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.

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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.

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

Editor’s note: This is Part 2 of an ongoing series of fables that were originally published in Green Bag. This set was published between 2014 and 2015.

The Magpies’ Conviction

Owl tried conscientiously to render fair decisions for the Pine Forest denizens. She consciously considered her biases in favor of winged creatures and strove to overcome them. She also consciously recognized that, unlike her, some creatures preferred light to darkness and she tried to set that prejudice aside. Nevertheless, the Magpies who wrote the Forest Glen Gazette and hosted its webpage were convinced that Owl was always affected by her own heritage and her customs, and that no one in public life could set aside such predilections. As a result, every story the Magpies wrote about Owl’s decisions started with: “Owl, who is a bird of the night, decided [as follows].” The premise helped to sell newspapers and advertising, because many denizens of the Pine Forest were ready to assume that all judicial decisions were pre-ordained by prejudice.

Moral: Those who live their lives based on prejudice assume that others must do so as well.

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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:

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