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

Editor’s note: This is Part 3 of an ongoing series of fables that were originally published in Green Bag. This set was published in 2015.

The Beneficial Ritual

When a Forest Glen creature wanted to plead guilty to a criminal charge rather than go to trial before Owl, Owl required answers to a lengthy list of questions to ensure that the creature was acting voluntarily and intelligently, understood the rights the creature was giving up by pleading guilty, and had in fact committed the offense. Indeed, the Three Vultures insisted that Owl be assiduous in asking these questions. Since the advocates knew all the questions in advance and coached their clients on the correct responses, the process became ritualistic and predictable. Nevertheless, in preparing their clients on how to answer, the advocates were compelled to educate them on all their rights and risks, and the danger of an uninformed plea was reduced to near zero.

Moral: Ritual has a purpose when preparing for the ritual compels a defendant to consider carefully the choices to be made.

The Damaging Donkeyisms

Snake decided that it was time to improve his trial advocacy. He signed up for a course taught by a famously successful advocate who was not from the Forest Glen, namely, Donkey, of Barnyard fame. Snake and other junior advocates spent a week with Donkey in the Barnyard, learning and practicing his techniques. By the time Snake returned to the Forest Glen, he had unconsciously adopted Donkey’s mannerisms, his folksy style and accent, and even uttered the occasional hee-haw. But at Snake’s next trial in the Glen, the jurors were distracted by these Donkey characteristics, finding them counterfeit coming from Snake.

Moral: It is important for an advocate to be authentic. Jurors quickly detect phoniness.

The Boastful Woodchuck

Like many advocates, Woodchuck was a garrulous fellow. He loved to talk about his cases and to dress them up in a way that made him shine. After a little wine, he was particularly entertaining. One evening at a dinner party he regaled listeners with what he depicted as his great successes in representing Chipmunk, a longtime client. Woodchuck did not actually disclose confidential information but, when Chipmunk heard through the Forest Glen grapevine that Woodchuck had been talking about him and his legal affairs, he was offended. Thereafter, Chipmunk (who had always paid Woodchuck promptly and without question) took his legal business to Frog, and told Frog why. Frog was careful not to repeat Woodchuck’s error.

Moral: Circumspection on the part of an advocate is not only ethically appropriate, but also good business.

The Unreliable Otter

In law school, Woodchuck’s professors drummed into him the strategy of pleading in the alternative and arguing two defenses simultaneously even if they were somewhat inconsistent. (“The stoplight wasn’t working; alternatively, if it was working, it was green.”) Woodchuck found that the strategy worked well in his summary judgment motions before Owl and in appellate briefs before the Three Vultures, and that frequently he could win a motion or an appeal on one of his alternatives even if the other failed. But now Woodchuck had his first case where he was defending his client before a jury.

The case was this: Woodchuck’s client, Professor Beaver, did extracurricular consulting on engineering and water issues. The dispute at trial was whether Otter, who worked part-time in Beaver’s consulting business, had obtained discarded pine logs from the Forest Glen managers on the basis that in exchange Beaver’s business would inspect and repair the Forest Glen dam at no cost. As it turned out, Beaver submitted a substantial bill for the inspection and repair services and, as a result, the Glen managers wanted payment for the logs. They sued Professor Beaver, and Woodchuck defended him.

In the course of the trial, Woodchuck called Otter to the witness stand.

Woodchuck: What was the market value of these logs?

Otter: Nothing. It was a favor to remove them, for most folks would have charged good money to take them away.

Woodchuck: Did you say anything to the Glen managers about a quid pro quo for the discarded logs?

Otter: Absolutely not.

Woodchuck: Did you say to them that Beaver would do a complimentary inspection and repair of the dam in exchange for the logs?

Otter: Of course not. As I recall, we never talked about the dam.

