Ex Post: Fables by a Federal District Judge, Part I

Editor’s note: these fables and illustrations were originally published in Green Bag between 2013 and 2014.

The Fox’s Foundation

Fox was representing Hedgehog in a dispute over whether contractor Mole had properly supervised the workers repairing Hedgehog’s den. Fox called Hare as a witness and asked Hare whether Mole had supervised the workers properly. Opposing counsel Snake objected, claiming “Lack of foundation.” Judge Owl said to Fox, “You need to lay a foundation before I will permit that question.” Fox then proceeded as follows:

Fox: “Hare, have you ever been to Hedgehog’s den?”

Hare: “I have been visiting there on a daily basis for the past three months.”

Fox: “Did you have occasion on your visits to see Mole at work?”

Hare: “Well, I saw him a couple of times, but during the repairs he was hardly ever there.”

Fox: “How do you know that?”

Hare: “Hedgehog was ill, and I visited with him daily, all day long, during the repair period.”

Fox: “How many times did you see Mole inspect the building site during that period?”

Hare: “Twice. Five minutes each time.”

Fox: “What did you observe about Mole’s condition?”

Hare: “Each time he appeared bleary-eyed and unsteady on his feet.”

Owl: “Objection overruled.”

As a result of the careful foundation that Fox was prompted to lay, the jury found Hare’s testimony very important.

Moral: An experienced lawyer does not object for lack of foundation unless certain that the foundation cannot be laid.

The Mole in His Own Words

Snake prepared carefully for each witness in each case. For witnesses he cross-examined, he had a list of leading questions, with alternate lines available, depending upon the answers. As an inexperienced advocate, he tended to use leading questions for the witnesses he called for his own side of the case as well (unless there was objection), so that their testimony would support his theory of the evidence and the argument. In questioning his client Mole, Snake thus proceeded as follows:

Snake: “You have been supervising construction workers for 10 years, correct?”

Mole: “Yes.”

Snake: “And during that time no one else has ever questioned your job performance, correct?”

Mole: “That’s right.”

Snake: “You have never been inebriated on a job site, correct?”

Mole: “Correct.”

Snake: “And you never saw Hare at Hedgehog’s den during the ten occasions on which you came to supervise the repairs, correct?”

Mole: “Correct.”

Experienced opposing counsel Fox never objected that Snake was improperly leading his own witness. Although Snake obtained the answers he wanted, the jury never got to hear Mole tell in his own words what happened. As a result, in deliberations they were skeptical of this version.

Moral: Unless your witness is unreliable, let him tell his story in his own words. Juries pay more attention to the words of witnesses than to the words of lawyers.

The Hare’s Final Answer

Snake was cross-examining Hare over Hare’s testimony that Possum had a carrot in his possession. Snake succeeded in getting Hare to agree that, at the time, dusk was falling, Hare was in a hurry, and he was some distance from Possum. Snake concluded the line of questioning by asking Hare, “So you don’t really know what Possum was carrying, do you?” Hare blurted out in response, “Of course I do. I saw him take something long and orange out of his mouth and heard him scream, ‘This carrot tastes awful.’”

Moral: It is safer not to ask the final question. Instead, one can argue later, after the record is closed, that the witness could not be confident of what he saw.

The Unimpeached Muskrat

Fox was cross-examining Muskrat who had proven to be a credible witness against Fox’s client. Fox had in her hand a copy of Muskrat’s deposition transcript.

Fox: “So, Muskrat, did I hear you on direct examination say that the waterway around the dam was large?”

Muskrat (pausing): “Yes.”

Fox: “Do you remember that I took your deposition on January 12 of this year?”

Muskrat: “The date sounds about right.”

Fox: “And was there a court reporter there recording everything that you said just as there is here in the Glen today?”

Muskrat: “Yes.”

Fox: “And did you then swear to tell the truth, the whole truth, and nothing but the truth, just as you did today before this jury?”

Muskrat: “Yes.”

Fox: “And did you not then say – and I quote – that the waterway around the dam was huge?”

