I was over in the Resident vs. Attending physician thread, and was prompted to ask a question I’ve long wondered about.
Many lawyers aspire to be judges, and most judges are lawyers. It seems to me that these are two distinct occupations, so why aren’t they treated as such. Wouldn’t a judge be better suited for his/her job if trained as a judge, and he/she worked on up through the system? Can an ex prosecuter or defense attorney always be truly impartial?
Just a thought.
Peace,
mangeorge
I only know two things;
I know what I need to know
And
I know what I want to know
Mangeorge, 2000
well, I’ve appeared as the Crown before judges who were formerly Crown counsel, and I’ve never got a free ride; sometimes quite a rough ride, depending on the Crown’s case. So yes, I think a judge can leave behind the former occupation and be impartial.
Bear in mind that lawyers are trained to argue a case. Personal beliefs come into it, just like any other activity, but the training emphasises objectivity. Also, lawyers may be Crowns at one time in their career, and defence counsel at other times, so a particular lawyer may come to the bench with a variety of experience.
Note that in the Continental civil law system, people do go to judge school and apply to be a judge, then work their way up the judicial ladder. The common law tradition is quite different - the judges are drawn from the practising bar, after years of experience as a lawyer.
jti, I know little about american law, and even less about canadian law. Are they that similar? What’s a crown? Is there a site where I can learn the simple basics of the canadian legal system?
I guess I should have specefied american law.
Peace,
mangeorge
for “Crown” read “District Attorney” - the Crown Counsel is the lawyer acting for the Attorney General of the province (or of Canada, in a federal prosecution) to prosecute a case.
on this point, the Canadian and US systems are pretty similar, since they’re both descended from the English common law - young folk interested in the law train to become lawyers, get called to the bar, eventually may become a judge. The key point is that in the common law tradition, the upper ranks of the judiciary are drawn from the legal profession. (Justices of the peace and magistrates may not need to be lawyers, and I wouldn’t care to speculate on some of the US requirements for elected judges - we don’t have those up here.)
The civil law system on the Continent is different. Young folk go to law school, but at some point in the training they split, and some go on to judge school, some to notary school, and some to court-room lawyer school (say, in the fourth year of the program). The civil judicial culture is much different from the common law judicial culture, since you may find yourself in front of a judge literally just out of judge school, while in the common law tradition, a judge normally has considerable experience at the bar.
There are pros and cons for both systems, but one of the pros of the common law system is that by the time you’re in the mid-forties and have practised law for 15 or 20 years, you’re experienced and tend to be very independent-minded, which is, in our tradition, one of the key things you look for in a judge. (To put it less elegantly, if you’ve been slogging it out successfully in the courts for that long as a lawyer, you will have developed a good BS detector.)
I think mangeorge has an excellent point – I don’t know about the situation in England, but in the US, whatever jti claims about the objectivity of attorneys, the American attorney is notoriously for the American attorney. Of course, he is most notorious for his sui generosity (well, something like that ).
No lawyer is qualified to speak on the subject of a judge’s being impartial. Only a pro-per is in a position to provide competent testimony on that subject! Every last lawyer and everyone else will admit that judges, characteristically, hate pro-pers – at least those *pro pers[/] who are more straighforward and intelligent than people in the so-called legal business. And judges condemn pro-pers for not playing up to them as attorneys do. But American judges are just non-entrepreneurial lawyers. They couldn’t care less if all their decisions were overruled in courts above. . .as long as they have their own court in which to expose their ignorance of the law, to lie and to tell off whomever is before them.
In almost every state of the US, including CA, all judges are required to first be lawyers for a certain period of time.
And look at prosecutors: If a witness under oath tells a deliberate, material lie, (s)he may be charged with the crime of perjury, but prosecutors need not be under oath and can tell as many lies and as wicked lies as (s)he wish, and no matter whether a case be thrown out on appeal for such reason, (s)he does not even suffer a dirty look from anyone, whatever heinous damage his/her lies may have done to defendants or others before the court wherein they lied.
In the US, both lawyers and judges are mostly just a high-income occupation with very little or no ethics. . .because law supplants ethics, right?
Ray (Order in the court: Scrambled eggs and hash!)
