in practice
rarely said anything
publicly about their views
because doing so would beach would breach the profession's etiquette
and be disastrous to their careers
there are many judges will live up to the civics model of what a judge should
be
on occasion i have been lucky enough to know some of them personally
such as the marvelous gentleman who teach at our law school
but in recent decades there has been more and more information coming out
which shows that
far too often far too many judges
fail grossly to live up to what we expect of judges
as detailed in a recent issue of an msl intellectual magazine called the long
term view
there are now extensive complaints about the following types of conduct among
others and about the failure to cure the problem
there have been some judges who were plain dishonest
they were on the take
too many judges are arrogant they treat people in the courtroom like dirt
there has been gross bias against women and mistreatment of them
there are judges who make decisions on the basis of their prejudices
they ignore the facts and when necessary to reach a decision they desire
they make up the facts
there are judges whose views are one-sidedly pro establishment
there are judges who let representatives of the powerful break
procedural rules at will
while not allowing the poor or the non influential to obtain the benefits even
of procedural rules they have a right to use
judicial councils and commissions set up to investigate complaints about judges
protect them instead
because the commissions are overwhelmingly comprised of judges and
lawyers
the media generally is uninterested in and fails to cover the problem
and there are very few court watching bodies comprised of citizens who
regularly sit in courtrooms to observe and report on what is going on
these and associated problems are so important and so disturbing
that as i said msl recently devoted an entire issue of a magazine to them
and today we have assembled a group of extremely knowledgeable people to
discuss the problems on this program
with me today are
on my right
jan schlichtmann
jan is the lawyer who brought and in the face of judicial antagonism for many
years pursued
the now famous woburn massachusetts case involving the chemical poisoning of ground
waters
the case of the subject of the recent of the recent best-selling book called
a civil action which is being made into a movie
on my immediate right sydelle pittas
sydelle is a highly experienced litigator in the boston area and from her office
in winchester currently specializes in intellectual property issues and
business disputes
she is a member of the board of directors of the women's bar association
and formerly was on the board of trustees of the women's bar foundation
and on my immediate left david grayer
david is a highly experienced practitioner in boston is a marvelous
teacher at msl as well as at undergraduate schools and is a member of
a committee which passes on applicants for state judgeships in massachusetts
called the judicial nominating committee
and on my far left martin oberman
marty a practicing lawyer in chicago is head of the chicago council of lawyers
a prominent legal group in that city
the chicago council unlike any other bar group i know of
has published extensive reports on the professional characteristics and
qualities of federal judges in its area
and i am lawrence r. velvel the dean of the massachusetts school of law
in the interest of disclosure let me say that
although i am the moderator here
i have deeply felt views on the subjects on the
subjects of today's discussion because as a practicing lawyer
i have been involved in cases where the problems existed to a
fare-thee-well
lady and gentleman
uh... let me open
i hope it's proper to say lady and gentlemen
let me open by asking uh...
perhaps marty can handle this
to outline for the audience what should be obvious certainly obvious to us as
lawyers and should be obvious to
uh... the citizens of this country
why do we have a right to expect
the highest standards of conduct
from federal and state judges what is your opinion on that
I think we start by examining why we have a
court system in the first place
and it really is a simple I think and basic
in my view
uh... you know since uh... people
first came out of cave and decided to come together in communities we needed
a mechanism
uh... to resolve
disputes and in
the united states
the court system I think serves two functions one it is a place to go and
have disputes resolved
uh... two and equally important
perhaps more important to our democracy the court system has been a place
that is a constraint on the other branches of government
uh... and uh...
and those
both of those points are fundamental
to the operation of a democracy of if people
uh... do not have
confidence
in having their disputes resolved in a court system
what's the alternative they're gonna take a gun and walk out into the street and solve
the problems themselves which unfortunately of course still happens
so it's absolutely essential
uh... for the functioning of a free society
that people
when they have a dispute can take it to court
and have the belief
that they will get a fair and impartial hearing
and and so the uh...
all of the problems that you outlined and many I assume we're gonna talk about undermine
uh... the public's confidence and willingness to trust in the court system
david as a practicing lawyer
the people you have represented so often have have had involved have they not the most
critical
questions concerning their lives and
property when they'd go to courts to have
either forcibly or voluntarily to have disputes resolved
I find that
uh... once
we're in court
uh... and there is a disposition by the court uh...
the client would normally turn to me and they would say that um...
uh...
why is it that my property is being taken away from me
uh... why is t that my child uh I can't see my child
uh... why is it that uh... under the circumstances that uh...
uh...
i have no visitation rights
uh...
the
in the probate setting
you find that judges are given so much leeway
and that they make decisions every day what is in the best interest of children
what is uh... of course in the best interest of families and we just uh...
finished talking about the fact that the supreme court
uh... as of yesterday for the commonwealth of massachusetts
stated that now judges will now be able to make decisions
in regards to which church
a child should go to david let me say that everybody in the body politic seems familiar what the tremendous impact that the other two branches can have on people 0:07:39.089,0:07:41.089 the executive and the legislature
and strangely to me I am constantly reading
uh... that people don't really have a sense of how crucial
the court's can be in their lives what tremendous impact the courts can have
over them and that's really what you are describing here right that's correct
and larry let me just say that uh...