Muskrat (puzzled): “Yes.”

Whereupon, Fox walked triumphantly back to counsel table, threw down the deposition transcript, and said to Owl, “No more questions,” looking meaningfully at the creatures on the jury. The jury, however, was nonplussed by Fox’s performance.

Moral: Not every difference in the choice of adjective amounts to impeachment.

The Snake’s Not-So-Brilliant Brief

Snake filed a legal brief with Owl. Snake had worked on it late into the evening, fortified by a little wine. Some of Snake’s arguments were brilliant, but they dripped with sarcasm and vitriol. Fox, on the other hand, filed a brief whose logic was simple and plainspoken, without histrionics or memorable utterances. As Owl studied both briefs in deciding the controversy between the parties, she virtually winced each time she had to re-read Snake’s brief. Owl was much more comfortable re-reading Fox’s less vehement brief. In the end, Fox’s more temperate argument prevailed in Owl’s decision.

Moral: For persuasion, simple statements generally wear better and longer than sarcasm and bombast.

The Woodchuck Who Generated the Long Sentence

Snake was prosecuting a charge against two creatures for conspiring to bring red currants into the Pine Forest. Fox and Woodchuck were defending their respective clients. The evidence was very strong against both defendants. Fox realized that it was so, and persuaded her client to plead guilty and seek a lower sentence as a result of his admission. Woodchuck, on the other hand, persuaded his client that they should pull out all the stops. Woodchuck made every conceivable motion and took his client to trial. In light of all Woodchuck’s efforts, his client came to believe that he had a shot at winning an acquittal, but in fact Snake secured a conviction. The resulting sentence was higher than Fox’s client received. But Woodchuck thought that he had given his client the best defense possible.

Moral: Sometimes concession is in a client’s best interest. A lengthy and complex defense, no matter how assiduously presented, may not be justified.

Leniency for the Hedgehog

In another case, Snake prosecuted Hedgehog for his misbehavior in distributing a large quantity of the forbidden red currants and gooseberries to other creatures in the Pine Forest. Hedgehog was convicted. Snake asked Owl to punish Hedgehog severely, particularly given the large quantity found in his den.

Fox defended Hedgehog at sentencing. Fox urged Owl that Snake was overreaching by including in the quantity calculations a large amount of berries that remained undistributed in Hedgehog’s den.

Owl said to Fox, “Since Hedgehog distributed the currants and gooseberries in the past, and his den contained a lot more of them than he would consume himself, isn’t it reasonable to conclude that he intended them for distribution?” Fox thought this question over, and then replied, “Yes, I suppose that would be a reasonable inference.”

Fox then offered other arguments in support of leniency for Hedgehog. Owl listened much more favorably to these other arguments upon realizing that Fox would not press unreasoned positions.

Moral: Conceding a point sometimes lends greater weight to other arguments.

The Owl’s Instructions

Fox and Snake had completed the evidence in their case before Owl. They met with Owl to discuss what instructions Owl should give to the creatures on the jury as they considered the evidence.

Owl had prepared a draft of proposed instructions. Snake, who had not tried many cases, quibbled over each instruction, seeking minute changes in wording. Fox, an experienced trial lawyer, said on the other hand that the instructions were fine, and Fox proposed no changes. In their closing arguments, Snake argued the law, whereas Fox focused the creatures of the jury on the facts of the case, emphasizing those most favorable to her client. Fox prevailed.

Moral: Experienced lawyers generally win their cases on the facts, rather than the law.

The Fighting Fox

Snake and Fox were opposing counsel in a hotly contested civil case. They could agree on nothing. Owl held hearing after hearing trying to narrow and simplify the dispute, but Snake and Fox insisted on arguing each issue as if it were make-or-break. Finally, Snake agreed to concede on some unimportant issues, expecting Fox to do the same on others in response. But instead, Fox smelled blood and made even more strident demands. In every case with Fox thereafter, Snake refused to agree to any accommodation.

Moral: There is always someone who does not play fair, but the gambit does not work a second time with the same opponent.

