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Bench and Bar: What Is Each Entitled To Expect From the Other? (PART I)

Part I: What is the Bar entitled to expect from our Bench?

Author: MURRAY I. WEINER

I have enjoyed this year's monthly Bar Association lunches. The food has been good, the location is great, and turn out by both the Bench and Bar has been high.  I am particularly pleased by the quality of the speakers that have taken time to visit with us over lunch.  There is no Bar lunch in June, and I have had time to reflect on some of what was said by our speakers.  In particular, I am interested in comments made to us by Judge Hoffman of the Denver District Court, and Judge Ebel of the Tenth Circuit Court of Appeals.  Their comments relate to the art of judging, why the judicial branch is so different from the other branches of government, and the duty of the Bar to speak out on behalf of the judiciary and judicial independence.

In discussing judicial activism, Judge Hoffman argued that it is the "process" not the "outcome" that is the province of judges and judging, and that judges must never substitute their view of what is "good" or "right" for that of the legislature: the branch of government in charge of policy making.  To emphasize his point, Judge Hoffman spoke of attending a judicial conference where he had lunch with a newly appointed trial judge.  The new judge told Judge Hoffman that after a few weeks on the bench she felt like she had "finally done some good."  The Judge was displeased by this statement since, in his opinion, such judgments or actions are or should be outside the judicial role or function.

Judge Ebel gave a scholarly talk about the "Separation of Powers," the topic the American Bar Association suggested for Law Day.  In the course of his speech Judge Ebel suggested that the public improperly perceives the judiciary as just another political branch of government.  Judge Ebel coupled this observation with a plea to the Bar to speak out and defend the judiciary from attack.

In large part I agree with the comments of both Judge Hoffman and Judge Ebel.  I trust our judges to call balls and strikes.  However, like Judge Hoffman, I am not particularly comfortable when judges substitute their view of "good" or "right" for the view expressed by the legislature in its statutes, or when a judge decides to do what he or she thinks is "best" regardless of the law or the provisions of the contract between the parties.

A judge, like an umpire in a baseball game, must focus not on winning or losing but on application of the rules or statutes to the game or case.  When we say that an umpire or official has "called a good game," we mean that he or she faithfully applied the rules.  We imply nothing about who won or lost.  In fact, implicit in this statement is praise to the official for not favoring one side or the other.

The same is true in the law.  While a judge who applies that law as written may be criticized for being heartless on the one-hand, or overly generous on the other, in actuality he or she cannot be faulted for doing anything other than applying the policies and political judgments codified by the legislature.

At the same time, I recognize the need now more than ever, to protect our bench from unwarranted and meritless criticism, or worst of all, unthinking attacks.  As Judge Ebel explained, because the bench may not speak out in response to its critics, members of the Bar are obligated to defend our judges, protect their independence and explain to the public what makes the judiciary different from the other two branches of government.

The comments of Judges Hoffman and Ebel lead me to ask myself two questions: (1) What is the Bar entitled to expect from our Bench? and (2) What should the Bench expect from our Bar?  I attempt to answer the first question in this article.  The second will be the subject of my July article.

What is the Bar entitled to expect from our Bench?

What follows is my list in rough order of importance to me of what I believe the Bar can and should expect from our Bench.  By undertaking this exercise, I do not intend to imply that anyone on our Bench is not doing the things listed below or not doing them well.  I survived writing two articles which suggested making modest changes to how we handle civil matters, and I suspect I can survive writing about (not criticizing) our judiciary.  If it is any consolation to my colleagues on the Bench, they should know that my preliminary list of expectations for next month’s article is longer than what is set forth below.

Members of our Bar expect the following from our Bench:

  1. The Court will follow the law. First and foremost, it is the expectation of the Bar that decisions made by the Judges of our Court will be grounded in law.  The law will not be bent or swayed to achieve an outcome, but instead will be followed as written or as stated by a higher court.  The Bench has a right to expect that lawyers appearing in our Court will not "wing-it," and the Bar and our clients are entitled to the same expectation from the Bench.  "Gut-feel" does not constitute proper advocacy, and decisions made without support in the law are equally unacceptable.  Judges who follow the law are predictable, and they allow us to give our clients advice upon which they can rely in deciding how to proceed with their cases.
  2. The Court will show respect to those who appear before it. When lawyers appear in Court, we are doing our job.  This is our profession.  We are entitled to respect from the Bench until and unless we prove we are not entitled to it.  Do not fault us for not agreeing with our opponent's factual or legal position.  We represent clients in an adversarial system.  We know that if we take or argue positions that are not well-founded we risk losing the respect to which we believe we are entitled.  Lawyers know when they are taking positions which reach beyond where they should go, and the Court is well within its rights to call them on it or take other appropriate action.  Clients too are entitled to respect.  They have put their faith in the legal system for resolution of their dispute, or been thrust into it.  In either case, the matter is about them or their conduct, and they need to feel that they will be fairly heard by the Court and our system.
  3. The Court will decide the case or matter. It is hard to decide cases, issues or questions that come before the Court.  Nevertheless, decisions must be made and our clients are entitled to a decision.  Moreover, our clients deserve and are entitled to a decision by the Court, not one of the parties – unless the Court makes its decision and directs a party to prepare an order as set forth in the rules.  Finally, judges are not mediators or arbiters, and the expectation of the Bar is that judges will not assume these roles in our cases.
  4. The Court will provide the basis or rationale for its rulings. Decisions issued by the Court must be clear to both the lawyers handling the case and their clients.  Unless it is self-explanatory, a decision which does not include a basis or rationale is difficult to understand and even more difficult to explain to clients.  Our Court is overburdened and under significant time pressures.  Regardless, it is necessary and required that the Court provide its rationale or basis for its rulings.  Without it there is no way to know if the Court is following the law.  Additionally, the Court's failure to provide a basis or rationale for its rulings serves to further lower the esteem in which the public holds our legal system -- a topic touched upon by Judge Ebel in his Law Day address.
  5. The Court will not substitute its views on factual matters for those agreed to by the parties. Last year I was appointed to be a Special Master to implement a complicated settlement agreement between family members fighting over a Colorado Springs business.  Among the terms in the parties’ written settlement agreement was that a family member in Florida who did not work in the business would be provided with a car by the company.   I thought the provision was stupid.  I asked the parties how much they believed it would cost to lease a car for the Florida family member and, in my recommendation to the Court, I substituted this sum for the requirement that the business provide the Florida relative with a car.  My other recommendations were adopted by the Court.  This one, however, was not.  In its Order the Court noted that neither the Court nor the Special Master had the power or authority to rewrite the parties' settlement agreement (contract), even if my recommendation was less cumbersome and easier to implement than that agreed to by the parties.  In short, the parties' expect unambiguous agreements they enter into to be enforced as written, and the expectation of the Bar is that our Court will not do what I did and rewrite agreements made between the parties.
  6. The Court will enforce the rules. Lawyers expect to follow the rules and for the most part do so.  Lawyers are not judges, however, and they cannot make their opponent do what he or she is not doing.  Telling the parties to work it out only goes so far.  Where difficulties arise between the parties regarding the rules, the expectation is that the dispute will be resolved by the Court.
  7. The Court will be willing to reconsider its decisions or rulings if proven wrong. Before he got elevated to the Tenth Circuit Court of Appeals, the District Judge I clerked for referred to the Court of Appeals as "the Court of second conjecture."  The point is that no one has a corner on being right.  This process is too expensive and time consuming for intelligent people (I include lawyers and judges in this category) to refuse to reconsider their decisions when they are provided with a sound legal or factual basis for reconsideration.  Of course, the Court has the right to expect that reconsideration motions will be filed only in situations where there is a valid legal or factual basis for reconsideration.
  8. The Court will use its best efforts to make the process less costly. Large segments of our society cannot afford to have their disputes resolved by our Courts, and for the rest, the cost of litigation is a financial burden.  The high cost of litigation, in part, adds to the negative public perception of both lawyers and our Courts.  How our Courts handle cases directly affects the cost of litigation.  It is the expectation of our Bar that the Bench will remain mindful of the cost of litigating disputes and that in performing the judicial function, our Bench will use its best efforts to reduce or minimize the costs incurred by the parties.

Those are my thoughts.  Hopefully I have not offended too many people.  My list may overstate what the Bar expects from the Bench; on the other hand, it may not.  I encourage feedback from both the Bench and Bar and have been assured that we have room in The Pikes Peak Lawyer to print letters or responses to anything I have said in this article.

Next month I will attempt to answer the question:  What should the Bench expect from our Bar?


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Mulliken Weiner Berg & Jolivet P.C.
102 South Tejon Street, Suite 900
Colorado Springs, Colorado, 80903 USA
719.635.8750