Nanobyte… you have made a number of strong assertions here. What is your basis for them?
Why not? A lawyer can’t see evidence of partiality, or lack of it? Or did you mean in a technical sense – that a lawyer isn’t a competent witness as to a judge’s impartiality? Neither is true. A lawyer can certainly see and comment upon behavior just as well as the next person. And lawyers accuse judges of impartiality all the time; that forms the basis for many motions to recuse.
Just so people know what we’re talking about about – a pro-per or pro se litigant is someone who appears in his proper persona - that is, representing himself - rather than represented by a lawyer.
I don’t agree that judges hate pro se representation as a rule. What is your basis for that claim?
What judges do tend to dislike are those pro se litigants who do not understand rules of evidence or proper procedure in court, because their delays tend to slow the orderly administration of justice. If someone doesn’t know what they’re doing, and insists on representing himself, it’s generally a nightmare. And it’s worse when, following a conviction, that same defendent appeals based on ineffective assistance of counsel, alleging that the judge should never have let him represent himself!
But a litigant who knows the procedure, the rules, and acts accordingly … no, I don’t agree he’s the automatic object of “hate.”
And what does “playing up to them” (the judges) mean? A pro se litigant has the obligation to show deference to the judge, the same as a lawyer. Why is this wrong?
Judges, like all humans, are a mixed bag. But I have never met a judge that didn’t care about being reversed. I am willing to concede that some exist, because there’s room for everything. In any event, your blanket statement is clearly inaccurate: you don’t say “some,” or even “most,” but rather you imply “all.”
The vast majority of judges are not “ignorant” of the law. To the contrary, they use it every day, and they know it. Typically, a judge confronted by an area of the law, or an unfamiliar precedent, will ask the parties to brief the issue, and he’ll study what he doesn’t know before ruling.
Again: on what do you base these sweeping generalizations?
WHAT?
First of all, a prosecutor has very little opportunity to “tell lies.” He is not a witness. The witnesses called by the prosecution present the facts, and he argues to the fact-finder how they should interpret those facts.
Every ethical code for lawyers, for every state in this country, imposes a duty of “candor towards the tribunal.” In other words, a lawyer - prosecutor or otherwise - may not deliberately mislead the court. To do so will invoke much more than “dirty looks”; it can involve a visit from the disciplinary committee of the state bar, and a recommendation for discipline that can include private or public reprimands, suspension, or disbarment.
Now - it is true that prosecutors have a dual duty: to advocacy and to the truth. And in the heat of the moment, prosecutors may make improper arguments to a jury that will cause a case to be thrown out (either as a mistrial or on appeal.)
A classic instance of this would be a prosecutor commenting on the defendant’s post-arrest silence (“If he were truly innocent, ladies and gentlemen, why didn’t he say that to the officer?”) Such commentary is wrong, and is grounds for reversal. It happens; prosecutors, too, are human. But it is not part of an invidious scheme of evil lawyers for the state.
Um… no.
Lawyers have a highly detailed code of ethical conduct they must follow.
In short, Nanobyte, I contend you have made some grossly exaggerated, demonstratably false, and malicious claims against an entire profession.
That hardly strikes me as ethical.
Rick
Ray (Order in the court: Scrambled eggs and hash!)**
[/QUOTE]
First of all, I would strongly disagree that most lawyers want to be judges. Realize that there are many types of lawyers, many of which never go near a courtroom. Most tax lawyers, corporate lawyers, real estate lawyers, etc. would have little or no interest in becoming a judge, nor would they have the experience to be effective as one. In addition, Judges, as civil servants, have relatively low salaries compared to what they could make in practice. Indeed, some of the biggest law firms are now paying associates in the first year out of law school more than the salary of most judges.
In the U.S., most judges that serve on higher level courts have started out in lower level courts. For instance, here in New York we have a number of inferior or specialized courts (Family Courts, City Courts, County Courts, District Courts, Surrogate’s Court, etc.), one trial court of general jurisdiction, which we call the Supreme Court (in most states this would be called the Superior Court, but for historic reasons, our lowest level general court is called Supreme), one intermediate appellate court, called the Appellate Division (properly the Appellate Division of the Supreme Court), and our highest court, the Court of Appeals (equivalent to the Supreme Court of most states). Anyway, most New York Supreme Court judges have served on an inferior court. All Appellate Division judges have served as Supreme Court judges, and most Court of Appeals judges have served in the Appellate Division.