How the Owl Gored the Boar

Owl had two sentencings to conduct that Monday. Both involved serious breaches of the Pine Forest rules, where Wild Boar and Wolverine had each viciously and without reason attacked another creature. There was a large attendance, with denizens of the Forest wanting to see justice rendered. Wild Boar’s case came first. Owl ripped into him verbally, refused to entertain any mitigating circumstances, disparaged Wild Boar’s character and ridiculed his excuses. The audience was entertained and gratified. For Wolverine, who came next, Owl had lost some of her negative energy. As a result, Owl was more even-tempered, listened to Wolverine’s arguments and treated him with more dignity. The audience was more bored.

As it developed, Owl imposed the same sentence on each creature, but Wild Boar went away muttering, and continued to threaten Owl for years thereafter even while confined. Wolverine, on the other hand, accepted his sentence quietly.

Moral: Dignified treatment of a miscreant can aid acceptance of the punishment.

The Three Vultures’ Delaying Demands

Owl was overwhelmed with cases to decide. When she was a younger arbiter, she tried to rule immediately after hearing argument, and the denizens of the Forest went away with a decision.

Even though one party naturally was unhappy with the outcome, everyone could get on with their lives. But as Owl’s caseload grew and became more complicated, and as the appellate tribunal, the Three Vultures, increasingly demanded that Owl provide a detailed explanation of each stage of her decision-making, Owl became more and more insecure about ruling immediately. Instead she took her cases under advisement and labored long and hard to generate noteworthy written decisions that the Three Vultures would find difficult to reverse. (They still did reverse!) As a result, weeks and even months passed before Owl issued her decisions, the parties could not proceed to order their affairs, and they certainly could not appeal the legality of a ruling that had not yet been made. So they suffered endless uncertainty and had to continue to pay their advocates to remain always at the ready.

Moral: Justice delayed is justice denied. Sometimes it is also justice made expensive.

The Forest Commission

The Forest creatures appointed a commission to promulgate and revise Forest rules on the proper punishment for particular infractions.

The commissioners took their job very seriously and gathered mountains of data on statistical correlations between factors like the nature of the offender’s crime and past criminal behavior, on the one hand, and the likelihood that there would be future recidivism, on the other hand. They also gathered data on the costs of confinement and on what punishments Owl and her colleagues imposed and the reasons they gave. They talked about victims’ rights, how to protect, how to deter deviant behavior, the need for just punishment and respect for the law, and punishments consistent from creature to creature. Their debates involved statistics, probability, morality and political demands.

Wolf was convicted of violently assaulting Sheep and came into Owl’s courtroom to be punished. In determining Wolf’s punishment, Owl was obliged to follow the commission’s pronouncements, as interpreted by the Three Vultures. But Wolf’s mate and Wolf’s cubs pleaded desperately for mercy notwithstanding the commission’s pronouncements, pointing out that they would be destitute if Wolf could not hunt for them and that they would have to ask the Forest denizens for assistance. The family of Sheep, whom Wolf had attacked, pleaded for harsh punishment, recounting Sheep’s veterinary bills and the devastating emotional impact of theattack on Sheep’s young lambs. The Magpies, reporting for the Forest Glen Gazette, focused their interest on these emotional pleas. Snake and Fox, respectively advocates for the prosecution and the defense, had to deal with the pronouncements of the commission and the Three Vultures, but they too appealed to the emotional side of the case in arguing to Owl the appropriate punishment. Owl faced an agonizing decision, knowing that the penalty she imposed would not satisfy Sheep and his family or repair their harm; that however much Wolf deserved his punishment, there would be unavoidable collateral damage to his mate and cubs; but that without harsh punishment Wolf and others like him might attack another creature.

Moral: Sentencing policy is abstract and idealistic; sentencing in practice is personal and painful.

Judge D. Brock Hornby

Judge D. Brock Hornby is a Federal District Judge serving in the District of Maine. He is a member of the Harvard Law School Class of 1969.
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