I was recently back in training mode as the Florida OJCC onboarded three new judges. The latest appointments are important to our vision and strength. First, they bring us somewhat back from a difficult 2022 (our 2023 began July 1, 2022). Over the last year, we saw the passing of Judge Dietz in January. That was a bizarre telephone call to receive one Saturday morning. We also saw the Governor make seventeen judicial reappointments in March. But, that left us with five vacancies around the state, and one impending retirement.
Thus, the three new appointments brought me reminiscence of Judge Dietz. In April this year, the Workers' Compensation Section of The Florida Bar presented his wife and children with a posthumous Frierson-Colling Professionalism Award. That was fitting. One cannot think of Judge Dietz without reflecting on professionalism. One of Robert's favorite quips to new judges was that his jokes became 63.2% funnier the day he became a judge. The absurdity of the specific percentage was part of the gag, as was the underlying truth that parties and attorneys may feel pressured to laugh at the judge's jokes.
These thoughts came together for me in Orlando at our new judge orientation. Reminded of the humor, I was drawn back to news coverage of judicial humor in late 2021 during a widely publicized trial regarding a shooting. USA Today covered the instance and led with the headline "How not to be a good judge." Those kinds of banners attract my attention.
The story noted that Wisconsin Judge Schroeder was no stranger to headlines, having just previously been in the news for an angry outburst in the same trial. But, this particular attempt at humor had led some to focus "criticism and accusations of bias." In fairness, the conducting of a trial is not easy. Further, the attention of the press upon every word has to be somewhat distracting. It is likely fair to say that the judge had both critics and admirers, and was in a stressful environment for an extended period.
This quip apparently occurred when there was some inquiry or discussion regarding the trial breaking for lunch. In my trial experience, the coordination of witnesses and arguments to accommodate for a reasonably timely lunch break can be challenging. There is much to accomplish in trial and even the best made plans of lawyers regarding timing are frustrated. In this instance, the judge apparently had our nations supply chain on his mind. Recall that a big news story in the fall of 2021 involved the challenges with processing goods through our nation's ports, including Long Beach California.
The Judge incorporated that logistical challenge with a remark regarding "Asian food" anticipated for lunch. Essentially he expressed that he "hope(d) the Asian food isn’t coming . . . isn’t on one of those boats along Long Beach Harbor." USA Today reported that there were those who "found the joke offensive." It was referred to as a "thinly veiled anti-Asian comment." The judge was accused of being "a bigot."
This led critics to look beyond Judge Schroeder and criticize the Wisconsin judiciary, its "selection system" (judges are apparently appointed and then stand periodically for retention or reelection), and the absence of a mandatory retirement age. The critic quoted regarding retirement age was not criticized by USA Today for this seemingly broad indictment of mature persons. The comment's implication was seemingly that someone's age alone implicates or suggests her/him being "intemperate and unfit." That stereotyping by a former United States Governor was quoted by the reporter, but in no way challenged or disavowed.
To some, that may seem incongruent. But, in fairness it is the role of the judge to be unbiased. Perhaps impertinence and hyperbole is to be generally expected (accepted?) in society, such that it is no longer noticed or corrected? Perhaps it is only in our judiciary that we anticipate or expect avoidance of intemperate language?
That does not mean judges do not deserve special scrutiny, they do. Judges are specifically obligated to "Uphold the Integrity and Independence of the Judiciary," Canon 1, Florida Code of Judicial Conduct (FCJC). Judges shall "avoid Impropriety and the Appearance of Impropriety, Canon 2, FCJC. They will "perform the Duties of Judicial Office Impartially and Diligently," Canon 3, FCJC.
These are obligations we assume in this job, and part of that is avoidance of puffery, audaciousness, and even humor. In the end, we must be more careful because the Code guides us there. Such constraints apply to judges, and we are obligated to some extent to "require similar conduct of lawyers, and of staff, court officials, and others subject to the judge’s direction and control." Canon 3, FCJC. Thus, it is the Code that guides judges, and that guide does not apply in the general population or society.
There have been criticisms of judicial humor in the past, some even scholarly, like Judicial Humor: A Laughing Matter? (A law journal article). This concedes that "this quality (humor) would be found in many judges," but the tenor of the article is nonetheless critical. Some have suggested that there is simply no room for humor in legal proceedings.
This public ire about humor is not directed at judges alone. Salon cites multiple instances in which attorney humor in legal proceedings was seen as untoward or worse. There is a general sense conveyed that trial proceedings are simply no place for humor. And, yet, we all perhaps crave some mood lightening from time to time. The issues with which trials are concerned are often serious, emotional, and difficult. They may result in angst, stress, and worse. Perhaps, some contend, "humor in different forms increases well-being and decreases anxiety on a short-term basis." It is a catharsis of sorts, maybe even on an unconscious level. Perhaps we turn to it innately when the stress reaches some personally intolerable level?