we find that statistically
you find more pro se litigants
than ever before in our system i know that in probate
which means for the audience no lawyer somebody representing
himself or herself
and especially the uh... the indigent where they can not afford a lawyer
lawyers are expensive as I'm pretty sure the gentlemen
around here can well attest to
and the fact is that they are now going in the court
and they're representing self
and in representing yourself you well know that basically the emotionalism
the emotional aspect in this case
is very very very uh...
of course it could be damaging to the person
who's before the bench
jan
when you have been in court
you have expected and not always found i understand
as all lawyers
expect and often don't find
that a case will be decided on the facts really on facts that a
somebody is permitted to bring out
and that the court will take account of it
am i correct you have found that's not always been the case even though one expects it in
the civics book model well i mean i think that uh...
a lawyer or at least i as a lawyer certainly expect and I know my client's
expect
that the case will be decided on the law and the facts together
and uh... that you know it will be an impartial decision
and what you find as a practicing lawyer i mean the experience uh... i've had and i
know it's similar to every other lawyer that i know
is that the more and more experience that you have with the court system
uh... is this uh…it becomes a mystery to you as to how a case is decided you begin to
feel well if it's not the law if it's not the facts
you know what else is going on here i mean often times I have the
experience
too many times
of being in court something happens i said well
it sounded like that was decide before i got here in other words there was another
hearing before i got here that i wasn't privy to and that is bothersome i
think to all lawyers you know young and then becoming uh... uh...
accomplished in the profession and a cynicism builds up
i think the older you get as a lawyer that you must fight uh... that you have to fight
everyday and i know it attacks at the soul of every lawyer as he goes through the
practice
uh... and uh... does anybody want to comment on the uh... the fact
that we grant judges in most states
and in the federal system
uh... life tenure
so that these expectations
uh... will be met because they will be independent
uh... and so that they will resolve disputes fairly and on the facts and uh
so anybody wanna make any comment or is it just so self-evident uh...
I originally
began my practice for one whole year in new york where judges are elected
so i want to say flat out
the appointment process is better than the election process any day of the year
and i think that lifetime tenure or at least now it's until a certain age
isn't it
uh... is also important because judges do have to i think have the security
that their job isn't going to be dependent on
you know one um unpopular decision or or one mistake
but
all that having been said why don't we have some kind of scrutiny
periodically because um... people
as they stay on the bench as they get more and more isolated in their lives
because they're not permitted to have
the normal kinds of contacts that we do
they just may forget that there's a real world out there and that their decisions
impact that real world and they should be subject to periodic review peer
review
public reviews something
that looks at their record and and comments on it we'll get into every
single one of these topics now
uh... and let me say sydelle that what you're suggesting is very similar to
what is
becoming beginning to have a role in the academic world which is post
tenure review
what you're suggesting and what somebody wrote about in the magazine uh...
was uh... form of post tenure review
now let's see if we can establish some common ground in the interest of
the fact that
we are all lawyers not none of us want uh... our license to practice law to
be taken away
uh... i take it that everybody
I'm a dean I don't care if they take away my license
sometime you hope that that might happen
to protect us from ourselves
or to force us into other careers right right
nobody here is saying if i
understand correctly some of the informal conversations i've had with you uh...
prior to this
nobody here is saying or should be taken to be saying
that what we are going to talk about is true of all judges
is true of any judges
all the time
well that's a little
chancier
uh... and nobody is saying that that we should get rid of the judicial system as
we know it
and nobody nobody is saying that the judicial system for two hundred years in
american life has at every point failed to do good
for the american politic
nobody is saying any of that
but what we are saying
if i understand correctly
uh... is that there are problems which we will address here and just before we
came on jan you were talking about the fact
and i think perhaps we ought to discuss this briefly before we get into
the substantive problems
because the ABA the american bar association is now de facto as i
understand it attempting
uh... to put uh... put the quietus on on criticism
of the courts
by creating new rules under which bar associations would be permitted
almost
might even have an obligation
to rush to the defense of criticized judges
you were pointing out that
like the executive branch and like the uh... administrative branch to and like
the congressional branch
state legislative branch
the courts to should be subject
to intelligent criticism and comment about what they're doing would you like to
elaborate on that a little bit
well maybe I could say it this way i think that
my life's experience to this point i think and being a practicing lawyer i
think has led me
to have a greater respect and appreciation for open and honest
discussion
and i find that
um... when there isn't an open and honest discussion
when there's secrecy when there's darkness that's when you start to have
problems it's always in the darkness and in the secret places that the rot sets in and
it's it's true of judges and and and and being secluded and restricted
because there are there is access to them when they're in when they're
so called being restricted in limited access it just there are limited
p people who are having access and that's not healthy
uh... and i just think we always as human animals
uh... we we we are better for interaction with each other to you know
uh... smooth out the rough spots and judges
who have this incredible power over us need it probably more than anybody else
you want to add something sydelle yes i wanted to make
uh... two points from discussions I've had the a good fortune of having recently
with federal judges that i've interviewed for another television
program
and uh... judge nancy gertner
uh... was uh is sitting on a case that will have uh... importance in um...
