Thursday, November 6, 2014

Good Luck in Court!

95 weeks ago, I published my first reflection on becoming a district judge.  It has been a real privilege and pleasure sharing with you some of the experiences I’ve had sitting on the bench.  This week, Judge Looby begins his tenure as the District Judge with his chambers in Sibley County.  Except possibly for those rare occasions when he or another sitting judge simply is not able to preside in Gaylord and I’m called to help out, my work there is done.

I feel this is an appropriate time to conclude these weekly pieces on my experiences as a trial court judge.  I’ve tried to give you a different look at the business of judging.  Reading these pieces, it’s clear that it’s not always, or even usually, a sterilized review of the facts and application of the law.  More often than not, it’s an imprecise process – as much an art as a science.

I want to thank those of you who have emailed of talked to me about these musings.  I also want to thank the Winthrop News for publishing these short essays under the heading “A View from the Bench”. 

At this point, I sometimes ponder what my legacy will be.  I suspect that some who have appeared before me will say that I am the wisest, most patient and just judge since Solomon.  Others will be convinced that I am the most uninformed judge ever to have donned the black robe.  There is no doubt that my decisions have affected hundreds of lives over the course of my career.   I have tried my best and can live with my decisions, even those in retrospect I have discovered were not the best decision I could have made.

Now, it’s time for new tasks and new projects.  I’m looking forward to it!

But who knows, perhaps I’ll miss setting down my thoughts weekly and will start a new series of essays.  Maybe I’ll write some reflections on being retired.  Perhaps the News will publish these as “A View from the (Park) Bench”!

*  *  *  *  *
I couldn’t fine a spot for this actual text message conversation I had a few years ago, so I’m going to drop it in here.  I do have a friend in Forest Lake, and thought it was from him: 

Sender:            Are you in Forest Lake? I thought I saw you drive by but not sure.
Me:                  Nope.  In Court.
Sender:            What did you do?
Me:                  :-)  who is this?
Sender:            Sorry wrong #.  Good luck in court.

*  *  *  *  *

PS:  For those of you who have asked and those who may be curious, I finally did get that porch painted! 

Thursday, October 30, 2014

The Longest Trial

Jury trials can be some of the most interesting work a judge does.  Instead of making the decision myself after hearing the evidence presented, a panel of six to 12 jurors is impaneled to assist in finding the facts and rendering a verdict. 

I was surprised to realize that most jury trials last two days or less.  I had always thought that a matter serious enough to required the assistance of citizen jurors would take longer than that – not as long as the O.J. Simpson trial (televised to the nation for several weeks), but longer than 48 hours!

I have had a few jury trials that lasted more than a week.  The longest trial over which I presided lasted 21 trial days, spread out over 7 weeks to accommodate attorney and witness schedules and the Christmas holidays.  It involved a man who was involved in a car accident and was a paraplegic as the result.  He was suing the car manufacturer, claiming the car was unsafe and that was a cause of his injuries.

Six lawyers were involved in the trial – three for the injured man and three for the car company.  There were expert witnesses, hundreds of exhibits and videotaped testimony that was played for the jury.  Our technology courtroom was put to good use during that trial!  I believe it would have taken two or three more days, at least, to have conducted that trial without the available technology.

It was interesting to see the very different dynamics that developed over the course of the trial.  The attorneys stayed in local hotels or bed and breakfasts.  It was a small town, so they and the parties would run into each other at lunchtime or after the court adjourned.  I had to be very careful to continue to remind the jury about their duty not to talk to anyone about the case and not to do any investigating (like visiting the scene of the accident or going online to research car safety) throughout the trial to be sure there would not be a mistrial.    

After 21 days of testimony and many hours of deliberation, the jury returned its verdict.  It was only then that we all realized that one of the jurors was on felony probation!  Despite being asked in writing when he was summoned for jury duty and in the questioning under oath during jury selection, he had failed to mention this critical fact.

So, I had to vacate the jury verdict and set the matter on again for trial.  The parties were able to settle the case before the trial date came around, so I did not have a repeat of the longest trial over which I had presided.

Thursday, October 23, 2014

Small Claims Court

Some of the most challenging cases for a trial judge happen in conciliation court, or small claims court.  When I first took the bench in 1988, the maximum amount that could be claimed in conciliation court was something like $1000.  Now, it is $15,000!  Small claims, indeed!

These cases can involve very complicated issues of law and of fact.  Since lawyers generally are not allowed to appear in conciliation court, the litigants may not understand what evidence is required to be presented to succeed.  For instance, simply because that used car that was purchased has a major problem with the engine or transmission after only 200 miles is usually not enough to prove that it was defective when sold.  Some kind of expert testimony may be required.