Beyond this, as lawyers we are trained to apply the law. Most lawyers trying cases understand both sides of the arguments that are being made, and as judges are able to be impartial.
Like it or not, we operate in an adversarial legal system. That means that (barring odd situations like child custody placements) every case coming to court has two sides with an advocate for each, to wit:
“My client is a peacable, moral individual who was screwed out of his life savings by the profit-hungry monolithic corporation against whom this suit is filed.”
vs.
“My company is an ethical firm doing business through clearly written contracts which the plaintiff should have read and reviewed with his lawyer before signing. He is out to obtain damages from us unfairly because his rosy speculations did not come to fruition, and as a result he lost his shirt trying to sell our product, which he agreed to buy at a fair price, in a place and time where it was not vendable.”
“The defendant is scum of the earth, and should be locked away for the maximum permissible sentence for his heinous crimes.”
vs.
“My client is a decent person whose only offense was being in the wrong place at the wrong time and/or exercising poor judgment, and which of us has not done that at one time or another?”
After years of taking one of these stances, or maybe all of them at one time or another, a lawyer gets pretty clear on what the truth of the situation is, whether or not he’s being paid to find it. That’s when he becomes a good person to choose as judge.
In my experience (working with small rural courts, among other things), non-lawyer Justices of the Peace by and large do the absolute best job they can of understanding the law and applying it impartially to ensure that justice is done – there are egregious exceptions, but that’s a generality – but judges who are members of the bar are one up on this from having had all that practical experience at truth vs. fiction, as well as knowing the law (and being able to read with clarity any part they do not know already).
Like any profession, there are people who are devoted to what they do and people who are in it for money or prestige or for ego-enhancement. Time and human judgment do a good job of keeping the former and getting rid of the latter.
Perhaps it’s not, but it’s a common sentiment, and not entirely without cause.
Law has gotten so complex that it’s almost impossible for someone to practice it without extensive university training in the specific section of law that they want to practice.
When the law gets so complex that ignorance of the law is inevitable, yet still not an excuse (except in some rare cases), it’s hard not to feel that the profession that ends up being responsible for that bloat.
And there are a LOT of completely unethical actions by lawyers. Follow the etoy vs etoys controversy? Some lawyer had to decide to that suing a bunch of artists in another country who held a name longer, for trademark violation, when they weren’t in business, let alone competition, was a good thing. How could you possibly call that ethical? Some judge recently granted the MPAA an injunction against many (500?) publishers of source code that allows people to read DVD disks that they have legally purchased. And that judge did something ethical, letting a collection of megacorporations walk all over the rights of the people? I’ll wager he pocketed a hefty bribe for that.
The legal industry has a collection of people, ranging from the nicest, to the worst. Some lawyers are dedicated to helping people, and the world, by fighting injustice. But a lot of them are dedicated to getting rich, and unfortunately, them getting rich involves walking over the rights of the people, to whom a more complex legal system becomes the club with which any opressive organization with enough money can justify any injustice.
I don’t agree with NB’s blanket statement, but I think it’s the most accurate way to sum up the profession in general, because the actions of the scum are more damaging that the actions of the useful lawyers are helpful.
“First of all, I would strongly disagree that most lawyers want to be judges.”
—Billdo
“Many lawyers aspire to be judges, and most judges are lawyers”
—mangeorge
First off, there’s a big difference between “many” vs. “most”. Was your mis-quote an honest mistake, or was it one of those lawyer tricks.
Ok, maybe I should have said “trial lawyers”.
Second off, if you sit in a trial as a spectator and take the lawyer’s actions at face value, there’s no way either one of them could serve as the judge. All that passion!
Also, I’ve been on a couple of juries and I think that jurors in important cases could be better educated in the ways of the court. We can be fooled.
Peace,
mangeorge
My experience with pro pers is that they are generally obsessive and paranoid. They are usually representing themselves because even the most desperate of brand-new lawyers won’t take their cases. They may initially come across as reasonable and charming, and may con some new kid into taking their case, until something happens to bring their paranoia into full bloom. They may run through three or four lawyers if they are charming, earnest, and convincing enough, but sooner or later something happens and then they are shopping for a new lawyer again or, eventually, end up representing themselves.
