A Pennsylvania attorney recently authored When Judges Become Opponents: Balancing Your Duties to Client and Court on The Legal Intelligencer. He says his perspective is "as a younger attorney," and according to his firm profile, he is about three years out of law school. He raises some interesting points that are perhaps worthy of further discussion.
The Attorney is both critical of the comments made by a workers' compensation judge and seemingly reticent about providing details that would identify the judge. His firm profile suggests his focus is Pennsylvania, but the firm has "offices throughout Pennsylvania, New Jersey, New York, and California." From the information provided, potentially, this attorney's story could relate to any number of workers' compensation judges.
The attorney characterizes some litigation experiences as a "difficult tightrope walk." He describes a perception of conflict between his role as a "zealous advocate" and remaining deferential "to the judiciary." And, he describes an experience in which he contends the judge became "openly partisan" and thus departed from the role of impartial adjudicator.
The role of judges is not a new topic. In To Do Equal Right, this blog discussed the potential for perceptions of partisanship in adjudicatory roles. That post focuses some attention on the perceptions and comments of Chief Justice Roberts of the Supreme Court of the United States (SCOTUS). He has emphasized the role of being an umpire, of enforcing the rules. Justice Roberts has urged humility, reminding us that it is not the umpire that brings people to the game.
That analogy to a "game" is perhaps a bit troubling as litigation is about important, and because it is about important conflicting, rights and obligations being sorted out. But, from Justice Roberts' analogy, perhaps there are multiple roles in the litigation "field." There are players who participate in the game, advisers (mentors) who coach the players, and umpires who enforce the rules and make interpretations. Those interpretations may be procedural and incremental (about a single pitch or play) or substantive and global (who wins). It is admittedly an imperfect analogy, a trial to "game," but perhaps it is instructive nonetheless.
No one expects to see a coach take the field and make a play. Similarly, perhaps a more experienced attorney may sit through a trial to provide advice, encouragement, and support to an attorney. But that mentor likewise does not pinch hit or run. Certainly, no one expects the umpire to interrupt the batter, take the bat, and pinch hit (while simultaneously making decisions as to which pitches are balls or strikes). Similarly, a judge is expected not to become the advocate and simultaneously decide whether questions are appropriate or not (most judges would be inclined to conclude her or his own questions are acceptable and appropriate).
This blog has also attempted to acknowledge the challenge of being a young lawyer, new (even relatively) to the difficult and intertwined roles of advocate, counselor, and negotiator. In Airspeed and Altitude (March 2013), there are recognitions that litigation is a difficult environment. There are stressors that impact practitioners; some can be influenced and others are merely part of the environment. The latter can be adapted to, and accepted, but perhaps not influenced or changed. It is not easy being a litigator.
But, this young lawyer recounts an exchange with a judge that led to the attorney's perception of hostility and potential bias on the judge's part. The attorney recounts attending the client's "first hearing" and eliciting testimony from the injured worker. This was essentially apparently related to the work, the injury, an approximately two-year rehabilitation, and possibly perceptions regarding return to work. It was stressed that the testimony had not been contradicted (or seemingly even cross-examined) at this stage of the proceedings.
Counsel perceived that during the presentation of the workers' testimony, the "workers’ compensation judge took over most of the direct examination." The young lawyer expressed surprise that the judge did so, but was seemingly more surprised that the judge's questions were not presented "as a plaintiffs lawyer would, but rather, as a defense attorney." The young attorney perceived "leading questions," from the judge and they were interpreted as "an attempt to disprove the veracity of the injured worker’s case." Thus, though during "direct," the questions perhaps sound more like "cross?"
Perhaps this young attorney perceived that the judge had departed from referee or umpire and proceeded through the role of coach, directly to taking an active role as a player.
The attorney expresses frustration over perceptions. There is an acknowledgment that litigation presents difficult decisions for the attorney, some that afford merely "a split second" for reflection and consideration. There is a recognition that the judge will eventually make the decisions that are fundamental to the point of the litigation: what rights, claims, or defenses prevail. There is an expression or suggestion of a conflict for counsel in deciding between advocacy for the client and alienation of the judge. There is a lamentation that law school fails to provide a litmus for handling such a situation.