Also, folks often do not have a realistic idea of how much they have been damaged.  One claimant alleged that his neighbor had cut down a dead tree that was on the claimant’s property.  He computed his damages based on the amount one would pay for a bag of firewood at the local convenience store.  That is far, far more than proper measure of damages for the tree, which would be its value as it stood on the claimant’s land.  (The claimant lost this case on other grounds, in any event.)

In many conciliation court cases, the defendant does not even appear.  In those cases, the plaintiff wins by default.  I recall one case where the Girl Scouts of America were suing a mother of a scout who had received over $1000 in Girl Scout cookies and had not paid for them.  I really wish the mom had appeared – I wonder what the other side of that story was!

I am sometimes asked what I think of the television judges, like Judge Judy.  I must confess, I have tried to watch that show, but usually end up turning it off after only a few minutes.  If I treated people as rudely as that judge does on television, I would rightly be reported to the judges’ ethics board.  I also worry that people may hesitate to bring a legitimate claim because they fear being ridiculed by the judge. 

Because for those people, it is not just an entertaining television show or another day at the office for the judge.  It is a very important day in their lives, and they deserve to have their claims considered with the respect and dignity to which they are entitled.

Thursday, October 16, 2014

15 Minutes of Fame

Back in the 1960’s, an artist names Andy Warhol is supposed to have said, “In the future, everyone will be world-famous for 15 minutes".  I came across that quote recently and it made me think not of people who seek the public limelight, but of the people that have come into my life “for 15 minutes” over the years.

Some are literally only 15 minutes.  Some are a part of my life for 15 days or 15 weeks or 15 months.  In every case, I have made one or more decisions that have always had an immediate and often a long term impact of the person’s life.

And then, they are out of my life.  Notwithstanding the fact that I have made what might be a life-altering decision, once their case is concluded, I really have no way of knowing what has happened to them.

The one case that has stuck with me for the longest time, as I heard it early in my judicial career, involved a dispute between the parents of a young girl.  Mother claimed that Father had sexually abused the child during a visit.  The case took several days to try. 

For the first couple of days, it appeared to me that, for the first time in my judicial career, I had a case where Mother falsely accused Father of a horrific act.  Then, on about the third day of testimony, the child’s social worker testified about her first visit with the child concerning the abuse.  Not for the first, or the last time in my judicial career, I found that my first impression was wrong.  I concluded that Father had abused the child, and ordered that he not have any visits with the little girl until he had completed sex offender treatment.

His response:  I can’t do sex offender treatment, because I haven’t abused my daughter.

Given the same set of facts, I would make the same decision today.   Yet, I wonder if that Dad ever saw his daughter again.  I did the best I could with what I had, but there is no 100% guarantee that the decision was the correct. 

Did that veteran stay sober after treatment?  Did that young woman safely get through her tour of duty with the Marines?  Did the children ever reconcile after the probate dispute?  Did the child injured in an auto accident wisely invest the insurance proceeds or blow it when he turned 18?

I will probably never know.  It’s the nature of my job, and the nature of life.

Thursday, October 9, 2014

Terminating Parental Rights

Some of the most emotional cases in the courtroom happen when parents give up their rights to parent their children.  This can happen in different situations:  A teenage mother, for instance, realizes she can’t raise the child and places it for adoptions.

Most of the hard cases, however, come at the end of a child protection proceeding. 

Sometimes, when I expected tears and a very emotional hearing, I am (unpleasantly) surprised.  In one case, Mother agreed to terminate her parental rights, as she was in prison.  The law requires that a parent sign the voluntary termination of parental rights document in the presence of a judge.  As I was going through Shakopee that week, I offered to stop by the Women’s Correctional Facility there to witness her signature. 

I arrived at the prison, went through the metal detector and emptied my pockets and briefcase for inspection.  I was escorted into a small conference room just the other side of the solid steel door that clanked and locked behind me.  Mother soon came into the room.

I started to say something about what a hard and difficult decision this was, when the mother interrupted me.  Could we please get this over with?  She didn’t want to be late for supper.

I guess not every woman has those strong maternal instincts. 

On the other hand, I recall a case where the parents were addicted to methamphetamine.  That is a terrible affliction and quite difficult to overcome.  After unsuccessful attempts at treatment – and another arrest for possession of the drug – the parents realized that it was in their child’s best interest to be raised by someone else.  One of the grandparents stepped forward and offered to care for the child.  The parents agreed to give sole legal and physical custody of the child to Grandma.  (In that case, the parents’ rights were not terminated.)