in the
field of
uh... arbitration
and the securities industry
and she did what i think is unusual for a district judge to do we see it much more
at appellate level
uh... she had a knotty issue and she asked for a briefing by amicus
so that is friends of the court which are people who are not parties
to the dispute but feel they have something to say about the issue
and in doing that she thereby is asking for public input if you will from
different organizations who want to say something to her about the case and i
think that's a thing to be encouraged am i correct in thinking that
nancy gertner who is an extremely courageous women woman not to say
brilliant
is in doing this trying to find out whether the
fundamental factual bases which underlie a supreme court decision are in fact
not true at all
well I I don't know
what her reason for doing it is except that she did want more facts that's
certainly one of the issues that she wanted I'm simply commenting on the
the fact that it's a good idea to bring that kind of public reaction in
and then the second point is that judge sandra lynch who is on the first
circuit court of appeals and is the first woman to serve in that
capacity in the history of our
uh... of this jurisdiction
uh judge lynch said you know we we are isolated up here she
all the judge's uh... who were fairly new
uh... were surprised how isolated they felt their friends didn't want to talk to them anymore
they were afraid of improper contact
she said if i right a decision
that you disagree with
let me know
write me your reasons don't keep me in the dark
maybe there isn't anything i can do or would do about that decision but i
want to know
how you all are affected by the decisions I write I found that uh...
a revolutionary statement let me turn if i may I want to get back
to all these points
they were sort of like table setting as it were i want to get get get to the
to the uh... main course now
and then the dessert will be what do we do about these things which you folks have all
been talking about
to what extent marty i i know that that you've experienced this in the uh...
illinois area unfortunately and it's also been experienced in philadelphia recently
to what extent do you think that uh... courts
are sometimes the perpetrators of plain dishonesty bribery
on the take
well if you want to start with just a level of bribery of course chicago
has a great deal of expertise in that uh in that field
the world's champeen pardon the world's champeen well
uh... nobody seems to be trying to compete with us at the moment
uh...
the uh... it has been a serious problem in the court system in illinois
particularly in cook county
uh... i think uh... problem really stems primarily from the fact that we have an
elected judiciary judiciary in illinois
uh... and
and illinois of course is a everything is
very highly politicized
including the judiciary
and so the types of people who tend to ascend to the bench who have in the past
uh...
have produced not all of course 'cause like in any
area most of our judges are fine
but compared to other areas a high percentage of people
who've been uh...
easily tempted and have been taking bribes we had eighteen uh...
judges I think convicted in the last
scandal of the federal uh...
uh... that the u_s_ attorney prosecuted then we had people thought
that was gonna
put an end to this and then
a few years later we had a follow-up scandal and other
a number of judges were indicted and some resigned from the bench you know marty in
nineteen eighty one I was involved in a case in a federal court
and the client we were losing some early motions the case ultimately involved
lots and lots of plaintiffs and a seven hundred fifty million dollar
judgment for steel companies and so on
but uh... we were losing some early motions for a small client and he asked me
he said do you think this judge is on the take
federal judge and I said to him
there is no way this does not happen in the federal courts this is heresy
don't darken my door with such a suggestion again in the next ten years
three judges were convicted or indicted for taking bribes three federal judges
convicted or indicted for taking bribes
well it is unusual in terms of the number of judges i think that very a
very small percentage are on the take but look one of
the things we have to remember
is that uh... that uh... a judiciary is made up of human beings so to some degree
people who get to the bench are going to reflect the population as a whole
and as much as we would like
uh... the process of judging to be uh... based on the civics lessons we learned
in school that everything is honest and based on the facts and the law
a certain amount of human frailty is gonna be there
particularly with the judiciary for the reasons that I think we've talked about here
how important those are
we uh... we ought to be working hard to minimize that even compared to other
the other branches of government for two reasons one judge's serve either for life or
for for a long time
it's much easier to get rid of a crooked legislator through an election
then it is uh... a crooked judge
and uh... two because they have this so much power over our lives so what we
ought
to do
and I guess we're getting ahead to the desert a little bit is work on a system
that out of the whole population of human
beings who have these frailties
uh... we tend to select people who are less likely to have them
in an elected system like in illinois
where
you know uh... judges come up uh... through through the big uh... precinct
captains really it used to be it's it's better now one of the famous
statements uh... and this uh
should clarify for everybody uh... that came out uh...
during one of the judicial slate makings in cook county where the
democratic machine really controls the bench
a few years ago
uh... the party had decided to allow these slate making sessions to be open so we could hear what was
going on
and one uh... alderman who is also a very powerful
politician got up and said
i am for so-and-so to be slated as part of our slate this person will be
terrific he will be an alderman's judge and he got slated and was elected
and that was the most important thing that could be said about him yeah so
uh
uh... you know that when that's the selection process you're going to have a
higher percentage than other places of people
that are going to be found found being corrupt so would we basically agree that
it's not a widespread problem
it happens and when it happens
it cast terrible terrible dubiousness in people's minds on the judiciary you know
we ought to add uh... if i could just I hate to dominate but there's a story that just
happened in chicago that i think is so unique it should be fascinating to all of us
who practice law
there was a uh... mob hit man
uh... who hit
somebody killed him with a shotgun oh back about twenty years now
and went to trial chose a bench trial which he had the option to do
and uh... the judge was paid off I think the bribe was ten thousand dollars and in the
face of an eyewitness who got on the stand and said that that's the guy the judge said
acquitted
so the the hit man was was freed
the judge was subsequently investigated
by the u_s_ attorney and before he could be indicted committed suicide
years later we had a new
a local prosecutor elected
who decided to re indict hit man
and uh... the hit man defended it
went all the way to the u_s_ supreme court
arguing this is double jeopardy i was already acquitted and the supreme court
said
this is so fundamental to our system
there could not be double jeopardy 'cause you were never in jeopardy the first-time
'cause your judge
was bought
and they allowed it to go back and the case was just retried a few months ago and of
course
now the same eyewitness fortunately he was alive and he was convicted
uh... so but that's unusual usually when you're the victim of a
bribed judge you're stuck
your case is over
but I think it would be what is
what we don't want to do is if you focus on
you know those that are clear the clear cases of you know judges who really they're
criminals and they're criminals like any other kind of criminal they don't belong on the bench
i think we uh...