The Salon article is critical of judicial humor and attorney humor. It also directs attention at the challenges a judge may face in dealing with that attorney humor. The suggestion may also be that the judge could likewise struggle with humor attempts from witnesses as well. I have periodically heard lawyers argue that some witnesses' attempts at humor might be perceived as diminishing their credibility generally (believability), or even impacting perceptions of their candor. Those who take a judicial proceeding seriously may be viewed by others as more believable.
Does a witness enhance her/his believability by being human and genuine? If the person is naturally jovial and comical, might her/his struggle to contain that personality be noticed by a finder of fact (judge or jury) and the strain or stress of suppression misconstrued or misinterpreted? In reality, the containment of humor may pose challenges for witnesses that are similar to those posed by the humor itself. In that vein, might a lawyer or judge find her/himself similarly choosing between authenticity and the risks of humor?
In 2019, the American Bar Association (a voluntary group to which some lawyers belong) published an opinion piece titled Humor in the courtroom: No laughing matter. It quotes a conclusion of the Utah Supreme Court that perhaps sums up the challenge of judicial humor:
“It is an immutable and universal rule that judges are not as funny as they think they are. If someone laughs at a judge’s joke, there is a decent chance that the laughter was dictated by the courtroom’s power dynamic and not by a genuine belief that the joke was funny.”
Is that conclusion any different in the panoply of disparate power dynamics in which we all live? Could we not say the same thing about laughing at the boss' joke, the "cool kid's" joke, or a variety of other relationships we have experienced. Perhaps there are various similar incommensurate relationships that pose similar challenges?
But, it is in the hearing or courtroom that serious and life-changing decisions are made daily (though the boss making promotion decisions is perhaps equally life-changing in some instances). Hearings are arguably different. Judges are different, because of the Code. And, in that vein, the Judge is also specifically responsible for making sure lawyers and others in the litigation and judicial process likewise remain respectful and appropriate (Canon 3B. 5. and 6. FCJC.). Thus, additional pressure and responsibility on the judge.
I have stressed time and again that it is easy to determine which is the most important case in the world. Some struggle with that, in a desire or compulsion to engage in a differential comparison of the relative importance of issues, people, groups, and more. But the truth in tis regard is so easy to find.
The most important trial in the world is the one that these people are sitting in right now, today. The most important deposition? This one. The most important independent medical examination? This one. The most important re-employment job interview? You guessed it, and I am being redundant on purpose. Every case, deposition, examination, interview, etc. is the most important to someone. Lawyers get accustomed to litigation, as I suspect doctors get used to treatment, surgery, and more. We become familiar, but cannot become complacent from that familiarity. This piece (hearing, deposition, trial) of a case today is critical to someone. They deserve to have our full attention and our respect. They deserve the dignity of the "most important case in the world," theirs.
As we proceed through this calling, working through that workplace injury and recovery, it behooves us all to remember that each instance has the potential to be life-changing, significant, and even severe. Each employee and employer deserves our attention to the seriousness with respect, dignity, and patience. Our basic human frailty may make us uncomfortable. We may innately turn to humor as balm for ourselves or perhaps intended to soothe or calm those around us. Being aware of, conscious of, that tendency and the potential for its misperception are key.
Perhaps we can accomplish some good with a quip or an aside? Perhaps we can ease the nerves, provide a respite, and ease the collective journey. Or, perhaps we will misfire in our attempt and somehow belittle, disturb, or upset someone who finds her/himself in a strange alien world of litigation and dispute. We may, in our best-intentioned effort to ease and comfort, do more harm than good. The Salon article above notes examples of that for lawyers. The ABA article and USA Today provide caution for consideration of Judges.
And, we might add that when a litigant perceives the judge over the line, she/he/it might well seek a different judge. Beyond the Code cited herein, there is the chance a litigant might perceive bias from that humor. If so, and "the party fears that he or she will not receive a fair trial or hearing" therefore, and a motion for disqualification may be the next logical step. Florida Rules of General Practice and Judicial Administration, Rule 2.330. A proceeding could be delayed, resources wasted, and a new judge assigned because of a judge's humor or tolerance for the humor attempts of counsel or others.
All that said, the jokes will continue. Our human nature will draw us to quip in times of stress. Perhaps though, we might strive to remain conscious of the potential for detriment and damage, the potential for disqualification and delay. Perhaps we can all strive to keep the lightheartedness of human nature in its lane, occasional, and at all costs not insulting? It is worthy of our consideration.
