June 2008

Mother Teresa in a Black Robe or Pavlov? What Is Our Job as Judges?

by Jeff Tolman

A friend of mine, and fine jurist, recently had a judicial complaint filed against him for being disrespectful to litigants in his court. Now the Judicial Conduct Commission will hear evidence in an effort to determine a proper resolution.

I’m not surprised. After hearing a recent presentation by the JCC, I finally understood the answer. It’s better to be a miserable judge with a good bedside manner than a good judge without one. No judge has ever, to the best of my knowledge, been disciplined for having 85 percent of his decisions overturned on appeal. Many competent judges who never have their decisions overturned get disciplined every year for their poor bedside manner.

At first blush, no one should be disrespectful to litigants, or anyone. Common courtesy is a valued trait, in and out of the courtroom.

But the plot thickens. What is our job as judges? To be kind and gentle? Mother Teresa in a black robe? Or to modify behavior? More of a Pavlov?

One of my first revelations as the Poulsbo part-time municipal judge was that there are people with different priorities than I have. I remember well asking a defendant about failing to appear at his jury trial. He calmly responded, “I forgot.”

“Really?” I asked. “How? A jury trial would be a big deal in my life. How do you forget such a thing?”

“Just forgot,” he responded. “It isn’t the first, or last. It just skipped through my mind.”

Now I was genuinely interested in this foreign concept. “Have you ever missed surgery?” I wondered out loud, thinking that an operation, like a jury trial, would get my full attention.

“Twice.”

Now my brain was in fourth gear. What other life activities could I not imagine missing? “Ever miss the birth of a child?”

“Two out of five. Why? Is there a point to this?”

Maybe there really wasn’t, except to understand that the work-hard, pay-your-bills, don’t-break-wind-in-public rules I was taught aren’t universal. There are FM people in this AM world. Some end up as defendants in court.

So how do judges get across the rules society requires to this clientele? Quietly? Or boldly, like Judge Judy on steroids? Can soft words get through in a way that can help the defendants change their behavior and be in court less?

With inexperienced defendants, sure.

At times, though, judges need to have at their disposal harsh words. I need to be able to say, without fear of a judicial complaint, “Mr. Hadley, does it bother you in the least that it takes three strong men to bring your criminal history into the courtroom?” Or, “Mr. Crane, if you don’t show up next time, I am going to throw you in jail and heave the key into Liberty Bay. Enough messing with you!”

Of course, these words seem unconscionable to many. Like me, usually.

Until I see a defendant who knows more lawyers than I do. One that yawns as I am imposing the latest sentence. The guy who can mouth my kind and gentle, live-a-good-life speech along with me through a sarcastic smirk.

Growing up, I was told by my parents not to commit crimes and go to court. Nothing good happens to defendants in court, they pointed out. Defendants get fined and sent to jail. Community service, appointments with probation officers, and evaluations ordered by judges fill their days. Certainly staying within the bounds of the law has always been my intention. But while Mom and Dad’s words were persuasive, watching Scared Straight on TV solidified how terrible incarceration would be. After watching it, I doubled — no, quadrupled — my determination to stay crime-free. More than Mom and Dad’s urgings, the harsh, blunt words from the prisoners on the TV program scared me straight, and almost incontinent.

Do I hope my friend sits before an understanding panel? Yep. Can I imagine being discourteous to some people in my court? Yep. For the sake of being mean? Never. Only for the sake of getting their attention, and hopefully, to change their behavior so that it includes more time abiding by the law and less time in court. Or at least less time they are scheduled to be in court. 

Jeff Tolman is a partner with Tolman, Kirk & Franz in Poulsbo. Since 1981, he has served as district and municipal court judge pro tem. He can be reached at 360-779-5561 or jefft851@aol.com.