"The central doctrine of Christianity, then, is not that God is a bastard. It is, in the words of the late Dominican theologian Herbert McCabe, that if you don’t love you’re dead, and if you do, they’ll kill you."--Terry Eagleton

"...doesn't philosophy amount to the sum of all thinkable and unthinkable errors, ceaselessly repeated?"--Jean-Luc Marion

“The opposite of poverty is not wealth; the opposite of poverty is justice."--Bryan Stevenson

Wednesday, August 08, 2018

"Judge not, lest ye be judged"

So this caught my eye the other day (mostly because of the comments at the post about the judge):

U.S. District Judge T.S. Ellis III pressed prosecutors to limit their use of an extensive trove of evidence, saying that some documents and photographs were not relevant to charges that Manafort tried to hide millions of dollars in income on his tax returns.

At one point in the trial’s second day, Ellis also said he was told that attorneys on both sides had been seen rolling their eyes after leaving the bench or in response to his rulings. The lawyers’ facial expressions, Ellis said, appeared to show them thinking “why do we have to put up with this idiot judge?”

Since then there has been a story of the judge challenging the prosecutor, in a bench conference, not to cry in his court.  Some may think that was done in open court, in full view and hearing of the jury, but it was a "bench conference."  The judge was talking privately, not publicly, to the attorney, and frankly, it's hardly a mark of pride in trial lawyers to let the judge hurt your feelings.

I've told people I got over my shyness about speaking in public by being yelled at in court by judges.  I have had them yell at me in hearings for violating the decorum of the court.  It's the way trial lawyers learn how to conduct themselves in court; not unlike a pup getting snapped at by the leader of the pack, to learn how to fall in line.  If you can't take it, you find another venue of legal work.

But mostly, what non-lawyers don't understand is that you don't fuck with a federal judge.

The only federal trial I ever worked (as a legal assistant, before law school) was a product liability case involving an A-10, a brand new plane at the time. It was a wrongful death case with 2 defendants, the manufacturer of the plane and of the plane's ejection seat. I can still, 30+ years later, tell you more than you ever want to know about military ejection seats circa 1980.  It was something of a first impression, bringing a strict liability claim for wrongful death against two defense contractors. There was a reason the parties wanted time to try the case.

We went to court planning on a three week trial. The judge informed us he had a trial set in Pecos (yes, Roy Bean country) the following Monday, and he would be in attendance there. We were in Austin, and we knew he didn't plan to commute between trials (look at a map if you have to). So the plaintiff had three days, each defendant had one day apiece, and the case went to the jury on Saturday. Judges hate to be in court on Saturday, but the judge kept to his schedule and was in Pecos on Monday.  He even kept the jury until 8 o'clock on Thursday (a callback to the days when stores closed at 5, but stayed open "late" on Thursday nights. Yes, I am old.).  Lifetime appointment gives you certain liberties.

Today the federal courthouse in Pecos is named for that judge. I don't think the Austin federal courthouse carries anyone's name to this day.  He left quite an impression.

Did the judge slant that case in favor of the plaintiff?  Probably.  It was a gruesome case already:  the plaintiff brought a wrongful death suit on behalf of her husband, whose spinal cord was severed by his spine when he ejected from his faulty A-10.  I'll spare you the details, but I learned far more about human anatomy and the damage our technology can do to it in those years working for that law firm.  The pace of the case, the long days, the pressure-cooker atmosphere the judge created, undoubtedly helped the plaintiff win the jury's sympathies against a defense that was basically "We gave the DOD what they asked for," a defense that really isn't that sound in any case (two years later I worked on a civil engineering case, where our client had built the drainage system the architect wanted to budget for.  It was inadequate, and the building flooded shortly after it opened.  We had pretty much the same defense to offer, and it wasn't a strong one.).  But the judge gave the plaintiff plenty of time, the defense far less, and forced the thing to an exhausted jury at the end of five very long days (and a 10 hour Thursday).  So this happens, especially with federal judges.  judge in the Manafort case sounds normal to me. Judges control their courtroom, and given the egos of trial lawyers (and the parties, sometimes), they need to. Federal judges are a breed apart because their appointment is for a lifetime.  They don't have to please a judicial commission, or the governor, or the voters (who will mostly be lawyers), or even stay on good terms with anybody.  I'm not saying this judge is an exemplar, nor is he an asshole; I'm saying he's not unusual.  This judge is not quite as extreme as the one of my memory; but he is determined to finish this case as expeditiously as possible which, considering the time it takes away from the lives of the jurors to sit in a trial, is probably a commendable thing.

And I'm glad I'm not appearing before him.

Of course, it's the internet; what's the point of the internet if you can't feel superior to other people?


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