May 20, 2015

Judges Are People Too

The NY Times yesterday ran a story about how federal judges sitting in the Southern District of New York often seek each other's counsel. First thought: well yeah, of course they do, this isn't news. Second thought: we know so little about how the judicial branch functions that people are surprised to find out that the judges behave like human beings. The simplest take away is that lawyers should remember that how you are seen by one judge can impact on your reputation in front of other judges, including those you have never appeared before.

It's startling to be confronted with the fact that complete strangers have already formed opinions about you. It's particularly off-putting when the opinions aren't favorable. For instance, many, many years ago, when I was a teenager, I was at a party when a girl asked me my name. When I told her she said, "Ohhh, you're Michael Lumer," and walked away. Whatever it was that she had heard, it sure wasn't good.

For those of us that appear frequently in the same courthouses, we undoubtedly have reputations. It may not be consistent, and judges may not always agree, but you are not unknown. A friend of mine clerked for a federal judge who liked to do impressions of lawyers and would often make less than charitable comments about their skills and personalities. I recently heard of a judge telling lawyers during a hearing on a discovery dispute that she had asked her colleagues about these particular lawyers and received back less than flattering reviews.  Of course this happens. Lawyers talk about judges all the time; why wouldn't judges talk about the lawyers?

As an an aside, there's nothing wrong with judicial counseling about thorny legal issues. As long as the presiding judge reaches his or her own opinion, it makes no difference if it was arrived at after considering input from other judges. Certainly, judges look to other courts' reasoning and though processes in prior cases in their decision making, and there's nothing substantively different about simply asking directly. Besides, the available option is none too appealing, which is to say that requiring a judge who's unsure how to proceed to proceed blindly or simply flip a coin, rather than seek an opinion from a fellow jurist, makes no sense.

Of course judges talk to each other. Just like other co-workers often talk to each other. They doubtlessly talk about the same wide range of stuff, ranging from what they did over the weekend, to family matters, to what's going on at work. And just like the rest of us, they not only seek and give advise about how to handle a seemingly novel or tricky work-related question, they also share stories about the lawyers they see in court. Get caught fibbing about a case, show up unprepared, make moronic arguments without realizing how ridiculous you sound, and you are building a reputation you'll have trouble losing. Shocking? Hardly. And that's my CLE for the day.

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