Should Judges Be Civil, Just As Is Expected of Lawyers?

On July 21, a federal judge in Texas mocked some lawyers in an opinion that included this language:

When the undersigned accepted the appointment from the President of the United States of the position now held, he was ready to face the daily practice of law in federal courts with presumably competent lawyers. No one warned the undersigned that in many instances his responsibility would be the same as a person who supervised kindergarten.

The full opinion can be found here (PDF). It was mentioned on a number of weblogs, including Begging to Differ, The Curmudgeonly Clerk, and Overlawyered.com. On Begging to Differ, the opinion was said to include this message to lawyers:

Just because the lawyers are litigators doesn't make overly litigious behavior acceptable. Petty sniping and inability to agree on matters that won't affect the outcome of the case are traits that will surely get a lawyer on the judge's bad side. And that just might affect the outcome of the case. It's not just bad manners, it's bad lawyering.

As a lawyer who litigates before many different judges, I tend to agree. On the other hand, I know some judges who, ironically, don’t seem to like lawyers very much anyway. Or perhaps I can put it more bluntly: they seem to hate lawyers. So when I see an opinion like the one from Texas, I assume there might be another side to the story.

[Below the fold: Differing views of the Texas opinion.]

Apparently, I’m not alone. Following are three comments about the Texas opinion from readers at Begging to Differ (the first one) and the The Curmudgeonly Clerk (the following two):

This opinion suggests failure to control the litigation. If the judge had paid sufficient attention to the case, there should be no need to bully the lawyers this way. If you search around the Internet, you'll see that this judge has written several dismissive opinions in verse. Life tenure should not be a license to impose a foul temper on litigants and lawyers.

This is crap. If either judge were able to control the litigation he wouldn’t need to resort to alliteration. I think this behavior by judges and attorneys is the inevitable result of a legal culture which has turned out a bunch of egomaniacal idiots.

I agree with [the previous comment], and as I've said before, I don't find judges' attempts to be witty and clever in their judicial opinions to be funny, entertaining, or appropriate. If I want wit and humor I'll turn on the tv.

Would I be risking my law license if I said I agree with these comments? I'm not sure, but it doesn't matter, since I don’t know enough about the Texas case to form an opinion. I do think I’m safe in saying this, however: Shouldn't judges be civil, just as lawyers are expected to be?

Comments

[BTD Greg]

I think the obvious answer to your question is "yes, of course they should." But that's of very little practicle consequence to lawyers, especially those who are practicing in the federal courts. The judge will behave as he or she will behave. The lawyer's job is to make sure that his or her interactions with the judge do not hinder (rather, help) the client's cause.

In this particular case, it's not clear whether the judge's response was justified, but it might have been. I also sympathize with the reasonable attorney who must deal with unreasonable opposing counsel, and gets caught in the crossfire when the judge decides he disapproves. I've seen that happen before, and it's not a good position to be in.

[Evan]

BTD Greg: I understand your point. But I tend to assume that most lawyers, even those who were the targets of the Texas judge's over-the-top metaphors, know that it's their job "to make sure that [their] interactions with the judge do not hinder (rather, help) the client's cause." And while the judge will behave as the judge will behave, those same lawyers are also responsible for zealously representing their clients' interests. I think it would be unfortunate if in doing so, their reputations are unfairly smeared by a frustrated op-ed writer residing within the body of an unhappy judge.

Maybe the "creative" judges need to have editors on their staffs, in order to protect them from their own "creative" excesses.

[David Giacalone]

Judges need to be civil but, like parents, need to keep discipline. I, too, am getting tired of judges trying to be cute and witty in their opinions. The availability of the weblawgiverse to instantly broadcast such "creative" decision writing (and turn obscure judges into folk heroes or contenders for Judge Judy's job) has a lot to do with this lack of good judgment on the part of judges -- too tempting to use that clever turn of phrase (as any weblog editor knows).

Judge Posner may have launched this trend of livening up judicial workproduct -- of course, he does it with much more talent and insight.

However, Evan, I don't think there's anything ironic in judges not liking lawyers. There are often many good reasons why familiarity (or consanguinity) breeds contempt.

[UCL]

I agree with David that maybe Judge Posner is the problem, not because of his style in particular (I'm actually a huge admirer), but because "everyone wants to be a Posner".