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

Editor’s note: This is Part 4 of an ongoing series of fables that were originally published in Green Bag. This set was published in 2015 to 2017.

The Unknown Unpredictability of the Visiting Condor

At one point, Owl’s caseload became so heavy that her docket fell seriously into arrears and she had to seek assistance from away. As a result, Condor, a well-regarded but tough arbiter from a distant jurisdiction, was brought in to preside at trials. Strikingly, the Forest Glen advocates resolved an unusually high percentage of their disputes by agreement just on the eve of trial before Condor, unlike their experience before Owl, where far more cases refused to settle.

Moral: Because advocates value predictability in their professional pursuits, they prefer a known arbiter, whatever her weaknesses, to an unknown arbiter, no matter how brilliant, and therefore do what they can to avoid the unknown arbiter.

The Fox’s Clever Closing

Snake had two separate personal injury lawsuits to try before Owl and a jury of the Forest Glen creatures. Woodchuck represented Skunk as the defendant in one of the lawsuits, and Fox represented Hedgehog as the defendant in the other. All three advocates did a fine job of presenting the evidence in the two cases. It was apparent to all the Forest Glen observers that the cases were difficult and that closing arguments would be important in persuading the respective juries.

At the end of his first case, Snake presented his closing argument to the jury in conventional fashion, explaining first that the facts and the law on liability favored his injured client Hare and that the jury therefore should find the defendant Skunk liable. Next, Snake proceeded to highlight the evidence of Hare’s damages and urged the jury to give Hare a generous verdict against Skunk.

When Woodchuck stood up to give his closing argument for Skunk, he followed the same format, explaining first why the jury should find that Skunk was not liable to Hare under the facts and the law. Woodchuck hoped that he had made a persuasive case for no liability, but he knew that he could not take the risk of failing to address damages in case the jury disagreed. His transition was clumsy. He said to the jury, “For the reasons I have just given you, you really don’t need to reach the question of damages. But I have to address damages in case you disagree with me; that is my duty to my client Skunk.” Woodchuck then proceeded to explain why, on the evidence presented, any damage award to Hare should be much smaller than Snake had requested. During deliberations, the jurors could not avoid feeling that Woodchuck did not really expect to persuade them on liability. Moreover, the issue of the appropriate damage calculations was fresh on their minds. They ended up awarding damages to Hare.

Snake used the same format for his closing argument in the second trial. But Fox had watched the first trial and its outcome, and she determined to use a different strategy than Woodchuck for her closing. When Snake ended his closing argument by telling the jury the generous damages he requested for his client Snail, Fox stood up to close for Hedgehog and launched straight into the weaknesses of Snake’s damages calculations. After doing her best to demolish Snake’s damages number, Fox said to the jury, “But you never need to reach these pesky calculation issues because there is no basis for finding my client Hedgehog liable to Snail in the first place.” Fox then proceeded to argue why the facts and the law favored Hedgehog on liability. It seemed logical to the jurors that Fox had argued lower damages in immediate response to Snake’s ending words on that topic, before she turned to liability. It did not occur to them in deliberations that Fox had any doubt about the merits of her defense, and Fox’s last words to them were her challenges to liability. As it turned out, they rendered a defense verdict.

Moral: Advocates who argue “but if” to a jury tend to weaken the power of their preceding argument. Plaintiffs’ advocates seldom confront that risk. But for defendants’ advocates in civil case closing arguments, it is often better to consider attacking damages first and liability last.

The Problem of the Famous but Possibly Partial Owl

After some high-profile cases that Owl had handled, one of the Magpies asked to interview her, and Owl agreed. The resulting story in the Forest Glen Gazette talked about Owl’s courage in making her decisions, and Owl’s views about various topics such as sentencing severity and processes, police behavior, and internet privacy issues. Owl rather enjoyed the attention and her new prominence in the media. But the advocates and Forest Glen denizens appearing before Owl began to question her impartiality and became concerned that she might have pre-ordained opinions in their cases.

Moral: Citizens and advocates (although not journalists) generally expect their arbiters to maintain a low profile and limit their expressed opinions to the cases they are required to decide.

A Courtroom Circus in the Forest Glen

When it was time to try the acid rain case, Owl was both acutely aware of its importance to the forest and apprehensive of whether she was up to dealing with the knowledge and advocacy skills of WolfPack and Cougar Group. Instead of treating the case as just one more trial, Owl considered every ruling in terms of how the media would see it, went to great lengths to explain each ruling in detail, and from the beginning gave unaccustomed leeway to the advocates. The trial became far too long and the advocates’ behavior turned the proceedings into a circus. Although Owl tried to regain control, she was unable to do so, and the Forest Glen denizens were deeply troubled by this example of their tribunal at work. Eventually, a mistrial was declared, and Condor was called in to preside at the new trial. From the beginning, Condor made clear that he, not the advocates, was in charge of the courtroom. Condor used some harsh rhetoric at first, but the advocates quickly came round. Condor also ignored the high-profile nature of the case and made his rulings promptly and concisely as he did in any ordinary case. The trial proceeded without incident to a conclusion, and the Forest Glen denizens and even the Magpies deemed it fair.

Moral: An arbiter must establish control of the courtroom at the outset. The importance of the controversy should not alter the arbiter’s courtroom role and behavior.

The Wisdom of the Retiring Owl

The Forest Glen prided itself on the independence of its arbiters. When the Glen was first organized, the founders concluded that the best way to ensure fairness and to protect the Forest denizens from more powerful creatures or majorities who might oppress them was to give the arbiters life tenure and prevent their dismissal except for serious crimes. The system worked well for scores of years; many of Owl’s predecessors were renowned for their courage in making fair and just decisions even in the face of popular resentment, and life tenure protected them from retribution.