it's too easy it's an excuse for not really dealing with uh... i think a
more fundamental problem of really people who are not criminals who are good people
uh... but end up being bad judges you know and that is that to me is the
serious problem for the profession 'cause i think if we only had to deal with those
who took bribes i don't think there's a lawyer who would have a problem with that because again
the incidence is so small
um... that that really does not interfere i think with the basic practice of law let me
bring it
we're very fortunate in
massachusetts
uh because of the fact that uh... one of the things about the judiciary is that
you take a look at the history
is that
there there is honesty attached to it
and uh... we don't
uh you know we're not
like chicago
in the sense at least we haven't seen
any cases like a coming out of
chicago you did have a mayor who was elected from jail though
that's true but he wasn't a judge he wasn't on the judiciary
he wasn't a judge's mayor he wasn't a judge's mayor
but uh... i i think that if we take a look at
the and i i agree with you as far as a percentage
the percentage is so small
so isolated
and clearly uh... i mean that we have judges
bad judges
we have judges that are good judges
we have lawyers that are bad lawyers
we have lawyers that are good lawyers okay i mean we have the bad and the good no
matter where we are
and that's why we have uh... very stringent procedures
to deal with individuals who must of course
have total honesty
uh... in in what
they do
and what they dispense
jan let me uh uh
bring in something here ask
you a question about something
you know in saying that
one is really focusing on uh...
a very small part of the problem
when one focuses on people who are literally criminally on the take
what do you think about
the fact that
as is true in congress
as was previously true in the executive
as is true in a lot of life
it's not always the money not always a question of being literally on
the take in a given case
it is it can
be a question uh...
uh... of free trips to make addresses to uh... groups
being placed on committees
that are prestigious the uh... the a_b_a_ has federal judge after
federal judge on its various committees
these kinds of things where people
benefit
they can be fine people some are wonderful people but what do you think
i mean i think that this is the
this is the kind of sociological aspects of judging which is that
one has to understand what is the culture in which they're living and you know their
clerks who who they befriend and uh... who are important you know they are important
mentors to let me explain to the audience if I may
a judicial clerk
is a young man or young woman just out of law school either immediately out or
out only a year or two
who spends a year doing research for and helping the judge write opinions and
with whom the judge
discusses all manner of legal problems so this is not somebody who is just filling in
numbers this is an important no a very close relationship and a very important relationship for
the development of certainly of the clerks uh...
development as well
but then that clerk then goes someplace and usually where they go is to
to powerful connected law firms and so it's a very you know closed uh...
arena i think which has uh... sociologic complications i think or
consequences that we have to recognize that the judges are also as these people
grow and develop again there's the committees and uh... and the conferences
that they all go to it's the world that they all inhabit they they develop
relationships so you don't have to
you know you don't have to have a corruption
of the judicial mind because
somebody owns you by money but there are relationships that form that unless we
are very open about it and and very conscious of it
uh... in very subtle and not so subtle ways control how you look at cases and
how you dispense justice which i think you know and again i used the word
corruption because i want to connote that it does dispoil the this dispensing of
the justice the justice is is uh... not well formed and not well-funded but it's
something else which is very idiosyncratic in fact is quite capricious
which i think is the thing that drives every practicing lawyer
crazy is the capriciousness with which
too often and it's more the the rule than the exception
you feel that the that the that the judge man woman
uh... is looking upon the case and deciding issues can I ask
this jan could we could we sum up much of what you said not all
but much of what you said by saying that judges either come from or join
a particular socioeconomic class with particular socioeconomic views
and don't get a lot of exposure
to other people who have different views and so would you agree with that david
not quite okay what do you think
because i think that you have certain judges
uh... who are community judges they're out there in the community they're doing things in the community they're getting a
feel
uh... take juvenile judges for instance
we have a very uh...
well uh... able juvenile judge in uh... in boston and he is a community
person
he grew up in a
in the community his background
uh... he had a real feel
uh... for these young kids that come in before him
so i mean i think that uh... he's a hands on judge
and and and there's
nothing wrong in being a hands on judge there's nothing wrong to going out and trying to see
exactly what the field is out there because you're going to make these decisions
and these decisions are going to have a tremendous impact
on lives before you
so you should be that hands on person well I would look at that as a very healthy thing
but i would suggest that ah... knowing
from my experience that would sound like an exception rather than the rule that sounds to me
like
someone who's bringing life experience and staying connected to the world which
is which which is approving the level of justice well there's a balance isn't there
that judges have to
have to walk
uh... and we in selecting judges have to look at
we want diversity on the bench so that we have people from different
backgrounds so that we don't have as much of this club atmosphere as i think
we all agree we used to
a couple a decade
ago
uh... and we're breaking through that now a little bit not as much as we should but
a little bit
at the same time
one of the hardest things i think a judge has to do is to look at
each case
just on its facts and on its law because after all who's presenting that mostly
before trial
it's the lawyers it's the motion hearing the lawyers speak to the judge and their
credibility is at issue
and so the judge who feels like they no this particular lawyer you
know because they've been together on this ABA committee or whatever
probably can't help that human
uh... nature that you talk about can't help but credit this person
where as this outsider this brash young man you know representing this this group on a
new or novel uh... issue doesn't bring that kind of credibility or
or brash young woman
or brash young woman I was thinking of jan not myself
what we're talking about is not unique to the judiciary
let's face it uh... up until uh...
