Thursday, November 28, 2013


As we pause this week to celebrate the Thanksgiving Holiday, it is well to recall the Pilgrims who left England so that they might practice their religion without fear of persecution.  In 1620, the Church of England was the only recognized and permitted religion in England.  Some of the Pilgrims had emigrated to Holland, where they could practice their religion, but they had difficulty in finding suitable jobs to support themselves.  They ultimately returned to England and then set sail for the New World.

The Mayflower did not land where it was intended.  However, as it was late in the year, the Pilgrims decided to remain there.  They needed a new permission, or patent, to make it legal.  So, to provide for governance until the new patent arrived, the male passengers of the Mayflower signed an agreement, later named the Mayflower Compact, for their governance.

They agreed among themselves to “Covenant and Combine ourselves together in a Civil Body Politic, for our better ordering and preservation and furtherance of the ends aforesaid; and by virtue hereof to enact, constitute and frame such just and equal Laws, Ordinances, Acts, Constitutions and Offices from time to time, as shall be thought most meet and convenient for the general good of the Colony”.

It appears that the desire for self-determination in the new colony ran deep from the earliest settlers.

The Pilgrims maintained a good relationship with the Native Americans, who assisted them with food and advice as the settled in for their first winter.  The next year, 1621 the new settlers were blessed with an abundant harvest.  90 Native Americans joined with the Pilgrims for a three-day celebration of thanks.  In the 1800’s, this event became the basis for the story of the First Thanksgiving. 

In 1863, in the midst of the Civil War, President Lincoln declared a “National
day of Thanksgiving and Praise to our beneficent Father who dwelleth in the Heavens.”  In 1941, Congress passed a law establishing the fourth Thursday of November as the date for the Thanksgiving holiday.

I hope all of you will be able to gather with family or friends this holiday to celebrate and reflect on our many blessings.  We should all pause to give thanks for our good fortune to have been born, or to have come, to a country of opportunity and of laws that apply to all, regardless of race, creed, color, religion, national origin or sex. 

Happy Thanksgiving!

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Next week:  Dads and Drugs

Thursday, November 21, 2013

Expert Witnesses

In many trials, especially products liability lawsuits, expert witnesses are called to explain aspects of a case that a lay person (including the judge) may not understand.  Most often each side will hire its own expert.  Same facts, same circumstances, different opinions.

Surprised?  I guess we shouldn’t be.  Experts may charge very high fees to investigate, write a report and testify.  If an attorney is putting out that kind of money, it will happen only once if the opinion is not what the attorney is looking for.

When I was a practicing attorney, I had a small probate matter with a modest home that needed to be appraised in order to be sold.  I contacted a local realtor, who was more than happy to help.  “Tom,” he said, “I want you to know that I’m going to appraise this property fairly.  My only question to you is:  Do you want it fairly high or fairly low?”

I knew this realtor well, and I knew that he was kidding.  But one has to wonder about many of the experts. 

Plaintiff’s attorneys are often criticized for contingent fee arrangements.  That is, if the plaintiff loses the case, he owes no attorneys fees, but if plaintiff wins, he pays his attorney a percentage of the recovery – often 1/3.

This type of arrangement can result in big paydays for the plaintiff’s attorney as well as their client.  But, on the other hand, it is the only way people of limited financial means can afford to retain an experienced and respected trial attorney to handle his claim.

Expert witnesses, on the other hand, are paid no matter what.  Attorney retainer agreements will provide that, while the unsuccessful plaintiff will owe no fees if they lose, the expenses will remain the obligation of the client.  As a practical matter, if the client doesn’t have the ability to pay, the attorney may end up paying those costs.

I had a lengthy products liability case over which I presided involving a major automobile manufacturer.  Plaintiff called six expert witnesses.  The Defendant called four.  Just ONE of the Defendant’s witnesses’ firms had been paid over $4 million from 1995 to 2002 to testify in similar cases for Defendant!

I wish there would be more attention paid to the very high fees often paid to expert witnesses when discussing lawsuit abuse.  I also wish I were wise enough to figure out how the parties could get the expert evidence they needed without being incurring huge expenses in the process. 

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Next Week:  Thanksgiving

Thursday, November 14, 2013

Judge’s Courtroom Blessing

Most years, I take leave from judging, from extracurricular activities and even from my family to attend a silent retreat.  I started this tradition the year before I was appointed to the bench.  The retreat is this weekend. 

I normally leave on Thursday after work and drive to the Jesuit Retreat House on Lake Demontreville in Lake Elmo.  After supper on Thursday, the silence begins and lasts until supper on Sunday evening.  I find the opportunity to reflect, pray and consider the suggestions of our retreat leader a terrific opportunity to recharge my batteries and to get me to consider again what is truly important in this life.