But as the conditions of life improved and creatures lived longer, the risk grew that arbiters like Owl would become senile or decrepit before they retired or died. The authorities struggled to find a way to avoid that outcome without impairing the value of arbitral independence, but because suggestions of decrepitude could be used to mask disagreement with the arbiters’ decisions, the authorities found no easy answers.

Moral: Judicial independence has many virtues, but it carries a risk in the case of arbiters who refuse to step down when it is time.

The Vultures’ Cacophonous Chorus

There was no consensus among the Three Vultures over how to write appellate opinions. The First Vulture thought it critical that the decision announce a clear ruling at the outset, address all the reasons supporting the outcome, and provide a firm indication of the rules to apply, for maximum benefit to trial arbiters and advocates in future cases. The Second Vulture thought that the decision should demonstrate, in all its messiness and uncertainty, the difficult mental process by which the Vultures reached their conclusion, providing maximum transparency even at the peril of uncertainty in future cases. The Third Vulture was most interested in writing with wit and cleverness, stating matters provocatively so that the opinion would receive wide media attention and citation by other tribunals and academics. The result was a hodgepodge of writing styles, whispered criticism, and sometimes mockery of the opinions by the advocates and the arbiters.

Moral: Without agreement on the purpose(s) a written opinion should serve, there is sometimes dysfunctional dissonance in the appellate tribunal’s work product.

The Owl and the Flock of Filings

Owl became an arbiter in the Forest Glen before the digital revolution began. In those days the administrators for the tribunal gathered up the case files and brought them personally to Owl, often grouping them into categories (e.g., requests for continuances; requests for extra pages in briefing; substantive matters). This process made it easier for Owl to deal with them. Sometimes the administrators even summarized the simple procedural ones orally, with Owl simply endorsing the request on the margin. The administrators did not present the cases to Owl when she was on vacation or in the midst of a difficult trial.

With the digital revolution came online electronic case filing. The advocates loved it because they no longer had to come physically to the tribunal, and could file at any time of the day or night. It became apparent that advocates expected 24/7 electronic access to an arbiter. The administrative personnel managed the system remotely from their computer terminals and notified Owl electronically whenever a matter, no matter how insignificant, required her ruling. Owl received these notices on her mobile devices even while she was on vacation and during the most difficult and complex trials. They were stressful for Owl because receiving them made her feel that she must rule expeditiously. Advocates were not sympathetic to Owl’s plight because they faced their own stresses from client access to them 24/7 by email. Owl silently blamed the tribunal’s administrative personnel for creating the increased stress caused by the incessant electronic notices, even though the administrators had no intent to press her for immediate decisions, but were simply trying to fulfill their own administrative responsibilities, clear their electronic inboxes, and move the matters to Owl’s electronic inbox.

Moral: Online case filing systems carry tremendous advantages for lawyers and judges, but they can increase perceived stress by eliminating the informal screening functions that human interactions sometimes serve.

The Day the Woodchuck Became a Rat

Advocates Fox and Woodchuck were attempting to settle a dispute between their respective clients, employer Muskrat and her employee Otter. Fox explained to Woodchuck that, regardless of the dispute’s merits, Muskrat simply could not afford to pay what Otter wanted. Woodchuck thought that was plausible, but asked Fox to provide financial statements from Muskrat to support her asserted resource limitation. Muskrat was reluctant to provide them because she did not want her financial affairs to be public, especially to the creatures that worked for her gathering mollusks. Woodchuck assured Fox that he would not disclose the financial statements to Otter if he could see them himself and then advise Otter what he thought Muskrat could pay. On that basis Fox disclosed the financial statements. When Woodchuck saw them, he lowered Otter’s demand and the parties were very close to settling. In a settlement conference in front of visiting arbiter Condor, the advocates and clients were all present, and Woodchuck decided to try to get a bit more for his client. In supporting his request for more, he said to Fox in front of everyone, “I see that Muskrat is taking 1,000 surplus mollusks out of the business each quarter. She should be able to pay more in settlement.” Muskrat was outraged at the breach of confidence and the fact that now her employees could know her financial affairs. She withdrew her previous offer, asked for the return of her papers, and refused to settle the case. Fox vowed to herself never to accept Woodchuck’s promise of confidentiality in the future.

Moral: A lawyer’s vow of confidentiality is sacred. Breaking it causes damage that is almost impossible to repair.

Professor Beaver’s Autobiographies

Academy law student Gophers regularly asked Professor Beaver for letters of recommendation as they sought employment with an arbiter or advocate. Professor Beaver saw the requests as part of his job, and was willing to oblige. But when arbiters and advocates received such letters from Professor Beaver, often the letters told them more about Professor Beaver – the courses he taught, his teaching techniques, his research interests – than about the Gopher who was seeking employment. On the other hand, arbiters and advocates learned over time that when Professor Beaver was truly enthusiastic about a Gopher, he sent a quite different type of letter, or even called directly, and spoke then only of the Gopher’s qualities and diligence, not Beaver’s own pursuits. The difference was even more substantial when Professor Beaver was furnishing the reference to a personal friend.

Moral: There are references, and then there are references. When the professor writing a letter of recommendation has little to say about the student, the letter tends to fill up with information about the professor. Convincing references are far more focused on the candidate, particularly if the professor cares about his or her relationship with the person receiving the reference.

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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