recently within the last ten years
particularly if we take a look at the federal
judiciary
uh... like uh...
the other branches of government like the corporate world
this was a society dominated by white males from wealth
and that's who most judges were
and to a large degree still are now
we're finally
making some progress more women are getting on the bench more minorities are
getting on the bench
uh... so these uh... white males
are going to come to the bench with their own world view you can't
separate that from
from being a
human being
that the uh...
better ones i think
are the ones who learn to exercise self-restraint and to try to work and
it's difficult i think
all of us have been in positions where we've had
to step outside our own roles and try to
to put aside our own prejudices
the ones who fail are the ones who don't seem to care
and say I'm just gonna let my prejudices
uh... dominate the day
uh... the better ones are the ones
who put them aside and not i don't think anyone can do it
perfectly
but i do think that um...
or make an attempt or make an attempt
and i think
what still happens is that although we're getting more diversity in terms of
race and sex i don't think we're getting more
diversity in terms of class
i think the people who tend to get on the bench
are still from the wealthy
from the power
centers the powerless
by definition tend not to get on the bench
and that is a big problem within our system I think
let me let me ask a question
and then I'm going to come back to a whole litany of things that relate
directly to what you just said marty
uh... i hear a lot and
if this weren't uh... a society which it is now being said
a bad thing to have a victim's mentality i would say I have been
victimized a lot
uh... but certainly i've been on the receiving end i guess that's fair to say
uh... as have everybody you mean you've lost some cases
we've all done that I've lost cases and not minded and I've lost cases and
minded and i think that's where
there everybody fits in here
everybody fits in here
uh... i hear a lot from practicing lawyers about two things
arrogance
and treating people terribly I even hear that from corporate lawyers
and major law firms
would you like to comment I take it these are sort of two sides of the same coin
why don't you start off by commenting on that
I get very passionate about this issue because i think to me
you know to me this is the overriding
symbol i think of what we're talking about is that when you go into the
courtroom
and again more the rule than the exception at least from my experience and granted
I don't get in
front of lots of judges I try and stay away from a lot of judges because of it
is you feel a lack of respect
for not just your case but for you as an individual that they do not and
therefore everyone your clients your witnesses just this this
lack of respect
and you don't know where it comes from I mean
do they know me or did they know you know where did something happen
before you showed up that gives them this slant on the world that that makes
you feel not respected and i think that's the worst
part of lawyering when you go before a judge that this feeling of not being
respected because it means so much
of how you
are treated in the courtroom and then how you respond to the treatment and try to
understand what is happening
you know in this case and i think for lots of lawyers
the courtroom becomes a very dark and dangerous place
uh... because of this feeling of not of of lack of respect and whenever we see
judges mistreating
uh... witnesses or or other people this kind of arrogance and this
uh... you know they're in charge
a very corrupting thing you know this power and then
is it is very demeaning and i think uh...
and engenders a real cynicism on the lawyer about what is going on in the court room
go-ahead go ahead you mentioned way back at the
beginning that i think each and every one of us has experienced
haven't we all had to reassure clients
who really could see who could see themselves or us
being mistreated in court and we had to take them back and say no the judge is
a fair person and just happens to be you know overworked at this particular
moment or something and you find yourself apologizing we become the apologists right you know
trying to uphold the legal system so that your client won't become you know won't lose faith
the judges to me to you
the attorney
the advocate
imagine how demeaning that judge is going to be to the client or to the
person who is a uh...
who is pro se
you know one of the thing we all see that we see pro se clients it's uh...
it's extremely upsetting to sit as a lawyer and watch a judge cheat a
pro se client you know I was going to say who say that one of the things that i do is that
when I'm in court and I'm representing my client my client is sitting there
and is the person is pro se
i am so in tune to what's going on I want to see exactly
how that judge is going to
uh... respond to that pro se litigant
that person is there in that court
no attorney
but i tend to find that especially in probate
that judges
they tend to be very sensitive they're very
uh... compassionate they're very understanding
and and i don't know it's because of the fact that it's all open and everyone's
listening it's recorded
i think that basically is that we have a new breed starting to come
to the uh... judiciary now
and and and the selection
of these individuals are that do you have what is called judicial
temperament
we talk about it now we talk about it judicial temperament as a qualification
for the job precisely and that's a big qualification
it's not the intellect you know lawyers hate working in cases
where there's a pro se on the other side it's difficult because they don't
know the procedures you you can feel like you're taking advantage of them
and yet you have to represent your own client zealously
pro se is difficult that comes from the expense of lawyers and that's a whole
other show well I will tell you this
the chicago council of lawyers came into existence
twenty eight years ago for the purpose of trying to upgrade the
quality of the judiciary in cook county
and uh... we do a lot of things now but one of the things we focus on is
evaluating judicial candidates we also evaluate sitting judges
and uh... the most difficult a task we a
try to do a good job is to evaluate a person
for temperament when they haven't been on the bench right
now that is just a very difficult human trait to predict and i don't think
that rich white uh... men from powerful law firms have a monopoly on
arrogance and discourtesy
uh... we see it uh... from all kinds of people who get on
get on the bench some people have never been in positions of authority
before and they don't quite know how to
respond when they put
the robe on all of a sudden they get very impressed with themselves
uh... it is a uh... I call that robe power by the way
well it uh we call it some other things too when we're not on the record
but uh... but it's uh...