Once they lose their intial case they assume that it’s because of a conspiracy against them, and they will then file an action against everybody they believe belongs to that conspiracy, usually including all the lawyers on both sides of the case and every judge on the same bench as the judge who ruled against them. (I had one once where, for some unknown reason, he included Bob Hope. Or maybe it was Bing Crosby. I never figured out why.) Federal judges are used to seeing these cases because the pro pers will file in federal court, claiming that the state bench is prejudiced against them, or else that their civil rights have been impinged. When the federal judge throws out their case they assume that s/he, too, has been corrupted by the conspiracy, and they vow to “take it all the way to the Supreme Court.” They waste more time, money and resources until the Supreme Court denies cert., and then they “know” that the Supremes have been corrupted too.
They’re nasty when they lose, too. I’ve had security guards at the Court of Appeal take me out of the building through the extra-secure judges’ elevator and entrance because of a crazy pro per making threats at me. At my old firm we hired bodyguards for one of the lawyers in trial against a pro per, after the pro per made death threats after losing some motion. Whenever one would show up at the office (usually unannounced, and always belligerent), we’d call the security guard to be with us when dealing with them.
Pro pers claim that they can competently represent themself, then whine when the judge rules against them because they didn’t follow the proper procedure or analyze the law correctly. Pro pers take up more than their fair share of time, money, and court resources, filing motion after motion after motion, all of them usually incomprehensible and virtually always wrong on the law.
The above is true for 90 per cent of the pro pers I have come across in 16 years of practice. There is a small group, about ten percent, who are sane and for whatever reason – the thrill, the challenge, nothing else to do, no ability to pay for a lawyer – manage to do a competent job. Generally speaking, though, when a case comes in (at least in civil litigation) with a pro per on the other side, you’ve got a nut on your hands.
I actually thought this topic would be about lawyers fighting judges and I had a question about that exact thing from watching previews of The Practice episode for this weekend.
What is “sidebar, Your Honor”?
I think it is asking the judge for a private conference, but what is the reason? Shouldn’t everything be public? Isn’t “public trial” a right? Also, in the previews, the judge says, “denied”. Can he do that if there is a rule for private conferences?
The nut cases that file endless motions from their jail cells have to be the worst. They get leave to file in forma pauperis, so filing fees are not a deterrent, and then there’s no stopping them.
Your description of their escalating tactics is right on the nose. It is very scary. I have seen a few cases in which the court will enter an order forbidding the clerk from accepting any more filings from an individual (unless he’s responding to someone else’s action or paying the filing fee) - but they have to build an incontrovertible record of abuse before that remedy can be taken.
And of course, even if it’s an absurd action, someone has to prepare an answer to avoid a default judgement, which is time and money for the person or company named.
The concept of a sidebar is, exactly as you surmise, a private conference. The goal is not to make it private from the world at large, but from the jury, since there are things a jury isn’t permitted to hear. It’s generally used for small issues that are quickly disposed of. For more complex issues, the judge might remove the jury while your motion is being argued.
Can the judge deny a sidebar request? Well… yes. But it might help the defendant’s appeal down the road.
An appeal is not usually automatically granted (some exceptions, such as death penalty cases or other “appeals as of right” aside). In order to appeal a guilty verdict, you must allege some error that the trial court made. You can’t simply say, “I don’t like this guilty verdict, so I appeal.” You must be able to point to some mistake, or set of mistakes, that caused your trial to be unfair.
But here’s the rub: in general, in order to argue that an error was made, you must first have brought the error to the attention of the trial court. This rule does three things: it prevents a defendant from inviting an error or just sitting silently while the trial court makes some error that hurts his rights, and hoping he gets a ‘not guilty’ verdict anyway, and then appealing if he doesn’t. It also ensures that the trial court has a chance to correct any errors it may make, which helps the orderly administration of justice and preserves scare judicial resources. Finally, it ensures that any errors have been argued by both sides, so the appeals court has a full record to judge.