On cross-examination, Otter was shaken in his testimony that the dam inspection and repair and what it might cost had never been discussed at all. As a result, Woodchuck called him back on redirect to clarify:

Woodchuck: If you had discussed dam inspection and repair with the Glen managers, would you have had authority from Beaver to say that he would perform those services for free?

Otter: No, I would not. Beaver always wanted all his money.

Woodchuck followed the argument-in-the-alternative strategy in his closing argument, urging the jury that the evidence showed that the logs were worth nothing, that Otter never spoke to the Glen managers about a complimentary inspection and repair by Beaver and, if Otter did speak about it, that Otter had no authority from Beaver to do so.

In deliberations, the jurors concluded that the various denials and statements were unlikely all to be true. They therefore lost confidence in Otter’s testimony and Woodchuck’s defense and gave their verdict against Beaver.

Moral: Alternative versions of the facts may work for judges and lawyers who are trained to compartmentalize their thinking, but jurors applying common sense generally prefer a single consistent narrative.

What the Beaver Knew and What the Donkey Did

Professor Beaver had taught and written about Evidence law for many years. Some of his stock lectures became so famous that they were used regularly in continuing legal education for advocates in the Forest Glen and elsewhere. His lectures were very popular. Beaver came to believe that his academic knowledge would make him an excellent trial advocate, and he took on some high-profile cases. But his success rate at trial was abysmal because, despite his academic knowledge, he was unable to engage jurors.

At the same time, the renowned Donkey of Barnyard fame had a stellar record of winning difficult high-profile cases. The Magpies always covered his successes even though he was from a different jurisdiction. As Donkey aged and became tired of the pressures and stresses of trial advocacy, he cut back the number of cases he took and obtained a position as adjunct law professor at the law school where Beaver taught. Although the Gophers (law students) loved to hear Donkey’s self-aggrandizing tales about his courtroom exploits, it turned out that he was not adept at conveying information in a way that was organized and easy to remember and apply. So although Donkey was popular, his Gopher students did not learn much beyond his stories.

Moral: Knowledge of a subject does not guarantee the ability to use it successfully in practice; conversely, those who possess practical skills are not necessarily able to convert their natural abilities into lessons that others can learn and apply.

The Cougar and the Wolf Scorch the Forest (Or At Least Their Clients)

Advocates in the Forest Glen handled most of their lawsuits collegially, kept them simple, avoided running up unnecessary expenses in preparing for trial, and obtained an early trial date from Owl. But a lawsuit over the effects of acid rain on the forest and its denizens involved such high stakes that one side brought in WolfPack and the other side brought in Cougar Group, expensive advocates from outside the Glen, to prosecute and defend the case.

WolfPack and Cougar Group had never practiced in the Forest Glen previously. They fought over every possible issue, from what documents they should disclose, to who the experts should be. They refused to agree on even modest extensions of time, filed multitudinous motions, took depositions of everyone they could think of, accused each other of professional malfeasance, and generally made Owl’s existence painful. The process delayed the proceedings and cost their clients huge amounts of money.

Moral: Advocates who regularly confront each other in disputes generally learn to behave with civility and collegiality, but advocates who work in a larger and more anonymous environment tend to misbehave and try to take advantage of each other.

The Owl’s New Ritual

When Owl was still a new jurist, Fox and Snake asked her to conduct a settlement conference of a civil dispute. They both provided confidential settlement memoranda to Owl in advance, and came to the conference with their clients. Owl prepared thoroughly, studied all the case documents, read the confidential memoranda, and researched what Forest Glen juries had awarded in similar cases previously. As a result, she believed that she knew exactly where the case would/should settle. She told the parties her view at the outset of the conference and received nothing but objection and argument from clients and advocates on both sides. After almost a full day of wrangling, Owl did settle the case in the general neighborhood of what she had originally predicted, but everyone was unhappy.

Thereafter, Owl decided not to reveal at the outset her views about where a case should settle, but instead invite the parties and their advocates to explain their positions and their case values first, and then gradually inject her views into the ensuing discussion. The parties and their advocates were much more content with their resulting settlements.