The lawyer recites comments that were made by the judge "on the record" including a mention of whether some "nuisance value" might obviate the need for further litigation. The attorney asserts that thereafter there were comments made "off the record"; comments "directed at" the injured worker that perhaps implied a comparison of this worker's situation and injury to other workers and situations. This, the attorney alleges, ended with advice that the worker "should be looking to return to work."
This off-the-record discussion allegedly continued until the attorney interrupted and asked that it cease. The attorney alleges that at that time the judge "apologized" and explained, "she may have been wearing her 'mediation' hat." That alleged statement implies that it is at least possible there was recognition of there being various potential roles in this process, and that one might switch roles, intentionally or not. The attorney concludes with a "prospect of seeking recusal" (a side note, parties to a case would seek a "disqualification," while a judge would unilaterally remove her or himself with a "recusal).
The article is worthy of note for several reasons, addressed here in no particular order. First, as an adjudicator, I see no reason for discussions of any kind off the record. Everyone has been in a "may I speak to you privately" situation in their lives; everyone has heard the "anything you have to say to me you can say in front of _______." That is apropos in the judicial realm. Anything a judge has to say can be said on the record (write every email like your grandmother will read it). In this example, the attorney alleges what was said off the record. But the recollections of those present are the only proof.
Over the years I have spent supervising judges and managing a litigation system, I have heard many allegations regarding what was said (or not said) during particular proceedings. The allegations that are most easily addressed involve proceedings on the record. When there is a record, what was said and in what tone is much easier to discern. Such allegations are less dependent upon the perceptions and recollections of witnesses to the alleged statement. If there is a discussion, it should be on the record. This protects the parties and the proceedings.
The second point worthy of discussion is that the judge's role is not as an advocate or negotiator. It is not the judge's role to decide what questions should be asked of which witnesses. It is the judge's role to listen to the evidence that the parties present. On this point, there is no universal agreement. But, any litigator will likely admit that there are sometimes specific reasons that a particular question or theory of the case is or is not pursued.
In my experience, lawyers strive to be prepared. They often live by the legal maxim of "don't ask a question you do not know the answer to." Because a lawyer knows the answer (and does not like it) or does not know the answer, she or he may elect not to ask the question. That is a tactical decision, the lawyer's decision. While some questions might nonetheless occur to the judge, it is presumptuous to assume the role of advocate and ask that question. That is not to say a judge should never ask a question; it is to say that a judge should be reticent about such urges and consider carefully whether doing so will be (or perceived to be) an abandonment of the impartial role.
The third point was unspoken by the author but is worthy of mention. The players should be as reluctant prospectively as this attorney is critical retrospectively. Upon the conclusion that judges should be umpires and not players or even coaches, lawyers should refrain from seeking to draw judges into those other roles (don't "draw the foul"). Lawyers should not seek the judge's advice on issues in a case.
Over the years, I have heard anecdote after anecdote of lawyers seeking guidance. They are confronted with issues and complications. They face uncertainty and perhaps fear. They will call, have staff call, and schedule "conferences" or hearings to explain their complication or questions to the judge or staff. They may cajole or hint at a need for advice or succor. They may outright ask "What do I do now?" And, the appropriate judicial answer to those inquiries is as clear in that prospective setting as it is above, the judge should not abandon the adjudicator role. What is the next step? What do I do now? The answer is for the lawyer to find, with the help of fellow players or coaches (mentors), not for the adjudicator to suggest or recommend.
The young lawyer makes a final point that is worthy of mentioning in closure. That is, "even when disagreeing with a judge who you believe is acting inappropriately, it is important to remain respectful but forceful when necessary." From experience, there is no one I respect more than a zealous and persistent advocate. The best lawyers I have known are capable of such zest and advocacy without offense to opposing parties, attorneys, or the bench. They have mastered the art of disagreeing without being disagreeable. Their professionalism and skill in such settings enhance them.
Counsel should be ever respectful of everyone in the proceeding, and of the proceeding itself, the law itself. Be critical, be effective, but remain respectful throughout. That is a valuable service to the client, but it is also a fulfillment of the obligation undertaken as a member of the legal profession. Judges should likewise remain in the role of adjudicator throughout. They should make rulings on the issues presented (call the pitch that is thrown), and refrain from providing either pitcher or batter with advice (solicited or not). Finally, Judges should remain vigilant and aware that the "appearance of impropriety" may be as troublesome as actual impropriety under the Code of Judicial Conduct.
