I overheard a recent conversation involving our old friend Horace Middlemier. He was preparing a case for trial and was concerned about proving the elements of this case. He was curious about the judicial mindset, and asked a group of other lawyers "straight-up" whether they thought he could "count on" the trial judge knowing “how things really are.“
You see, Horace had been preparing this case for a fair few months. He is an experienced practitioner, well-versed in his specialty of the law. He well knows the elements which he will have to prove in order to both prevail (have the decision go in his client's direction), and succeed (have it do so in a significant manner sufficient to remunerate his client sufficiently). I was, admittedly, confused by his question. I was apparently not alone as one of the other layers asked: “what do you mean 'the way things are?'”
He explained that one item to be proven was the quantity of damages. His case would require the judge as a “finder of fact“ to place a monetary value on the damages. He explained that he had considered bringing witnesses to testify about the nature and extent of damage, and the cost which would be required to restore his client's structure to pre-storm status.
However, he explained, it’s somewhat of a hassle to arrange witnesses, prepare arguments, and submit evidence of such a detailed nature. He was therefore inclined, instead, to simply count upon the judge to “know how things are.” He mentioned how "long that judge has been on the bench" and that the judge "has lived around here a long time." He prognosticated then that: “After all, any fool knows it costs a lot of money to repair a storm-damaged house.”
My response (that I bit my tongue and kept to myself) would have been: “are you saying you hope the judge goes outside of the record evidence and makes decisions in your case based upon his or her own experiences, perceptions, or conclusions from unknown sources, predisposition‘s, or biases?“ I can just imagine old Horace replying with a chuckle “well only if they’re in my favor.“ Horace is the first to admit that he persistently eyes behavior in an "outcome-oriented" manner. The "right" and "wrong" in his perspective often depends on whether the action/words benefit or burden old Horace.
Why do lawyers bring the evidence that they do? From a strategic perspective, how much evidence is appropriate? Or, for that matter, what are the risks that each element of proof may bring to accompany its benefits? That is one that young lawyers (and those who fail to learn from mistakes) often fail to appreciate - any witness can be grand or dismal, it depends on them, the questions they are asked, and their answers. Any witness might support an element of a case, bolster other evidence, or utterly undermine the theme or foundation of the case. It’s entirely possible for a witness to make a case, and just as possible for them to break it.
Lawyers decide what questions to ask, what witnesses to select, what order to present their evidence, and what arguments to make. It’s a foundational, elemental, part of our adversary system that the job of the lawyer or advocate is to present the case as they deem appropriate. It is not the role of the adjudicator to interject into that process and to provide, somehow, proof that was not presented.
Can a lawyer count on the judge to “know how things really are?“ The answer to the question, from my perspective, is simple. Lawyers should be able to count on judges to decide cases based on the law and the record evidence. Lawyers should be able to count on judges to leave their biases, predispositions, and prejudice at home. Lawyers should be able to count on an impartial, consistent, and persistent bench. No, a lawyer cannot count on judges to go looking for facts and evidence that have been omitted by the lawyer (see Sleuthing Addressed Again).
Judges should likewise be able to count on lawyers to bring their best case. They should be able to count on lawyers to be prepared, informed, articulate, and concise. Judges should stay in between the lines ("stay in your lane") and let the lawyers try their case. If the lawyers fail to bring the evidence their side needs, that may work to the detriment of their client, but is simply not the judge's (the impartial arbiter) role to fix such shortcomings. There is no way for a judge to know why some evidence was not brought, it may not exist, it may be perceived as too risky, and the strategy may not be clear.
The judge and the lawyers each have a unique and important role in the litigation process. Each should be able and willing to perform their role, while confidently trusting in the other to do the same. No, Mr. Middlemier, you cannot count on the judge to make assumptions, go in search of fact, or make your case or defense based on what she/he "knows," has heard in other cases, or might assume. It’s not the judge's role, and it demonstrates nothing but a decision on the lawyer's part to perform their role.