it's a very
uh... difficult task but at least if an effort is made to sort out people
and to talk to for example when we evaluate judges uh... judicial
candidates we will generally uh... try to interview twenty people
who have known this person been on the opposite side it's a very time-consuming task
and to try to sift and winnow and get a sense and our job we don't do it
perfectly either
uh... but to try to
ferret out people who have not shown
an ability to be balanced to be restrained
uh... because i i think and
jan alluded to it
i think if there were
if you had to single out the biggest problem
facing the judiciary today in a way I don't think it's bribery I think
that's a very tiny percentage
i don't even think it's ideology although certainly the judiciary's
far too conservative for my taste
but i think it's an arrogance combined with an ideology
uh... and so that uh...
uh... people get appointed who just think they can run roughshod over
the facts the law the people before them
because they want to do it the way they want to do it that's
why do people like these marty and i know the chicago council's had some
very explicitly things to say about people who are
very brilliant
chicago council says they are very brilliant and
no one none of us would disagree
why do people like this or how does it come about that people with this kind of
arrogance
get on the federal or state bench
well I ... in the case of the
judges on the seventh circuit court of appeals which is our federal
appellate court in the midwest
i can speak a little more knowledgeably although i think it's
true of of others around the country
uh... we have two judges who are
uh... were professors at the university of chicago actually still teach there uh…judge
richard posner
and judge frank easterbrook who are brilliant men
there's no question they're brilliant they're regarded as two of the best
federal judges
uh... but they both
uh... have suffered from this problem of arrogance
uh the problem of mistreating these are appellate judges so the clients
are not in front of them but the lawyers are I've been there
uh... and uh... they
particularly judge easterbrook has a reputation of being very demeaning
towards uh...
uh... the lawyers who are practicing uh... in that court
i think one of the main reasons is and it's something that i look at when i'm
considering who I want to support on the bench is that these are people who've never really
practiced law they've spent their entire lives in academia or maybe in the solicitor
general's office in washington
and I know everybody here
has practiced law and represented clients and until you have had
the real life experience of a human being walking into your office with a
problem
with not very much money to solve the problem
and you try to say what can the legal system do for you that you can afford
to get from here to there
to either be compensated for an injury
or to deal with a custody battle or to sue the guy who left a hole in your roof or
whatever
until you've been through that
uh... many times for many years i don't think you have a good sense of
perspective on what the judicial system's supposed to be about
and so what i find with the academics not all of course there've
been some brilliant academics
that went on the bench justice frankfurter
I suppose we would all think and so forth but
uh... many of them
you know it reminds me of one of my favorite
lines about a comment on the political system that i remember reading in david
halberstam's book the best and the brightest
uh... and he
retells a story allegedly that when the kennedy administration
was first sworn in
to office lyndon johnson the new vice president was down meeting with his old
mentor sam rayburn and he was telling him brilliant people that kennedy was putting in the
cabinet mcnamara
and people of this nature and rayburn reportedly turned around and said well i would be more impressed
if one of them had once run for sheriff
and that is
yeah you know you need some real world growing up i think to to have
some uh...
something else about
the former professors on the bench and we have a couple of those in massachusetts
both on the district court and
and and in appellate capacities
is I think they have spent
uh... number of years
teaching and being encouraged to to develop a scholarly point of view
a point of view that purposely is not
bogged down by such things as real facts and so they think theoretically they
teach theoretically they write theoretically and they've been promoted
academically for doing that
now being appointed to the bench
here's the chance to impose upon the great unwashed these lofty
uh... principles that you know they've been teaching at at at harvard for all
these years and sometimes we can suffer from uh...
you know i i've had the experience of reading decisions of a judge
uh... going off on principles that were never advanced
and theories that were never advanced by any party
to the case because
he thought
you know those should apply I want to introduce one other element
uh…to this i think we all should also recognize as lawyers
that there is also a corruption of the system itself which has an impact on judging
I'll explain it with this example i have found that judges who
had a very difficult reputation as judges on the bench
who have retired and then gone into mediation
have and i have this personal experience I know many others have they have become they
have actually flowered in the process as mediators and problem solvers that you
never saw
uh... them uh... exhibit while they were on the bench and so one it begins to
make one think that perhaps there is also a uh... a systemic problem at play
here
that the adversarial system the way we have constructed it and the way we practice it
also has an impact on
human beings like judges who have to sit in judgment and are forced to make these
either or decisions
as opposed to and there's a big i think the practice is being revolutionized
because of all the things we're talking about
lawyers now are
are understanding the uh... trying to get uh... their clients to resolve disputes
outside the courtroom
because of the mystery involved there
to get the to allow the clients to have more control over the problem solving
process
uh... and it's revolutionizing truly revolutionizing the uh... practice it is
now becoming a place for retired judges to go to like I say to flower now as
problem solvers i think we have to think in terms of
the systemic issues that
that caused that uh...