The Attorney is both critical of the comments made by a workers' compensation judge and seemingly reticent about providing details that would identify the judge. His firm profile suggests his focus is Pennsylvania, but the firm has "offices throughout Pennsylvania, New Jersey, New York, and California." From the information provided, potentially, this attorney's story could relate to any number of workers' compensation judges.
The attorney characterizes some litigation experiences as a "difficult tightrope walk." He describes a perception of conflict between his role as a "zealous advocate" and remaining deferential "to the judiciary." And, he describes an experience in which he contends the judge became "openly partisan" and thus departed from the role of impartial adjudicator.
The role of judges is not a new topic. In To Do Equal Right, this blog discussed the potential for perceptions of partisanship in adjudicatory roles. That post focuses some attention on the perceptions and comments of Chief Justice Roberts of the Supreme Court of the United States (SCOTUS). He has emphasized the role of being an umpire, of enforcing the rules. Justice Roberts has urged humility, reminding us that it is not the umpire that brings people to the game.
That analogy to a "game" is perhaps a bit troubling as litigation is about important, and because it is about important conflicting, rights and obligations being sorted out. But, from Justice Roberts' analogy, perhaps there are multiple roles in the litigation "field." There are players who participate in the game, advisers (mentors) who coach the players, and umpires who enforce the rules and make interpretations. Those interpretations may be procedural and incremental (about a single pitch or play) or substantive and global (who wins). It is admittedly an imperfect analogy, a trial to "game," but perhaps it is instructive nonetheless.
No one expects to see a coach take the field and make a play. Similarly, perhaps a more experienced attorney may sit through a trial to provide advice, encouragement, and support to an attorney. But that mentor likewise does not pinch hit or run. Certainly, no one expects the umpire to interrupt the batter, take the bat, and pinch hit (while simultaneously making decisions as to which pitches are balls or strikes). Similarly, a judge is expected not to become the advocate and simultaneously decide whether questions are appropriate or not (most judges would be inclined to conclude her or his own questions are acceptable and appropriate).
This blog has also attempted to acknowledge the challenge of being a young lawyer, new (even relatively) to the difficult and intertwined roles of advocate, counselor, and negotiator. In Airspeed and Altitude (March 2013), there are recognitions that litigation is a difficult environment. There are stressors that impact practitioners; some can be influenced and others are merely part of the environment. The latter can be adapted to, and accepted, but perhaps not influenced or changed. It is not easy being a litigator.
But, this young lawyer recounts an exchange with a judge that led to the attorney's perception of hostility and potential bias on the judge's part. The attorney recounts attending the client's "first hearing" and eliciting testimony from the injured worker. This was essentially apparently related to the work, the injury, an approximately two-year rehabilitation, and possibly perceptions regarding return to work. It was stressed that the testimony had not been contradicted (or seemingly even cross-examined) at this stage of the proceedings.
Counsel perceived that during the presentation of the workers' testimony, the "workers’ compensation judge took over most of the direct examination." The young lawyer expressed surprise that the judge did so, but was seemingly more surprised that the judge's questions were not presented "as a plaintiffs lawyer would, but rather, as a defense attorney." The young attorney perceived "leading questions," from the judge and they were interpreted as "an attempt to disprove the veracity of the injured worker’s case." Thus, though during "direct," the questions perhaps sound more like "cross?"
Perhaps this young attorney perceived that the judge had departed from referee or umpire and proceeded through the role of coach, directly to taking an active role as a player.
The attorney expresses frustration over perceptions. There is an acknowledgment that litigation presents difficult decisions for the attorney, some that afford merely "a split second" for reflection and consideration. There is a recognition that the judge will eventually make the decisions that are fundamental to the point of the litigation: what rights, claims, or defenses prevail. There is an expression or suggestion of a conflict for counsel in deciding between advocacy for the client and alienation of the judge. There is a lamentation that law school fails to provide a litmus for handling such a situation.
The lawyer recites comments that were made by the judge "on the record" including a mention of whether some "nuisance value" might obviate the need for further litigation. The attorney asserts that thereafter there were comments made "off the record"; comments "directed at" the injured worker that perhaps implied a comparison of this worker's situation and injury to other workers and situations. This, the attorney alleges, ended with advice that the worker "should be looking to return to work."
