Wednesday, March 27, 2013

How May I Serve You?

I have always considered it a privilege and an honor to serve as a trial court judge.  One of my colleagues told of an appearance he made as a young attorney before a very, very busy judge.  He hung back in the courtroom at the end of a long day, not wanting to add to the judge’s workload, but needing an Order signed.

Shortly, the judge looked up, saw the young attorney and asked, “Counsel, how may I serve you?”

When I heard that story, I decided that was the kind of judge I wanted to be.  Too often, because of the deference routinely showed to judges, there is a temptation to forget that we are there to serve and to believe that it is we that should be served.  To remember that it is only by the suffrage of the people we serve that we are granted this special privilege to resolve the disputes placed before us is an absolute requirement for any person who is given the authority to make the decisions that can literally alter another’s life.

It took me many years to decide to routinely ask attorneys and litigants, “How may I serve you?”  At first, it was very uncomfortable for me to ask, almost as if I were giving up some of my authority.  This was especially true when there were many people in the courtroom, waiting their turn.

It didn’t take too long, however, before the question became second nature.  It reminds me, every time I ask it, that I am truly there to serve the people who appear before me.  It is not MY courtroom.  It is not MY schedule that is important.  It is whether I have actually heard the people appearing before me.  It is whether I have considered the arguments and correctly applied the law.  It is, in the end, whether I have done Justice.

Albert Einstein is quoted as saying that “Only a life lived in service to others is worth living.”  Sounds right to me.  I have been truly blessed to have been able to be in a profession that has enabled me to support my family and serve our citizens. 

I wish I could say that every case I have handled has given me that satisfaction of a citizen well-served.  I do my best, and more often than not, feel I have done my best. 

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Next week:  Just Another Day at the Office

Courtroom Decorum

It is a hot summer day.  I look out over the Courtroom from the bench and see several pairs of shorts, t-shirts (some sleeveless) and a couple of baseball caps.  Another day in court in the summer.  Another decision for me:  How much of a deal do I make of not dressing properly for Court? 

As a judge, I have an obligation to enforce decorum (behavior in keeping with good taste and propriety) in the courtroom.  We do serious work in that room, and I have a duty to maintain order so that people know that important work and often critical decisions happen here.  This covers not only what people may not do in courtrooms (chew gum, sip on drinks, read a newspaper or book, talk), but also what they wear. 

Judges may have different styles for maintaining order in the courtroom.  Some judges have a very informal style in the courtroom.  That approach 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 as their personal fiefdom.  This style can intimidate and even frighten people not used to being in this place.  They may become so intimidated that they cannot even talk. 

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 some domestic abuse cases or marriage dissolutions, the judge must show compassion and also a resolution to follow the rules of law.  It is often hard to maintain patience and courtesy while explaining what a person wants just won’t happen, because the law requires the judge to do otherwise.  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.  I will sometimes repeat back what I think I heard to be sure it is what the person meant to say.  By balancing the discipline to maintain proper decorum and the consideration to encourage the free flow of information, a judge can do the best job possible. 

That’s my goal, every day on the job. 

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Next week:  How May I Serve You?

Thursday, March 21, 2013

Black Robe Disease

There are very few moments in my professional life that can top the day that my wife helped me put on the judge’s robe for the first time.  Family, friends and colleagues were there to witness and congratulate me on assuming the bench.

The next memorable professional moment was the first time I walked into the Courtroom and the bailiff announced, “All rise, the District Court for Sibley County is now in session, the Honorable Thomas McCarthy presiding.”  Wow!  Standing up when I come into the courtroom!

It’s all pretty heady stuff.  And it all too easily can go to one’s head.  It’s the rare and brave attorney who will call to my attention something that I do that offends or bothers them.  It’s “Yes, Judge.” “We’ll do that Judge.” “Whatever you say, Judge.”

All of us who put on the robe let it go to our heads from time to time.  Some let it go to their heads more.  It’s what we call “Black Robe Disease”:  The affliction that can lead a judge to believe that he is more important/smarter/wiser than ordinary human beings. 

So, what is the antidote for this debilitating condition?  Well, having a no-nonsense spouse who still makes you pick up your socks and make the bed if you’re the last one up does help.  So does community service work, like walking a road ditch with the Lions Club to pick up trash.   A little reflection and prayer helps to keep a judge humble, too.