that distinction
you know if I may go right ahead david
I believe marty one of the things is that basically is that we have to really have due diligence
and due diligence before the elevation process is going to take place
uh... do a very thorough search into the background of the individuals who will be
of course uh...
who would don that robe and who would make decisions and have an impact on people's
lives
uh... and that's up to the different commissioners and different bodies to do
and i'm talking about due diligence is that not just to go to
uh... individuals that uh... uh...
an applicant would put down who would of course
uh... embrace that person
but to go to uh... to someone who is on the other side
who tend to really know that person who's been very
active with that person
and know exactly what that judicial temperament you know judicial temperament is
something that you could shield
you can hide
but once you put that robe on you undergo this
metomorphosis
it's out there
and there's nothing that you can do
and that is what
each of us as lawyers have been faced with is that we have had judges
who would screen and who would yell from the bench and you know if they're going to treat
us that way as far as lawyers
then under the circumstances they would treat uh... they would treat anyone that way let me
say this david
and those are not necessarily
and in most cases are indeed not numerically
ex professors that's right
is there something systemic that's going on here
that seems to affect many people
who take the bench and i agree with you we're trying to change around what we
do in our law school to be doing things that no other law school's doing precisely because we
think there that systemic problem exists
right i think it's again
i believe that there is this
we have with this the court system as we presently practice in
is a very nineteenth-century model
and i think we're beginning to recognize that because of all the problems that we're
talking about that affect you know judging
which is obviously at the power center of the system
we want to kind of exert
more communal control
over the decision making process it is this
uh... giving to judicial discretion
which i think practicing lawyers find is a very corrupting thing
you know that we are empowering
human beings as wonderful as and and as good as they may be I believe
it is fundamentally perhaps a corrupting process to put so much on an
individual to make these decisions and to expect them to always be wise and
fair minded and to know what's going on even when they want to be
and of course the real problem also is that many of them don't even want to be but you know and you try
to sift those out
and i think that there is just more of a need to this kind of open honest
discussion
and to get outside the courtroom in order to have that open and honest discussion
and like i say when they come down off the bench and you put them in a room and
they're the mediator
they speak with wisdom and they speak from a life experience i think and
they and they become very adept at problem solving again you don't see
expressed in the courtroom and that's gotta be systemic
not not human
but we
have a
jury system of trials
supposedly our legal system isn't dependent uh... always on
the wisdom of one person on the bench
what points uh... i'd love to hear discussed is whether we believe that uh...
jury verdicts really count
in uh...
in our practices anymore i have had a number of jury verdicts and now you see
a number of them publicized
where uh... they've been
tossed aside or nullified by the judge so many times in the personal injury area
which is not an injury
uh... not an area I practice in but you have these multi million dollar awards
they make the headlines but in point of fact
a the plaintiff doesn't see much money sometimes doesn't see any money because
the judge takes away
a part of the verdict orders a new trial and that
this this kind of balance against the judge that's called the jury is then
over balanced or nullified let me ask this question sydelle
let me put
in the context in which you have raised it
one of the most
bothersome issues
uh... in my mind in the court system today
the chicago council of lawyers have written about this issue extensively
and i was shocked that a bar association would dare to say
no matter how true it is
would dare to say what the chicago council said
isn't it true i'll put this as a question and you folks
all comment on it
is it or isn't it true
that one of the reasons
that first cases are not getting to the jury in the first place
and secondly
decisions made by juries are being overturned
is that judges have taken it upon themselves to perform a function
which is supposed to be for the jury
the function of deciding what the facts are in the case
point one and relatedly point two
what is your opinion of the following statement
when they don't like
when they want a particular result
they either ignore facts or
they make up facts
I throw that open for anybody's discussion well this is just imposition of the will I
mean i think that this is
you know that there's a real problem in the judiciary you did touch on it earlier
when you said idealogical i do believe that there is a real logical problem on
the bench i believe that
a lot of judges are now being encouraged really to be ideological what i mean by
that is that
they are say in in my practice I do a lot of environmental cases toxic tort cases
cases which are really on the cutting edge of science uh... you know do chemicals
cause cancer and that kind of thing
and what judges are doing all too often is they're taking off the black robe and
putting on the white lab coat and they're saying well
i'm not going to allow this scientist to speak because I've decided that that science is invalid or
I've decided that uh...