This off-the-record discussion allegedly continued until the attorney interrupted and asked that it cease. The attorney alleges that at that time the judge "apologized" and explained, "she may have been wearing her 'mediation' hat." That alleged statement implies that it is at least possible there was recognition of there being various potential roles in this process, and that one might switch roles, intentionally or not. The attorney concludes with a "prospect of seeking recusal" (a side note, parties to a case would seek a "disqualification," while a judge would unilaterally remove her or himself with a "recusal).
The article is worthy of note for several reasons, addressed here in no particular order. First, as an adjudicator, I see no reason for discussions of any kind off the record. Everyone has been in a "may I speak to you privately" situation in their lives; everyone has heard the "anything you have to say to me you can say in front of _______." That is apropos in the judicial realm. Anything a judge has to say can be said on the record (write every email like your grandmother will read it). In this example, the attorney alleges what was said off the record. But the recollections of those present are the only proof.
Over the years I have spent supervising judges and managing a litigation system, I have heard many allegations regarding what was said (or not said) during particular proceedings. The allegations that are most easily addressed involve proceedings on the record. When there is a record, what was said and in what tone is much easier to discern. Such allegations are less dependent upon the perceptions and recollections of witnesses to the alleged statement. If there is a discussion, it should be on the record. This protects the parties and the proceedings.
The second point worthy of discussion is that the judge's role is not as an advocate or negotiator. It is not the judge's role to decide what questions should be asked of which witnesses. It is the judge's role to listen to the evidence that the parties present. On this point, there is no universal agreement. But, any litigator will likely admit that there are sometimes specific reasons that a particular question or theory of the case is or is not pursued.
In my experience, lawyers strive to be prepared. They often live by the legal maxim of "don't ask a question you do not know the answer to." Because a lawyer knows the answer (and does not like it) or does not know the answer, she or he may elect not to ask the question. That is a tactical decision, the lawyer's decision. While some questions might nonetheless occur to the judge, it is presumptuous to assume the role of advocate and ask that question. That is not to say a judge should never ask a question; it is to say that a judge should be reticent about such urges and consider carefully whether doing so will be (or perceived to be) an abandonment of the impartial role.
The third point was unspoken by the author but is worthy of mention. The players should be as reluctant prospectively as this attorney is critical retrospectively. Upon the conclusion that judges should be umpires and not players or even coaches, lawyers should refrain from seeking to draw judges into those other roles (don't "draw the foul"). Lawyers should not seek the judge's advice on issues in a case.
Over the years, I have heard anecdote after anecdote of lawyers seeking guidance. They are confronted with issues and complications. They face uncertainty and perhaps fear. They will call, have staff call, and schedule "conferences" or hearings to explain their complication or questions to the judge or staff. They may cajole or hint at a need for advice or succor. They may outright ask "What do I do now?" And, the appropriate judicial answer to those inquiries is as clear in that prospective setting as it is above, the judge should not abandon the adjudicator role. What is the next step? What do I do now? The answer is for the lawyer to find, with the help of fellow players or coaches (mentors), not for the adjudicator to suggest or recommend.
The young lawyer makes a final point that is worthy of mentioning in closure. That is, "even when disagreeing with a judge who you believe is acting inappropriately, it is important to remain respectful but forceful when necessary." From experience, there is no one I respect more than a zealous and persistent advocate. The best lawyers I have known are capable of such zest and advocacy without offense to opposing parties, attorneys, or the bench. They have mastered the art of disagreeing without being disagreeable. Their professionalism and skill in such settings enhance them.
Counsel should be ever respectful of everyone in the proceeding, and of the proceeding itself, the law itself. Be critical, be effective, but remain respectful throughout. That is a valuable service to the client, but it is also a fulfillment of the obligation undertaken as a member of the legal profession. Judges should likewise remain in the role of adjudicator throughout. They should make rulings on the issues presented (call the pitch that is thrown), and refrain from providing either pitcher or batter with advice (solicited or not). Finally, Judges should remain vigilant and aware that the "appearance of impropriety" may be as troublesome as actual impropriety under the Code of Judicial Conduct.