I recall one time a bailiff told me about the “word on the street” about a decision I had made.  I became upset, and told him I had made the right decision with the information I had at the time.  After the bailiff left the office, I realized the mistake I had made – NOT the decision that he told me about, but becoming upset that he told me about it.  I realized that this was the rarest of gifts – an honest, private critique of a decision I had made.  So, I found the bailiff (who was a good friend of mine, as well as a co-worker) and apologized.  I asked him to keep on telling me if he thought I messed up.  He did, in a respectful manner that I know made me a better judge.

Every judge needs to develop strategies to get honest feedback, and cure that dreaded Black Robe Disease.

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Next week:  Courtroom Decorum

Thursday, March 14, 2013

First Day on the Bench

After the first couple of weeks following my appointment to the bench shadowing experienced judges and soaking up as much of their knowledge as I could, I was assigned to a criminal calendar in Scott County. 

For the first time, I walked into the courtroom and the bailiff cried, “All rise!  Scott County District Court is called to order, the Honorable Thomas G McCarthy presiding.”

Wow, people are standing as I come into the room!  Pretty heady stuff, but I realize that it is the position of judge, not Tom McCarthy, to which is the respect is shown. 

The butterflies are doing acrobatics in my stomach as the attorneys present their cases.  The first two are routine, with agreements among the lawyers.  The third one, however, has no agreement and I must make the call.

I think I know what to do, but am a little gun shy this first day.  I indicate that we’re going to take a short recess and I will announce my decision when I come back on the bench.  I head down the hall to Judge Young’s chambers, explain the situation to him and tell him how I thought I should proceed.  “You know what to do,” said the judge in a matter of fact manner.  “Just trust your instincts.”

So I returned to the courtroom, announced my decision and tried to contain my surprise when no one argued with me about it.  Hold on, I thought, I’m the one who has to make these calls and the attorneys will pretty much accept them, unless I’m way out of line.  Judges are supposed to listen carefully to the arguments, weigh the merits and decide.  If there were continuing arguments over every decision a judge makes, no case would ever be finished!  The wheels of Justice turn slowly, but grind exceedingly fine, goes the old saying.  If a judge’s decision was not final, the wheels of Justice likely would stop.

OK, lesson learned.  After that hearing, the rest of the day passed uneventfully. 

And now, a quarter century later, I try to remind myself to pause as I enter the courtroom, recall the thrill and fear of that first day in court, and remind myself again of the awesome honor and privilege that has been invested me to serve the people of this State during some of the most important events in their lives.

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Next week:  Black Robe Disease

Thursday, March 7, 2013


I have a quote from Supreme Court Justice Thurgood Marshall on my bulletin board at work that says, “None of us has gotten where we are by pulling ourselves up by our bootstraps.  We got here because somebody bent down and helped us.”

As I reflect on the people in my profession that have bent down and helped me, I realize that I am truly standing on their shoulders. 

Everett Young was my first law partner and my mentor.  He didn’t so much lecture as taught by example, whether it was dealing with a difficult legal issue or dealing with a difficult client.  He taught me patience, which has come in very handy in the position I have now!

Kenneth W. Bull was the presiding Sibley County Court Judge through all my years practicing law.  In fact, Judge Bull saw me as a teenager when I drove my father’s car a wee bit too fast one night!  Judge Bull taught me many lessons that I have applied during my years presiding in Court.  The most important, I think, was that people – lawyers and their clients – have a right to know how the judge arrives at his decision.  Judge Bull almost always included a Memorandum to his orders that explained how and why he reached the decision he did.  I did not always agree with the decisions he made (just as at least half of the folks who appear before me disagree with my decisions), but I always appreciated knowing the thought process that went into the final decision.

When a judge takes office in Minnesota, there are a couple of weeks that he or she shadows a sitting judge, just to get a feel for the job.  There were two judges that I shadowed that gave me advice that has survived the decades I have been on the bench.  John Fitzgerald was a crusty Irishman, who attempted to hide his heart of gold behind a veneer of grouchiness.  When a Defendant deserved to go to jail, Judge Fitzgerald sent him to jail.  If second chance was in order, the Defendant got that, along with a lecture from the judge that encouraged him never to come back in trouble again!

The other was Judge Michael Young, who showed me how to take a guilty plea so that all the rights were respected and all the necessary facts were placed on the record, but done so in the least amount of time necessary.  Not all his cases went quickly – if a litigant or a lawyer needed more time to make his case, Judge Young made sure it was available.  But no time was wasted in his courtroom!  Since the caseloads per judge have only increased since my early days on the bench, this advice and example has served me, and the people who appear before me, well.  

The most often heeded advice I received when appointed to the bench, from many colleagues was  this:  Always use the rest room before getting on the bench.  You never know how long those lawyers are going to talk!

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Next Week:  First Day on the Bench