Is ignorance often bliss for laypeople having contact with the legal system? I have noticed that nonlawyers enjoy a much more relaxed attitude with the judicial environment than we lawyers do. We get uptight, bending over to display reverence while the laypeople have no such qualms, doing what comes naturally, expressing themselves with complete candor.
For example, when a judge enters the courtroom, he or she takes a short bow toward the body of the court and the lawyers return the compliment, also taking a bow. Some lawyers must think that the outcome of their case has a greater chance of success if they take a couple of extra bows. I wonder whether the judge picks up on this extra layer of deference and gets swayed, thinking, “This guy is tilting back and forth like an oil rig. I like his case already.”
A number of times I noticed my clients and other laypeople looking at one another, emitting a smile during this ritual. One client participated in this ritual in his own way, giving the judge a thumbs-up. The judge looked puzzled, as if she thought, “I must have done something right already.”
Many lawyers also tend to throw dubious flattering phrases at the judge even before the case starts. I have often heard them in announcing their names saying something like, “If it please Your Honor, my name is Lawrence Coopersmith, representing the plaintiff.”
When I hear this salutation, I think of the song those Siamese cats sing in Disney’s Lady and the Tramp: “We are Siamese if you please. We are Siamese if you don’t please.”
Clients will often resort to comments evoked by emotion, having little bearing on the merits of the case. I once represented a gentleman on a charge of driving under the influence. He was a proud World War II Navy veteran who obviously had experienced more trying experiences than this indictment. In the midst of a robust cross-examination by the crown attorney (aka prosecutor or DA), he said with utter confidence, “You are harassing me with all these questions. I spent years in a submarine dodging depth charges. There is nothing you can do to me. “
The young prosecutor was taken aback, obviously shaken. The judge who seemed somewhat bored with the matter to that point suddenly perked up. He said to the client, “Mr. Cerniek, we do acknowledge your service to our country, but please just answer Ms. Fitzmichael’s questions and we shall all be out of here soon.”
I thought to myself, “A lawyer could never go off on that tangent like that.” It would, however, be refreshing and liberating to be able to say to a judge, “Your Honor, you say my witness’s comment is hearsay, but you must admit this testimony. After all, I served for thee years as a Navy SEAL.”
I somehow doubt whether the judge would then say, “Actually, counsel, serving as a Navy SEAL is an exception to the hearsay rule.”
I also recall a matrimonial case where the judge ordered my client, a musician, to pay his wife some arrears of spousal support. My client, Rick, did not like this ruling and told the judge outright, “For that amount of money, I can get myself a new set of drums.”
The judge added that, in default of payment, Rick would have to spend some time in jail.
I cringed a little because Rick was behind in paying my fees at that point. I wanted to express myself with the client’s candor but refrained from saying, “Your Honor, with that amount of money, Rick can pay off my outstanding fees account.” Where is the justice?
Sometimes the litigants have no problems telling what the judge outright what they think of the judicial system. I was in court once waiting for my case to be called when the case before mine involved a short hearing where the judge had to assess a legal bill between a lawyer and her client. The client, a bit edgy, wasted no time jumping on the judge, saying, “I know exactly what’s going to happen: You judges and lawyers stick together like glue.”
The judge actually went on the defensive, presumably to try to refute the client’s suspicions about any possible systematic bias. I don’t know if he succeeded in persuading the client that judges are not necessarily sympathetic to lawyers; I did, however, think I would have liked to have been before that judge in the case where Rick still owed me money.
And laypeople’s relaxed attitudes toward judges are also apparent out of the courtroom. One of our courthouses in Toronto houses trial courtrooms on the upper floors of a tall high-rise. There are no separate elevators for the judges. During a lunch break as my client and I were about to enter an elevator to descend, we noticed the trial judge heading for the same elevator. I hit my brakes, as did some colleagues, allowing the judge to enter by herself.
My client was surprised. He said to me, “That was our judge. Why didn’t we ride down with her? We could have explained that traffic signal to her better.”
That comment had a couple of colleagues who overheard it giggling. The truth probably is, we all likely shared that unattainable fantasy. After all, we’re lawyers.
And what happens when we come across judges out of the courthouse?
As lawyers, knowing what we know, do we unwittingly somewhat deify judges? It is not unusual to see judges having lunch at restaurants near the courthouse. I do not recall ever approaching one and engaging him or her in a dialogue. I thought of that Old Testament scene with Lot’s wife. It’s almost like I felt if I did so, I would instantly turn into a pillar of salt.
A client of mine accompanying me once noticed my discomfort. When I told him there was a judge sitting at a nearby table, he said, “Wow! I’ll bet you thought judges don’t have to eat.”
Judges certainly can wield power, deciding whether you are entitled to a sum of money or you will lose your liberty. Lawyers are more uptight about this situation than the general public. I think of that comment by the iconic comedienne and film star Mae West in a courtroom scene in My Little Chickadee, where the judge says:
“Are you trying to show contempt for this court?
Mae West in her character as Flower Belle Lee responds, “No, Your Honor. I’m doing my best to hide it.”
Now what are the chances of a lawyer ever coming up with a gem response like that?
Are we lawyers too invested in the system? I think of Mark Twain who said, “All you need in this life is ignorance and confidence; then success is assured.”
Marcel Strigberger, after 40-plus years of practicing civil litigation in the Toronto area, closed his law office and decided to continue to pursue his humor writing and speaking passions. His just-launched book is Boomers, Zoomers, and Other Oomers: A Boomer-biased Irreverent Perspective on Aging. For more information, visit MarcelsHumour.com and follow him at @MarcelsHumour on Twitter.
This column reflects the opinions of the author and not necessarily the views of the ABA Journal—or the American Bar Association.