Some errors are held to be plain error – that is, they are so serious that even if they are not brought up in the trial court, they are so blatant that they clearly deprived the defendant of a fair trial, and the appeals court will consider them even if they weren’t mentioned at trial. But plain error is a rare bird.
In order to call the trial court’s attention to an error, a party must object. The objection must be made with enough specificity that the judge knows exactly why you’re objecting. He then rules on the objection, and the trial moves on. In general, if you do this, you have preserved the issue for appeal – that is, you told the trial court that you think an error was made, the judge decided on it, and if he decided against you can ask an appeals court to take a look at it later.
But what if your objection isn’t specific enough? And what if, to make it specific enough, you have to say some things that the jury shouldn’t hear? That might be a time to ask for a sidebar, so you can fully explain to the judge the basis for your objection.
So, (finally) getting back to your question: what would happen if a defendant made an objection, and the trial court judge overruled it, the defendant asked for a sidebar, and the court denied the request? If the sidebar denied you a chance to proffer evidence, or to otherwise articulate the basis for your objection, then an appeals court would probably rule that you had sufficiently preserved your objection for appeal, because the judge never gave you a chance to explain yourself.
So it’s not the denial of a giant, basic right. But a sidebar is an important tool during a trial.
I would think that lawyers would be persons best suited to being judges. After all, they’re the ones that have spent years reviewing the law and learning the ‘tricks of the trade’ as it were. For example, look at Rick and Melin, seems to me they’re pretty knowledgable on the law, and they’re good at making good sense of arguments and the like, eh?
Now, as to Nanobyte, I would say you’re dead wrong.
The law does not supplant ethics, it is hoped to be a method of codifying ethics, so society can exist.
As to pro-pers, I gather from Rick’s comments that these are people that choose to represent themselves. Those people are probably nuts. Just my opinion. Or lawyers. Simply because the common man cannot defend himself in the courtroom as well as a lawyer could, know whatI mean? They just don’t know the laws, the rules of the court. Since they can, in criminal cases, get a defender no matter what(I think), to defend themselves is crazy. So, if you’ve got a kook as a pro-per, the judge will probably treat him as such.
WhiteNight:
I would think that there are few enough lawyers out there who have sold their souls to damage the world. I would bet that most lawyers and judges actually care for their profession and want to see right done.
I sold my soul to Satan for a dollar. I got it in the mail.
My experience dealing with people representing themselves is that the judges actually tend to give them a lot of extra leeway precisely because they are not lawyers. The judges will allow them to file things that do not conform to the rules; will allow them to file things late, or in the wrong format; and will allow them to proceed if they can articulate anything approaching a colorable argument for recovery. Lawyers, in contrast, are presumed to know the rules and the law and will not be excused for failing to follow them. If a judge is faced with a person proceeding pro se and doing his or her best to present a reasonable complaint in a reasonable fashion, the judge is likely to be very lenient with that individual’s efforts. If, on the other hand, a judge is faced with someone filing frivolous or vindictive crap that cannot be justified by any stretch of the imagination, the judge will rightly throw it out.
As someone who has practiced extensively against individuals proceeding pro se, including the so-called “freemen”, I can tell you that judges actually gives such people far more leeway than they give to lawyers, who are presumed to know what they’re doing.
In my jurisdiction, at least, the more interesting question than whether judges should have a history of practicing law is the question of whether they should be elected or appointed. All district court and supreme court judges here are elected, and must run for re-election ever six or eight years. This leads to concerns that judges who have to busk for votes may not be impartial. It seems to me, however, that appointed judges would have their own set of problems. I’m not sure which would be the better system. Any thoughts?
Surprisingly once when I was on jury duty, a Superior Court judge in CA suggested to us that we might want to try pro per representation.
He said that it sometimes is better to go to the trouble to sue someone in a civil matter in Municipal Court in CA (I’m not sure what the threshold is before it gets kicked up to Superior out here) because that court has a better chance of getting your judgment enforced, rather than going to Small Claims Court, where it is often harder to get someone to pay up.
(The judge was talking to the jury about general legal matters not related to the case in hand during a lull when we were waiting for a witness to show up.)
This judge mainly heard criminal cases, so he probably didn’t have to deal with too many pro per cases.
).