There were lots of tears at the hearing, and the parents acknowledged that they let their child down.  At the end of the hearing, because the parents’ rights were not terminated and Grandma would be raising the child, I was able to tell the parents that one chapter in the story had closed, but the book was not finished.  They still had the opportunity to sober up and proved themselves.  While they likely would never parent the child, they could be a part of their child’s life.

It was up to them.

Actually, it’s always up to them.  Judges don’t terminate parental rights – the parents do.  Judges only sign the paperwork that makes it official. 

Wednesday, October 1, 2014

John Hancock

You may remember from your grade school American History class that John Hancock was the first person to sign the American Declaration of Independence.  His signature was big and bold, and he reputedly stated that King George would not have to put on his spectacles to read it!

Over time, “John Hancock” has become a synonym for signature.

Of all the professions, doctors are supposed to have the worst handwriting.  I have compared my signature to that of my younger brother, Dr. Mike.  Dr. Mike’s signature has always been more legible than mine…..

Judges are as notorious for poor handwriting as doctors.  Periodically, our district office will collect copies of all of the judges’ signatures, with their names printed alongside, and distribute them through the system so, for instance, officers who are executing a search warrant can actually know who the judge was who signed the warrant! 

I’ve produced many a John Hancock in my career as judge.  Recently, I kept track and found that I’d affixed my name to 40 different legal documents in one day!  A conservative estimate would be that, in my 26 year career as a judge, I have signed well over 100,000 orders, on file permanently in the District Court. 

The happiest orders I have signed make new families:  adoptions are by far the most joyful work a judge can do.  Marriage certificates are other happy orders.  But, there have been sad orders, too:  committing a person to prison or a mental institution or signing the final divorce decree.

I have signed sentencing orders on probably thousands of criminal cases.  These may go from assessing a fine for a traffic ticket to sentencing a person to the county jail for domestic abuse to sentencing a young man to prison for life for committing murder.  That was sobering.

It’s a cliché that the job is not over until the paperwork is done.  The divorce is not final, the adoption is not approved, the will is not admitted to probate and the marriage is not recognized until a judge affixes his or her signature. 

I recall Twins players telling how they were lectured by Harmon Killebrew to sign autographs so that people could tell whose signature it was.  Sometimes, when I have a stack of a couple dozen orders to sign, I’ll remember Mr. Killebrew’s advice, slow down and try to be more careful with my signature – after all, it will be in the court records forever.  But even when I do, it’s barely more legible.

And after all, there are people waiting for me to get back in the courtroom. 

Thursday, September 25, 2014

Judicial Demeanor

Judges are required to comply with the Code of Judicial Conduct.  These are mainly common-sense rules to protect the dignity of the Court and the judicial process and to set forth the ethical rules the judge must obey.

One of the Canons in the Code requires that a judge maintain “order and decorum in proceedings before the court”.

As a judge, especially one who has served for many years, there is an issue that we may become so accustomed to presiding over the many and various cases that come before us that we consider the “All rise!” a call to just another day at the office.  To the people who appear before us, however, it very well may be the most important day of their lives.  This is true no matter how trivial or unimportant the matter may seem to the judge. 

As a judge, I have an obligation to enforce discipline in the courtroom.  We do serious work in that room, and I have a duty to maintain the decorum that lets people know that serious work and important decisions happen here.

I have observed a few judges who have a very informal, conversational style in the courtroom.  That method seems to work for them, but I think that being too informal depreciates the dignity of the Court.

On the other hand, I have observed judges that rule their courtrooms most strictly.  People appearing in those circumstances are often cowed into silence, just by the judge’s attitude.

So we walk the fine line of maintaining order and decorum on the one hand, while attempting to put the litigants enough at ease that they can tell their story.  Sometimes, it is a difficult matter.  When emotions run high, as in domestic cases or marriage dissolutions, it puts pressure on the judge.  When a person representing himself just doesn’t understand, it is hard to maintain patience and courtesy while explaining what he wants just won’t happen.  These situations can be even more difficult if the person does not speak English and the conversation goes through a certified interpreter.

The most important thing for folks coming to court is to be assured that they have been heard.  By balancing the discipline to maintain proper decorum and the relaxed attitude to encourage the free flow of information, a judge can do the best job possible. 
As the comment to the Rule of Decorum states “Judges can be efficient and businesslike while being patient and deliberate.”