Moral: There is a ritual to bringing opposing parties to agreement. It is important that clients hear their advocates make their best arguments and also hear their opponents’ best arguments to produce a more realistic risk assessment; advocates want their clients to see how vigorously they have advanced their interests before urging a compromise.

The Vultures’ Factors

In explaining a decision, the Three Vultures sometimes enumerated several factors that they deemed worthy of consideration in resolving a particular legal issue, even though one or two of them alone should have been determinative of the outcome. As a result, in similar controversies, the Glen advocates and Owl felt it necessary to collect and consider evidence on all the Vulture-listed factors, and often they were unable to predict the outcome because of the number of factors and the different directions in which they pointed. Those cases therefore became far more complicated and time-consuming to resolve, clients had to pay more, and other cases before the trial tribunals got delayed.

Moral: Decision-making rules devised to achieve the best possible justice in an individual case may, if they are too complex, end up reducing and delaying justice at large.

The Wise Fox and her Presentation Assistant

Woodchuck was challenged when it came to exhibits. He could never find the right one. Early in his career, he used large blowups on poster- board, but he routinely lost track of them, and spent measurable time before the Forest Glen jurors looking for the correct one. With electronic evidence presenters, he never became comfortable with the zoom feature or the highlighting function that a witness could use, or with a laptop for maintaining all his exhibits electronically. As a result, the jurors were distracted in their ability to follow Woodchuck’s case. Fox was equally challenged by exhibits and electronics. But she realized early that she needed help, and always brought an assistant who could find the exhibits, highlight electronically via a laptop, and generally make the electronic evidence presenter work. As a result, Fox’s presentations were much easier for the jurors to understand.

Moral: It is a serious error for an advocate to ignore the physical mechanics of presenting the case.

The Security of the Hawks

The Hawks were charged with maintaining security at the Forest Glen tribunal, maintaining custody of prisoners, protecting witnesses, and ensuring the safety of the arbiter and the jurors. They were professional and highly respected. They prided themselves on keeping abreast of developments in their profession everywhere. As the Hawks learned of violent attacks on trial tribunals in other jurisdictions, they urged increasingly elaborate security precautions in the Forest Glen to reduce the risk there to witnesses, tribunal personnel, and attendees. It was difficult for Owl and her colleagues to resist any measure that promised safety, and they therefore acquiesced. But as a result of these new security measures, the advocates could no longer easily approach Owl, and a separation grew between the arbiter and the advocates. Moreover, the security apparatus that Glen denizens had to penetrate in order to observe proceedings deterred them from attending court as observers. Despite the relative calmness of the Forest Glen, Owl herself grew more apprehensive because of the information about events elsewhere. As a result, Owl’s tribunal grew more and more remote from both the advocates and the citizens.

Moral: Ensuring physical security for a tribunal sometimes carries a negative civic and social cost.

The Mystery of Harmless Errors in the Forest Glen

The Three Vultures were excruciatingly aware of the costs and emotional and administrative burdens they created when they reversed a case that Owl had decided and sent it back for a do-over. They also recognized that perfection was not achievable in proceedings in the Forest Glen. Consequently, when they discovered an error in the Glen proceedings, they said so, but then proceeded to determine whether the error had caused serious prejudice to the fairness of the proceeding and the outcome, or whether, on the other hand, it was harmless. This approach worked well, for Owl and the advocates learned what was proper and what was not proper in their roles, but not every verdict had to be overturned. As the years passed, however, the Three Vultures discovered that it was often easier for them not to decide whether there was error at all, but merely to say that even if it was error, it was harmless. As a result, although individual decisions were upheld, Owl and the advocates were left with heightened uncertainty over what the applicable rules were.

Moral: For guidance of the trial judiciary and the bar it is best for an appellate tribunal first to determine whether error occurred before announcing that what occurred, error or not, was harmless.

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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