his or her conclusions aren't valid and so therefore i'm not going to let them
come in and tell the jury
about this I won't let that be a jury decision and that's happening to a great
extent it's now been up in front of the supreme court now it's now going on the
second time what are the rules
uh... that prevent the judge
you know uh... are the circumstance in which they can take off the black robe and then
put on the scientist's lab coat
and start saying what the science and the medicine is
larry i believe that we have really undergone a real metamorphosis in our and society
and you go back into the uh... sixties and seventies I'm probably giving you my age to but one of the things you're in your early sixties or seventies 0:50:25.799,0:50:30.559 I was very active during the sixties and seventies
but one of the things of course is that now we have television in the courts
and the
the television of course and the t_v_ and the news media
they put a tremendous amount of pressure on these judges
and the pressure of course is that
uh... it's not what the jury's going to say
and we know we just finished a case here in the commonwealth of massachusetts
but basically is that what is the crowd outside during I mean judges are just like anyone
else they're human they go home
they turn on the t_v_ and they look and they see exactly what's going on uh... you know
and you can you can rest assured it does
have some type of affect on them
how they're going to do something and they say no we we don't
truly it's they do
okay and that's causing them to determine facts one way or the other well
i i i i think it's persuasive i think it's very very persuasive but i want to
counter that exactly i want to counter that because i uh... i
find that it's the lack of the
uh... openess in the courtroom you know the darkness that was in the court which is
the corrupting aspect i feel more comfortable
uh... having more openess more involvement of public you know what is
happening that courtroom I like the fact that judges are thinking about the wider
audience and the example I'll just give you as my own personal one from the case
is i suffered uh... and my client suffered i think a real abuse of power
uh... decisions that were very quite abusive
uh... of fundamental rights
uh... it was and it was done in in broad daylight in a sense that it was done
with every
lawyer in massachusetts understanding what was going on this had to do with
withholding of evidence and the judge not recognizing it
but what i found when the book came out
uh... this which has now become a national bestseller and everybody's
reading it lawyers
lawyers spouses lawyers friends lawyers neighbors people who are not lawyers who
then get to talk to
lawyers and judges is
that is when
finally we confront
the abuse
in other words as a profession we couldn't confront the abuse even though it was done in
broad daylight we all knew about it it was on the front page of the lawyers weekly
but when it became a book and we all talked about it in a general in the
general culture all of a sudden there was a greater wisdom well that's not
right you know
gee that was a fundamental right here and
you know withholding evidence is a bad thing but we didn't talk about that before
when it was just our profession so I found the power of the book and now i think also
the discussion of the movie but
so I like the openness I like the connection
I like the general public knowing what we do and how we do it it's good for us i
think we need it
in the federal courts too
we
the federal courts are a big mystery and you mentioned at the
beginning with the judiciary is the third branch of government
it's equal
to the administration and the president's and the the cabinet
and it's equal to the legislature
and it's the most mysterious
branch of the government but if we shone some light on it
we'd be better off but you know one of the things that i enjoy mentally is that
coming home late at night and turning on the uh... cable
and what do i see
but the difference the different uh...
uh... talk shows and there not talk shows they're talk shows about law i mean now we are
in the courts I mean the media's there they're in there they're listening to everything it's a
it's open
and you know you said the light of day coming into the courtroom
the light of day now is starting to come into the courtroom and we're starting to see
exactly what judges are doing
and of course the mystery is now being removed but not in the federal courts
I think there has to be some balance uh... I'm just
thinking if you think about the simpson
trial must we well there's a good
there's one good part that i remember that we've all sort of forgotten because the trial was so awful
but the preliminary hearing
a few months before the trial
was one of the great educations about the fourth amendment to the public
we've all forgotten about it but the public watched
those hearings about the suppression of evidence very carefully
and i found
that when you
you know frequently we get into arguments you know about people being excused
for technicalities and what is all this
stuff mean as though it's not important
all of a sudden the average citizen got a chance to hear about what the fourth
amendment was about oh that's right I don't want the police
barging into my house
it was very educational
uh... had the
judge I think controlled the courtroom during the trial the trial might have been
educational to but of course it
deteriorated we don't need 0:54:44.169,0:54:45.769 to go into it right
i think that 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 is that trial
judges
uh... by and large have been better have been closer to the situation
more open to being
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 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 uh…to bring that out
uh... but at the appellate level and we certainly have this in the seventh
circuit
you have judges sydelle mentioned who
and I think you stated it exactly right their whole training has been to have an
ideological or a 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 an 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 in law theory which has some good points
but uh... and then he said these are the facts or these are wha
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
be this
let me ask this i wanted to get back to that 'cause 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 silly but
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 when you said he upheld
the summary judgment what that in affect 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 going to say what the facts are or are not
jan marty made a comment
which i'm not that experienced at the trial
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 have definitely had such an experience
i think i thought you might say so that's right definitely uh... written about in
jonathan's book a civil action which
you know i'm i'm proud to say pleased to say many law schools in the country
as a point of discussion it goes back to my point about we need this can I tell you something
about that yes i could only read it twenty pages at a time it is so painful right
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 that you know the good the bad and the ugly
and uh... and
so i think that the
it is this uh...
you know need for this open and honest discussion because yes
there is this arrogance of power
and uh...
and it's a terrible feeling to be a lawyer to go into court and to have done your
job
you know to have marshaled 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 to have the judge come and say well it's not important in other words
it doesn't really make any difference that you did your job and so therefore
you say to yourself 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 i have to a i've been
told that i must cut off the discussion
uh... and i wanna thank
lady and gentlemen for being here now let me let me say this
for the first time uh... in any of my experiences moderating these shows i've
made no effort
none at all
to get through the outline
topics that I wanted to have discussed and you touched on so many things that are so
important and that we did not get to
uh... and one of the reasons
that i didn't make an effort o get throughout it it is I would like us to come back
and I will try and arrange a date that's covenient for all of you and marty you live in chicago so your schedule
will be very important if you're willing to come back
and we will continue on with this uh... i think this is such a crucial
set of topics that we are discussing we will continue on with it
for the audience thank you very much for watching and listening
we hope that it was informational and educational
and we hope that the next program on the subject will be equally so
thank you very much