I have written in a journal every year I have attended.  It’s about the only time during the year that I make an effort to write down what I’ve been thinking and doing.  It has been very interesting for me to go back to previous years to see what I’d been experiencing at the same point in the retreat.  Sometimes, I surprise myself.

One of those times was when I read a Judge’s Courtroom Blessing that I had written the year before.   

Some years before, I had heard an essay on Public Radio about a woman who was a light rail train operator.  She had said during the interview that before she boarded the train to begin her shift, she said a prayer of blessing for herself and all the people who would ride her train that day.

Wouldn’t it be neat to do the same thing for my courtroom as I started each day? 

Well, I usually forgot, because I never did it often enough for it to become a habit.

So, when I returned from the retreat after discovering the prayer I had written the year before, I had it printed, framed and hung outside the courtroom.  I still don’t remember to say the prayer every day, but it does give me cause to reflect when I do.

A Judge’s Courtroom Blessing

Bless this Courtroom and all those who will appear here today:
Give them safety. 
Give them courage.
Give them comfort. 
Give them Justice.
Bless all who will work here today:

Remind us all that the people who are brought to this place today
are Your children.

Send your Blessings, especially, on me as I judge: 
Give me patience. 
Give me understanding. 
Give me discernment. 
Give me eyes to see and ears to hear.
Remind me that I am Your servant, and that I am their servant.
Give me grace sufficient for the day. 

Inspire me to do Justice,
To love Kindness,
And to walk humbly with you, my God.

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Next week:  Expert Witnesses

Bonus Post: Douglas Amdahl’s Prayer

Douglas Amdahl was Chief Justice of the Minnesota Supreme Court when I was appointed a District Court Judge.  I think I only met him on one or two occasions, though I was privileged to preside at his Masonic Memorial Service on August 21, 2011.  His “Judge’s Prayer” is famous, and posted in many judicial chambers around the State.  I offer it here as an “extra”, as it was an inspiration to me to write A Judge’s Courtroom Blessing:
A Prayer

I pray that today I will have the knowledge to discover and the wisdom to clarify, the legal issues;

The ability to see, and the unbiased mind to recognize, the true facts;

The heart to know, and the gentleness to understand, the human problems;

And the patience and logic to reach, and the courage to declare, the just decision.

All these things, Lord, I ask that at the close of this day my conscience may truly say, 

“Today, you were worthy to be called ‘judge’.”

Thursday, November 7, 2013

Sorry Doesn't Make It Better

Just about everything that happens in Court involves some kind of consequences for acts that happened days, months or sometimes years before, outside of the courtroom.  It may be when one of the parties to a contract that has gone awry seeking damages or another person seeking damages because of a car accident or allegedly defective product.

For a judge, the decision of consequences comes up most often when we are called upon to impose penalties in a criminal sentencing hearing.  We are called upon to consider just about all aspects of the crime and the defendant’s situation.  A presentence investigation (PSI) is prepared by a probation officer to give the court a surprisingly detailed history of the Defendant, his or her family, education, work history and often chemical dependency or psychological evaluations.  The PSI will often give the agent’s recommendations as to what would be an appropriate sentence.

Even with the recommendations and all the information provided, there is still a large amount of discretion that judges have in pronouncing sentence.  If a person convicted of a felony does not go to prison, for instance, how much, if any, jail time ought he or she serve?  Is there restitution (money to be paid to the victim of a crime) and if so, how much?  What should the fine be?  Is treatment for alcohol or drugs necessary?  Should the defendant be required to attend Alcoholics Anonymous or Narcotics Anonymous? 

Having read the presentence investigation and the various reports, I am ready to conduct the sentencing hearing.  I will first ask if the defendant has any corrections to the PSI that I should know about.  I will then hear from the prosecuting attorney, sometimes from the victim, the defendant’s attorney and the defendant.

It is then my turn to speak. 

The goal is to fit the punishment to the crime.  Sometimes, the defendant and his or her attorney will say that the defendant has been punished sufficiently already.  They have apologized and truly feel bad and remorseful for what they have done.  Sometimes, they are right.

But sometimes, I recall growing up, the oldest of eight children.  There were lots of apologies offered in the McCarthy household back then, for slights small and large.  If the apology did not fit the misdeed, Mother would remind us that “Sorry doesn’t make it better.”  There was a hurt and it requires a consequence. 

So, I start to speak and do my best to do justice and make the punishment fit the crime.

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Next Week:  A Judge’s Courtroom Blessing