It is what it is

I find myself persistently surprised by the depth and breadth of the Code of Judicial Conduct. I am confident that I have studied it as much as any judge I know. I have had spirited debates about what it says, what it means, and what it doesn’t. I had a great debate last summer with a judge regarding the distinctions between recusal and disqualification.

The persistence of the intermingling and confusing of these two terms is somewhat frustrating. The distinction between them is clear, and I have written on the topic many times. The simplicity is that recusal is a voluntary, judge-initiated action of removal. Thus, there is never a basis for any "motion for recusal." That very phrase is oxymoronic and untenable. When a change of judge is sought by a party, then it is disqualification.

A judge would not "voluntarily disqualify" any more than a party would "move to recuse." The subtlety of the word use is not complex. Those who misuse either are frankly as troubling as those who mistake their, there, and they're. If anything, perhaps mistakes like that are more excusable as they at least sound alike. Recusal and disqualification are not malapropisms.

Don’t get me wrong, I love the discussion and the disagreement. Debate is healthy and makes us all better. We learn collegially. We grow through exposure to new ideas. We benefit from different perspectives on the law generally and the Code specifically. The discussion of recusal and disqualification last summer was thus interesting and informative.

Interpretation of the code can be challenging. There are ambiguities and there are perspectives. The rules are often not bright lines, but various degrees of acceptability nestled between those two poles. There is room for discretion, critical self-analysis, and even frustration. The main challenge is that the Code is clear in the duty to serve. Canon 3 B. provides this:

"(1) A judge shall hear and decide matters assigned to the judge except those in which disqualification is required."

The default is to preside. It is only for those in which "disqualification is required" that a judge is to forswear this primary responsibility. Therefore the grounds and bases for disqualification are of import. 

Some of the reasons for avoidance are quite clear, such as if the judge's spouse is a party to the proceeding, or if the judge is likely to be a witness in the proceeding. Others are more challenging, such as when "the judge's impartiality might reasonably be questioned," or "the judge has . . . personal knowledge of disputed evidentiary facts concerning the proceeding."

Neither recusal or disqualification is in any way a reflection on the judge. Some cases are not appropriate for a particular judge. So what? We merely assign a different judge. There is value in identifying such conflicts or "appearances" as early as possible. The longer a judge presides over a proceeding, the greater the potential for prejudice to either party from a recusal or disqualification. There can be frustration and expense from starting over. That said, we see such decisions made years after a case (and the grounds) exist. That is curious. 

Despite the many grey areas, there are instances in which it is the judge who creates such a need for disqualification. There are actions and behaviors that are at once riskier to the process and very simple to avoid. There is potential for those to be innocent miscues, but, Huey Lewis pointed out in my youth, “Sometimes, sometimes bad is bad.” And in that vein, there are a few interpretations of the Code that are reasonably clear.

Judges are not advocates. Judges are not inquisitors. It is the judge's job to ensure a fair proceeding. It is the judge's job to resolve conflicts in process, evidence, and the law. It is the judge's job to make decisions. Right or wrong, we are to make decisions. When we are wrong, we are fortunate that there are appellate judges and their benefits of collective and collaborative review. They are blessed with time and contemplation opportunities that elude many (most) trial judges.

We are not advocates. Every judge has experienced that trial in which some attorney has utterly and completely missed the boat, dropped the ball, and failed the client. It is hard watching any client failed by unprepared, incompetent, or inattentive counsel. That it is hard is just a fact of life. That it is hard is not an excuse for the judge to disregard the burden of impartiality and assume the role of inquisitor or advocate. Judges are never advocates. 

There are setbacks in a trial. There are challenges. There are victories and defeats. There are trials in which the important questions are not asked, the critical evidence is not presented, and the client is prejudiced. That is perhaps unfair. The client should perhaps not, in a perfect world, suffer the injury or damage inflicted by incompetent or inattentive counsel. But, each party chose her/his/its counsel. This is the attorney that the party wanted. The client receives the attorney's benefit and burden, strength and weakness, success and failure. Fair? Not always.

It is perhaps impossible to not be troubled by the glaring failures. Trial is an expensive, arduous, and complicated end to a long process. I have tried many cases in my career, and presided over many, many more. I have witnessed the clash of titans. I have lost sleep over difficult decisions. I have silently commiserated with the disappointed and disenchanted. I have persistently remained impartial and objective. And I have seen various parties utterly failed by counsel, by lack of preparation, by lack of comprehension.

That is the nature of trial. There are opportunities to prepare. There are careful, precise, and persistent assemblies of evidence. There are days when the plan is executed just as expected. That is a great feeling for a litigator. There are moments of inspiration and opportunity. The prepared mind catches those, seizes the moment, and that feels even better. The great litigators are amazing, and watching them can be enthralling.

But there will be times when the lawyer does not prepare. There will be times that the plan does not come to fruit. There can be disappointments, misfires, and shortfalls. Those can be troubling and undermining. They can raise the litigator's blood pressure, challenge her/his patience, and frustrate the litigator's desired, anticipated, and expected progress. Those moments can hurt. Every litigator has been there. 

However, none of this ever means it is the judge’s role to pick up the pieces, ask the critical questions, identify the critical evidence, and try a party’s case. The judge’s job is to be an impartial arbiter of the law. Period. That evidence is missing is not a void for the judge to fill. It is not for the judge to take sides, repair voids, or devolve to advocacy. While the Code may have its ambiguities and uncertainties, there is no room for advocate judges. The moment a judge begins to advocate, the impartiality is doomed. 

That is why judges should not go searching for facts or evidence on the internet or in books. That is why judges really should not be doing legal research to fill the voids of any party’s preparation. Fair warning, the Florida District Court has disagreed with me on that point. That doesn’t mean the court is right, only that it is last. It is not the judge's role to do the litigant's job.

The responsibility for framing the issues, obtaining and presenting the evidence, researching and arguing the law, that is all on the parties. That is their job. When they excel at it, they may prevail. When they excel at it, they may nonetheless not prevail as their opponent has better evidence, facts, law, or skills. It is possible to do everything perfectly as a litigator and still not prevail. That is the nature of trial.  

The wise Jenna Raine intones with great effect what we must remember:

"It is what it is, what it is, what it is, what it is

It is what it is, what it is, what it is, what it is"

She expounds:

"Hey! Lemons make lеmonade, Flowers bloom in the rain, Growing up is a pain, And it is what it is"

Yes, it is what it is. The parties do their best to try their case. I did not say that they do "the best," but "their best." They may excel or not. They may prevail or not. But that "is what it is." Maybe it is unfortunate that someone must prevail in any trial. The corollary is that someone will not prevail. There will be gain and loss. Some days will be better than others. But on no day is it the judge's job to fill in the gaps, ask the unasked, research the foregone, or abdicate the role of impartial arbiter. 

The role of advocate is necessary. The burdens associated with it are unavoidable. The stress is real and sometimes palpable. "And it is what it is." It is for lawyers and parties. Judges should stay in their role, remain impartial, forego asking questions, foreswear advocacy, and always remain true to deciding the case on the evidence in the record. If there are gaps to fill in, or questions unasked, leave that to others and their mastery of the great and vast expanse of Wikinonsense (copyright, 2023). 

Impartiality, decisiveness, thoroughness, and timeliness. All are worthy for judges. Advocacy, evidence gathering, internet surfing, Wikinonsense. None of those is appropriate. And as Ms. Raine says

"Just remember the words, And it goes like this

It is what it is, what it is, what it is, what it is"