Judging the judges: With all due respect, of course
Can judges get nasty and difficult? I have been retired from my litigation practice in Greater Toronto for about two years now. I am therefore in a good position to answer that question with all confidence and security, and above all without fear of repercussions.
What can we say about judges, according them all fairness and due process? First, they all start off as lawyers, which is a good thing. However, the lawyers expect the judges to remember those days of long stressful hours slugging it out in the trenches and in front of not so nice judges, which is not a good thing. The problem is some judges, not all of course, develop a severe case of “judgitis,” which in short is Greek for “Move over Louis XIV, I’m on the bench now.”
Given their newly acquired judicial wings, this is not totally surprising. They have the power to incarcerate felons, financially enrich or destroy litigants, and even stop presidents and prime ministers in their tracks. I wish to discuss the nature of the position as well as the pet peeves the lawyers endure when the judge takes himself or herself too seriously.
A Superior Court justice once told me over lunch (yes, judges do eat) after being on the bench a few months that his job was the greatest job without having to work. It’s easy to see why.
First, a judge does not have to look for business. I doubt you’ll ever see a highway billboard reading, “Robbed a bank? Before coming to court, ask for Judge Bill W. Langley. No fees payable.”
Then there is the shipload of respect accorded a judge. In England, judges are addressed as “My Lord.” Barristers will quickly learn to utter the phrase, “Yes, My Lord.” This will be followed by, “Can I continue my argument, Your Lordship?” A female justice is addressed as “My Lady.” You get the picture.
Until a few years ago in Canada, we also used this regal nomenclature, but we found it a bit too pompous, so we switched to “Your Honour.” In the U.S. I guess that would be “Your Honor.” We still like our extra “u” in these parts. I understand as well that some American judges can be addressed as “Judge.” Don’t try that in Canada. The judge will see red, redder than an RCMP tunic.
In Quebec the salutation is even more regal. A high court judge is addressed as “Monseigneurie.” Upon entering the courtroom, you almost expect his or her announcement to be heralded by a platoon of flags and trumpets.
And when judges enter the courtroom, all rise before him. We never get that type of show of respect anywhere, not even when we enter a Walmart.
In addition to the respect they are accorded, members of the judiciary enjoy incredible perks. Here they get eight weeks of vacation per year. How many lawyers do we know who even approximate this figure? More so, how many do we know who even on a one-week vacation don’t interrupt their respite by keeping in touch with their office? A lawyer on the beach shouting orders to his office on a cellphone is as common as a sea shell. But noisier.
Perhaps the greatest perk is the ability to slip up and make wrong decisions. A judge blows it and the appellate court can correct the error. Even then, the judge is accorded respect as our Notices of Appeal in stating the grounds of appeal will read something like, “1. The learned judge erred in not excluding the psychiatric evidence of Dr. Marvin Berman, who is actually a dermatologist.”
Slip up a couple of times in the business world, and management gives you a pink slip. I doubt the contents of the pink slip contain the word “learned.”
But “judgitis” can get to the judges’ heads and they can get nasty. I have seen judges who are sticklers for the garb the lawyers sport. There was one who insisted that male lawyers appearing before him wore either black or gray pants. If some unsuspecting lawyer appeared in brown pants, Justice X would immediately interrupt him saying, “I can’t hear you.” The poor lout wouldn’t even know the problem was the colour (extra “u” here too) of his pants. He would just crank up his voice a few decibels. Before long, some colleague would whisper to him that it is not his voice that is the pariah, but rather his pants colour Justice X actually used to stand down the case. (I call him him X, as I still fear him and I don’t want to have to apply to the witness protection program.)
Then there is the critic judge, who manages to obliterate the client’s confidence in his lawyer. I witnessed an instance where a newbie lawyer was cross-examining a police officer in a driving under the influence case. The officer never mentioned smelling alcohol on the man’s breath, but sure enough the potential Perry Mason asked the cop that question. The judge, known for his rudeness to lawyers, interrupted saying, “Counsel, you are doing a great job of convicting your client.” He may as well have said, “Honey, I just shrunk your lawyer.”
Many other judges are polite, but overdemanding, forgetting what it was like back in practice. I have experienced time and time again judges who, as they announce the lunch break, will say something like, “Mr. Strigberger, I would like some law on that hearsay issue. I suggest you go to the library and find a few cases.” This judge no doubt ascribes to a scientific theory that lawyers don’t have to eat. At least he does not add insult to injury by adding the phrase “bon appetit.” That judge who had a problem with the brown pants might.
Another pet peeve is those judges who don’t respect our time. I am not only talking about the judges who start court late. I am referring to the judges who have no concept of case time management. The court docket list will be cluttered with motions. There is only time to deal with maybe four or five, but the judge will not excuse the lawyers in numbers six to 11, forcing them to hang around. Either the judge doesn’t care, or he or she is a strong believer in magic. It wreaks havoc for your day when your case lands into the hands of Judge Houdini.
I hope some judges read this missive and perhaps identify with some of the revelations and make life easier for the members of the bar. If this applies to you, please be considerate, Your Honour, My Lord, Judge or however you wish that I address you.
Marcel Strigberger, after 40-plus years of practicing civil litigation, closed his law office and decided to continue to pursue his writing and speaking passions.
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